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Forks Taken and Roads Not Taken: Reciprocity and Standing to Challenge Faith-Based Spending

90 Pages Posted: 30 Mar 2010 Last revised: 24 Apr 2012

Mark Rahdert

Temple University - James E. Beasley School of Law

Date Written: March 19, 2010

Abstract

In Hein v. Freedom from Religion Foundation, Inc., the Supreme Court denied jurisdiction on the ground that the plaintiffs, as taxpayers, lacked standing to attack the constitutionality of alleged efforts to secure preferential federal funding for religious charitable organizations. In doing so, the Court split three ways on the proper scope and application of Flast v. Cohen, a Warren Court decision which allows taxpayer suits to challenge governmental spending allegedly in violation of the First Amendment’s Establishment Clause. While the Court did not overrule Flast, its decision casts substantial doubt over Flast’s future. This article explores the implications of Hein, both as a standing decision and as a harbinger of future Establishment Clause developments. After evaluating the theoretical limitations of existing standing jurisprudence, the article turns to reciprocity theory as a medium for explaining Flast’s deviation from Frothingham v. Mellon’s general rule against taxpayer standing. The article demonstrates that Flast is based upon the constitutionally non-reciprocal character of spending in aid of religion. It further demonstrates that Hein’s departure from Flast redefines the concept of constitutional injury in establishment cases, both by treating faith-based funding as reciprocal and thus indistinguishable from other sorts of spending, and by denying the existence of intangible or psychic injury when religious preference in the implementation of such funding allegedly occurs. As a consequence, Hein signals a major shift in Supreme Court thinking about the substantive scope of the Establishment Clause.

Keywords: justiciability, standing, taxpayer, spending, article III, establishment of religion, flast, valley forge, hein, frothingham, separation of powers, reciprocity, psychic harm, intangible harm, faith-based initiative, charitable choice, neutrality

JEL Classification: K19, K39, K40

Suggested Citation

Rahdert, Mark, Forks Taken and Roads Not Taken: Reciprocity and Standing to Challenge Faith-Based Spending (March 19, 2010). Cardozo Law Review, Vol. 32, No. 3, p. 1009, 2011; Temple University Legal Studies Research Paper No. 2010-6. Available at SSRN: https://ssrn.com/abstract=1577742

Mark Rahdert (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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