Does and should the Establishment Clause only apply to Congress?

Following Frothingham v. Mellon (1923) and Flast v. Cohen (1968), a recent decision was made in the Supreme Court case, Hein v. Freedom From Religion Foundation (2007), setting precedent restricting taxpayer's legal standing in bringing suit in federal courts regarding Establishment Clause violations. As I’ll be discussing in this blog, the decisions in these cases have much broader and controversial implications.

Jesse Merriam gives a brief history of such cases dealing with taxpayers’ legal standing in Establishment Clause issues in The Pew Forum. Before getting in to the cases, you should understand that for any plaintiff to file suit in federal court, they must be victim of an injury caused by the defendant or they do not have legal standing. In the Frothingham case, decided in 1923, the Supreme Court “established the general rule that taxpayers do not have standing to challenge the constitutionality of government expenditures.” (Merriam) Their reasoning for this decision is that taxpayers aren’t actually injured by the way the government spends its money. Some time later, in Flast (1968), the Court decided that taxpayers had legal standing when they were questioning the government’s consistency with the Establishment Clause. The logic behind this decision was that taxpayers had standing because a constitutional provision protecting their rights was in question. The Court recognized that the Establishment Clause “specifically limits the government's power to spend money on religious activities.” (Merriam) Another case I should mention is Valley Forge Christian College v. Americans United for Separation of Church and State (1982). In this case, the government donated property that previously was a military hospital to Valley Forge Christian College. The Court decided that taxpayers in this case have no standing because it was the executive branch’s action and not legislation that authorized the donation and because the government was donating property, not spending tax dollars. This case, however, never held much precedent. Merriam says that the Court continued to follow the ruling from Flast, giving taxpayers standing when addressing concerns on constitutional provisions, such as the Establishment Clause.

The most recent case that’s been through the Supreme Court, setting precedent in regards to this issue, is Hein v. Freedom From Religion Foundation (2007). In this case, members of the Freedom From Religion Foundation brought suit in federal court on the grounds that executive officials in our government were violating the Establishment Clause. These executive officials, including President Bush, were holding conferences paid for by federal tax dollars to promote the elimination of “obstacles that religious social-service organizations faced in competing with secular organizations for federal funding.” (Merriam) The Supreme Court ruled against the Freedom From Religion Foundation members and narrowed the Flast The Court said that taxpayers do not have legal standing to bring suit against the executive branch for using their general federal funds for religious purposes, as long as there is no legislation authorizing or granting such action. In other words, the executive branch is free to do as they please with the federal tax money given to them- even promote religious activities- without running any risk of legal backlash from taxpayers. The majority supported their decision, through a couple of different concurring opinions, with reasons such as that since these executive funds are not explicitly for religious purposes, and that they are general funds with no specification on what they are to be spent on, the tax payers are not subject to injury. Another reason, argued through concurrence, is that if taxpayers are able to challenge the way the executive branch spends its money through the courts- in other words, if the courts are able to pass judgment on the constitutionality of executive expenditures- we will consequently be dealing with problems of the separation-of-powers among our branches of government. decision.

What’s interesting to me is that (although I haven’t read through the actual case and it may be addressed there) Merriam doesn’t acknowledge the majority’s opinion on how the First Amendment Establishment Clause shall be interpreted. It would make sense to me if the Justices within the majority made the argument that nowhere in the Establishment Clause does it explicitly prohibit the executive branch from respecting or promoting religious activities or institutions. The Establishment Clause is written as follows: “Congress shall make no law respecting an establishment of religion…” If you read this “literally”, you would agree with the majority that the executive branch can constitutionally hold such religiously-motivated conferences. However, the dissenters in this case argue that it makes no difference whether it’s Congress or the executive branch that authorizes the spending of federal tax dollars to promote a particular religious institution or religion in general. These Justices argue that taxpayers are subject to injury in either case and therefore have legal standing to challenge this in federal court. I would argue that the dissenters believe that Jefferson’s idea of the ‘separation of church and state’ means the ‘separation of church and state’ in its totality, meaning there should be no mixing of religious and government agendas, with no regard to any particular branch of government. The Court seems to have followed and used this interpretation of the ‘separation of church and state’ in the past.

It seems that the current Court has created a very narrow understanding and interpretation of the Establishment Clause. Do you agree with such interpretation? Or do you believe that this approach to applying the Establishment Clause to government action, i.e. protecting our religious liberties from government abuse, is a dangerous one? I believe the latter. I agree with Justice Souter’s presumption in his dissent that “if the Executive could accomplish through the exercise of discretion exactly what Congress cannot do through legislation, Establishment Clause protection would melt away.”

In wrapping this up, I’ll have you know that the precedent set by the majority in Hein v. Freedom From Religion Foundation (2007) has been applied in lower federal courts in cases as recent as August of this year. Merriam briefly touches on such cases in his report on The Pew Forum (updated Aug. 13, 2008).