Court Reform and Breathing Space Under the Establishment Clause

Abstract

Flast v. Cohen held that federal taxpayers have standing to challenge government spending for religion. While Frothingham v. Mellon generally prohibits taxpayer standing in federal courts, the Court reasoned that the Establishment Clause specifically prohibits taxation in any amount to fund unconstitutional religious spending. For several decades Flast has been settled law that supplied jurisdiction in many leading establishment cases. But Hein v. Freedom from Religion Foundation, Inc. and Arizona Christian School Tuition Organization v. Winn signal that Flast may soon be overruled. This jurisdictional ferment raises two questions: Why this sudden shift? And what does it signify for the Establishment Clause?

This article develops two themes. The first is that the Court wants to cut down on the amount of Establishment Clause litigation, in an asymmetrical fashion that increases the prospect of government aid for religion. This “court reform” explanation denies the relevance of individual psychic harm from and suggests that the Clause has little to do with governmental religious spending. The second theme is that the Justices are preparing a major substantive departure from existing doctrine, but have not yet worked out its contours. Rather than clouding doctrine with messy transitional rulings, they seek “breathing space” until the best opportunity arises for a bold transformative departure. A cutoff of taxpayer standing, by reducing the frequency of Establishment Clause litigation, may afford the time and circumstances needed to fashion a new direction. The retreat from Flast has important ramifications. By removing an entire class of cases, it surrenders control over those issues to the government’s political branches, giving them largely unreviewable discretion about whether and how to treat religion in taxing and spending. This converts financial arrangements between church and state from a constitutional to a political issue. It also renders the commands of the Establishment Clause regarding spending on religion largely precatory.

Keywords: justiciability, standing, taxpayer standing, tax credits, spending, article III, establishment clause, establishment of religion, Flast v. Cohen, Valley Forge, Hein, Frothingham, separation of powers, psychic harm, intangible harm, charitable choice, passive virtues, neutrality, court reform, breath

JEL Classification: K19, K39, K40