ACS Issue Brief Explores High Court’s Evolving Aversion to Challenges over Government Support of Religion

by Jeremy Leaming

The Roberts Court, some commentators have noted, appears to side more often than not with corporate interests, and has altered precedent on pleading standards that make it much easier for judges to dismiss civil complaints – think Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. The Supreme Court also has weakened the ability of people to band together to challenge malfeasance of large corporations, see Wal-Mart v. Dukes and AT&T v. Concepcion.

A new ACS Issue Brief explores another avenue to the courthouse that the Roberts Court is narrowing, involving the ability of people to challenge unconstitutional government support of religion.

The First Amendment’s establishment clause requires that government act with neutrality toward religion, meaning a certain amount of separation between government and religion is a must. But, according to the ACS Issue Brief, the ability of people to bring constitutional challenges to government action supporting or advancing religion is becoming increasingly difficult.

In “The Slow, Tragic Demise of Standing In Establishment Clause Challenges,” Willamette University law school professor Steven K. Green writes, “By deciding not to decide certain classes of challenges, courts will effectively be throwing Establishment Clause questions … to the politically elected branches. Political expediency, rather than constitutional fealty, will become the rule of law, and Justice Robert Jackson’s immortal statement about withdrawing questions of constitutional rights from ‘the vicissitudes of political controversy’ and placing them ‘beyond the reach of majorities and officials’ will be stood on its head.”

Green notes that in its 1968 Flast v. Cohen opinion, the Supreme Court upheld the right of taxpayers to challenge “government expenditures where the litigant could demonstrate a connection between the legislative action authorizing the expenditure and the purported constitutional violation. As a result of Flast, any taxpayer could allege that a legislative appropriation on behalf of religion violated the Establishment Clause, regardless of her own connection to the entity or institution receiving the government funds.”

But Flast, although not explicitly overruled by the Supreme Court, has been diminished by an increasingly conservative Supreme Court, which at times, appears hostile to legal challenges over government funding or other support of religion, Green continues.

In 2007, for example, the Supreme Court in Hein v. Freedom of Religion Foundation held that a group of taxpayers did not have standing to bring a constitutional challenge to the White House’s so-called “Faith-Based Initiative,” which funneled federal dollars to religious organizations, primarily Christian ones.

The Roberts Court, Green notes, continued “dismantling taxpayer standing,” last term when it tossed aside a constitutional challenge to an Arizona law that gave tax benefits to private schools, including religious ones.

The high court’s newest justice, Elena Kagan, lodged a “blistering dissent,” saying that the majority’s continued weakening of taxpayer establishment clause standing would “diminish” the clause’s “force and meaning,” Green writes.

But Kagan’s voice may not be enough to sway a solidifying majority led by the chief justice against the ability of taxpayers to challenge government funding or other support of religion.

Green concludes, in part, by wondering whether it is too late to “reconfigure” the majority’s inclination to undo the ability of individuals to turn to courts to ensure that the First Amendment principle of a separation between government and religion is not flouted by the government officials eager to please certain constituents.