Ball on a Needle: Hein v. Freedom from Religion Foundation, Inc. and the Future of Establishment Clause Adjudication

Ira C. Lupu and Robert W. Tuttle: The authors are both on the law faculty of The George Washington University. Ira

Amidst a flurry of controversial decisions in the final days of the 2006-2007 Term,1 the Supreme Court delivered its opinions in Hein v. Freedom from Religion Foundation, Inc. 2 For several reasons, Hein attracted considerably less attention than the other decisions at Term's end, all of which were seen as manifesting the Court's general rightward turn.3 First, Hein involved the seemingly arcane and relatively inaccessible subject of taxpayer standing to sue in the federal courts. Second, the underlying facts in Hein presented a weak C. Lupu is the F. Elwood & Eleanor Davis Professor of Law; Robert W. Tuttle is a Professor of Law and the David R. and Sherry Kirschner Berz Research Professor of Law and Religion. The authors are also Co-Directors of Legal Research for the Roundtable on Religion and Social Welfare Policy, a nonpartisan enterprise sponsored by the Pew Charitable Trusts and operated by the Nelson A. Rockefeller Institute on State and Local Government, State University of New York. Some of the ideas in this Article first appeared in an essay the authors published immediately after the Hein decision on the website of the Roundtable, http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=60. The Roundtable's David Wright provided valuable comments on that essay, and the authors thank him. The views expressed in this Article are those of the authors, and do not necessarily reflect the views of the Pew Charitable Trusts or the Rockefeller Institute. The authors are very grateful to the faculty at Brigham Young University (Fred Gedicks in particular) for the opportunity to present this paper at a faculty workshop, where they were confronted with provocative and very helpful questions. The authors are also grateful to Lane Dilg, Richard Katskee, Dan Mach, and Mark Stern for very useful comments on an earlier draft. The mistakes are attributable solely to the authors. and intuitively unappealing claim that the federal government had acted unconstitutionally in holding regional conferences to promote the President's Faith-Based and Community Initiative. This was a lawsuit destined to go nowhere, even if the Supreme Court had affirmed the Seventh Circuit's decision to uphold taxpayer standing in the case.4

Moreover, the significance of Hein may have been obscured by the fact that the Supreme Court splintered into three groups and produced no majority opinion. In rejecting taxpayer standing in this case, Justice Alito, joined by Chief Justice Roberts and Justice Kennedy, relied heavily and explicitly on the character of the challenged conferences as executive rather than legislative.5 This, they concluded, served to distinguish Hein from Flast v. Cohen ,6 the Court's most prominent precedent upholding taxpayer standing in Establishment Clause cases.7 But none of the other six Justices accepted this distinction. Justices Scalia and Thomas concurred in the result but rejected the plurality's distinction between executive and legislative spending.8Instead, they joined in a separate opinion that urged the Court to overrule Flast and end what they viewed as the anomalous concept of taxpayer standing in Establishment Clause cases.9 In an opinion by Justice Souter, the four dissenters also repudiated the executive-legislative distinction on which the plurality opinion rested,10 but the dissenters concluded that the Court should affirm the Seventh Circuit's holding in favor of taxpayer standing.11

Far more than may appear on the surface, the outcome and opinions in Hein are likely to reverberate heavily through the process of Establishment Clause adjudication. Indeed, the fall-out from Hein was quick and dramatic:

1) A few days after releasing Hein , the Supreme Court vacated and remanded for reconsideration a decision that permitted taxpayers to seek an order to the University of Notre Dame to reimburse the United States for funds that allegedly had been spent in violation of the Establishment Clause.12 The challenged program had ended, and the case would have been moot but for the highly controversial reimbursement remedy authorized by the appellate court.13

2) That same week, the Department of Justice invoked Hein when it asked the Seventh Circuit to dismiss an appeal involving a taxpayer challenge to the Veterans Administration's policies and practices concerning chaplains in VA hospitals.14 Prior to the Court's opinion in Hein , the government had defended the VA case on its merits, and had not bothered to challenge the taxpayer plaintiffs' standing in the district court.15

3) Several weeks later, the Freed...

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