Establishment clause case illustrates arbitrariness of our courts

There is a lot of talk now about a Supreme Court establishment clause case titled Hein v. Freedom From Religion Foundation. This case is a good illustration of the arbitrariness, capriciousness, nitpickingness, and hairsplittingness of our courts.

An article by Ira C. Lupu and Robert W. Tuttle says,

The requirement of "standing to sue" in the federal courts arises from Article III of the U.S. Constitution, which limits those courts to "cases" and "controversies." In order for a lawsuit to present a case or controversy, the plaintiff must demonstrate that he or she has been injured by the defendant in ways that the court can remedy if the defendant is found to have behaved unlawfully.

However, this meaning of "cases" and "controversies" is not clear here -- for example, anything can be a "controversy," even a hypothetical or moot case. Also, the requirement of "injury-in-fact" is not strictly enforced -- federal environmental protection laws have "citizen suit" provisions that give any citizen standing to sue without any allegation that anyone or anything -- let alone the plaintiff -- has been or could be injured by the non-enforcement of an environmental law; all the plaintiff has to allege is that an environmental protection agency has failed to perform an action required by law.

The article by Lupu and Tuttle says,

Many years ago, the Supreme Court ruled that federal taxpayers do not have standing to challenge the constitutionality of federal expenditure programs, because the connection between the allegedly wrongful expenditure and their status as taxpayers is too remote. Even if they win the suit, the Court then reasoned, taxpayers will not get a refund of the amount of the taxes that have been wrongfully spent. In 1968, however, the Court carved out an exception to the doctrine excluding taxpayers from standing in Flast v. Cohen, which authorized taxpayer standing to challenge congressional action alleged to be in violation of the specific limitations in the First Amendment, including the Establishment Clause. The reasoning in Flast turned on the special history of the Establishment Clause, which protects taxpayers from being compelled to support any religious faith.

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Why make this exception for the establishment clause? Taxpayer suits against tax money expenditures that allegedly violate the establishment clause mainly involve just a "right" to not be offended, just like taxpayer suits that challenge the constitutionality of any other kind of tax money expenditure.

The defendants/appellants in Hein are asking the court to rule that taxpayer status does not confer standing to sue in establishment clause cases. But what if the alleged establishment clause violation does not involve a tax money expenditure -- what would then be the argument against standing to sue? Why should standing to sue in establishment clause cases depend on whether or not a tax money expenditure is involved? In a larger sense, should standing to challenge the constitutionality of any government action depend on whether or not a tax money expenditure is involved?

Also, in his dissenting opinion in Flast, Justice Harlan said,

I am quite unable to understand how, if a taxpayer believes that a given public expenditure is unconstitutional, and if he seeks to vindicate that belief in a federal court, his interest in the suit can be said necessarily to vary according to the constitutional provision under which he states his claim.

. . . .Apparently the Court, having successfully circumnavigated the issue, has merely returned to the proposition from which it began. A litigant, it seems, will have standing if he is "deemed" to have the requisite interest, and "if you . . . have standing, then you can be confident you are" suitably interested. (citation omitted)

The article of Lupu & Tuttle also has long discussions over the case's nitpicking & hairsplitting disagreements over (1) Congressional expenditures v. executive branch expenditures and (2) internal v. external governmental expenditures.

A related post on this blog is here. Also, this case is discussed here and here on Ed Brayton's Dispatches from the Culture Wars blog.

The courts have often painted themselves into corners by writing conflicting precedents. And the more arbitrary, capricious, nitpicking, and hairsplitting a decision is, the more likely it is that that decision will create conflicts.