What the Hein Decision Can Tell Us about the Roberts Court and the Establishment Clause

29 Pages Posted: 24 Mar 2008 Last revised: 14 Jan 2009

Carl H. Esbeck

University of Missouri School of Law

Abstract

This extended essay plays off the Supreme Court's recent decision in Hein v. Freedom From Religion Foundation, Inc., 127 S. Ct. 2553 (2007) (plurality opinion), rejecting taxpayer standing where the claim on the merits challenges discretionary actions by officials in the executive branch said to violate the establishment clause. While the matter directly at hand is the scope of taxpayer standing first permitted in Flast v. Cohen (1968), the essay uses the "injury in fact" requirement for standing to delve into the manner by which the four opinions in Hein give us insight into how the Roberts Court will approach the establishment clause and the judiciary's role in policing government support for religion. The essay also demonstrates how what the Court terms a "generalized grievance" for which justiciability is denied unless Flast permits taxpayer standing, necessarily involves a claim where a structural clause of the Constitution is said to be violated rather than a rights-based claim. The above issues are all the more interesting because so far Hein is the only church-state case to come before the Supreme Court since the two newest justices, Chief Justice Roberts and Justice Alito, were appointed.

Suggested Citation

Esbeck, Carl H., What the Hein Decision Can Tell Us about the Roberts Court and the Establishment Clause. Mississippi Law Journal, Vol. 78, p. 203, (Fall 2008); University of Missouri School of Law Legal Studies Research Paper No. 2008-07. Available at SSRN: https://ssrn.com/abstract=1112254

Carl H. Esbeck (Contact Author)

University of Missouri School of Law ( email )

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