"Taxpayer test" for establishment clause cases
Proposed "Taxpayer Test"
(1) Alleged establishment clause violation does not involve significant tax money:
The taxpayer test does not apply. Examples are "under god" in the Pledge and government approval of the placement of a privately-funded religious symbol on public property.
(2) Alleged establishment clause violation involves Congressional allocation of tax money:
Taxpayers have standing to sue pursuant to Flast v. Cohen, which was not overturned by Hein v. Freedom From Religion Foundation so far as Congressional allocation of tax money is concerned.
(3) Alleged establishment clause violation involves federal executive branch allocation of tax money:
Pursuant to Hein v. Freedom From Religion Foundation, there is no taxpayer standing. A three-justice plurality held that Congressional allocation and federal executive branch allocation should be treated differently and two other judges concurred in the judgment, making a majority. However, there could be standing on other grounds. For example, presumably there would still be standing to sue for removal of a religious symbol from public property even if that symbol was funded by the federal executive branch, because since the presence of the symbol on public property is the issue, it should not matter how the symbol got there -- indeed, it would be the height of irony if standing to sue were denied on the basis that the symbol was paid for by the federal executive branch instead of a private donor! However, if the alleged establishment clause violation is federal executive branch funding of, say, a religious organization, there would probably not be an alternative basis for standing to sue.
(4) Alleged establishment clause violation involves spending of state or local tax funds:
I have no idea.
The Constitution is supposed to be the supreme law of the land. Allowing a possible constitutional violation in order to follow a "standing to sue" rule appears to be straining at a gnat and swallowing a camel. It might be argued that "standing to sue" here is itself a constitutional requirement that there must be "injury in fact," but that requirement is based on an arbitrary interpretation of the "cases and controversies" clause of Article III of the Constitution. Then there is also the question of why this "injury in fact" requirement -- even if valid -- should have priority over other constitutional requirements. Furthermore, there is no agreement on what constitutes "injury in fact" in a lawsuit charging that tax money is being spent for an unconstitutional purpose -- as Justice Scalia, joined by Justice Thomas, said in Hein,
The Court's taxpayer standing cases involving Establishment Clause challenges to government expenditures are notoriously inconsistent because they have inconsistently described the relevant "injury in fact" that Article III requires. Some cases have focused on the financial effect on the taxpayer's wallet, whereas Flast and the cases that follow its teaching have emphasized the mental displeasure the taxpayer suffers when his funds are extracted and spent in aid of religion. There are only two logical routes available with respect to taxpayer standing. If the mental displeasure created by Establishment Clause violations is concrete and particularized enough to constitute an Article III "injury in fact," then Flast should be applied to (at a minimum) all challenges to government expenditures allegedly violating constitutional provisions that specifically limit the taxing and spending power; if not, Flast should be overturned. (pages 4-5 of syllabus)
Also, why should "mental displeasure" be sufficient to grant standing to sue when there is no tax money expenditure but insufficient to grant standing to sue when there is a tax money expenditure? That's not consistent.
Also, the "injury in fact" requirement is not always enforced. Environmental laws have "citizen suit" provisions giving citizens the right to sue for enforcement of the laws without any allegation that there is any actual or potential injury to anyone or anything, let alone actual or potential injury to the plaintiff(s). Yet the federal courts have not struck down the "citizen suit" provisions as violations of the alleged constitutional requirement that there must be "injury in fact" to the plaintiff(s).
Labels: Establishment clause