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 It's Time for the Supreme Court to Say "No"

There are people who, just because they pay taxes, file suit challenging federal government actions that supposedly give unconstitutional support to religion.  In no other area of the law does the Court allow this kind of legal standing to bring challenges.  For years, atheists and others who are antagonistic to religion and who want to remove every religious reference from American public life, have had a special privilege in federal court.  Unlike everyone else, church-state separation advocates have not had to show that a law or government activity actually injured them in any way before they could bring a challenge in federal court.  All they had to do was show that they were taxpayers.  In essence, separationists have had a free reign to bring Establishment Clause lawsuits throughout the country just because they were “taxpayers.”  Simply put, that’s unfair.  No other citizen can just sue because they pay taxes.  It should be the same in the religion cases, and the Supreme Court has an opportunity to say “no” to these plaintiffs once and for all.

In Hein v. Freedom From Religion Foundation, separationists taxpayers have challenged a federal faith-based initiative program.  The group that has brought this lawsuit, Freedom From Religion Foundation, is an aggressive secularist organization.  Even a quick review of their website shows their hostility, particularly to Christianity.  The district court in Wisconsin dismissed the case, ruling that the taxpayers had no standing—capacity to sue—because there was no federal grant even at issue.  The district court got it right.  Unfortunately, the federal court of appeals reversed by a 2-1 vote and reinstated the lawsuit.  The court went on to rule that the separationists had standing to challenge the federal program.  The Department of Justice petitioned the Supreme Court of the United States to review the case, and in December, the Court agreed to hear it.

In our brief filed with the Supreme Court, we asserted that no federal taxpayer suits are allowed in any other context aside from Establishment Clause suits challenging federal spending. That exception, the ACLJ brief notes, rests on a 1968 decision called Flast v. Cohen.  Subsequent decisions from the Court regarding Flast v. Cohen have rejected every argument the Court had previously made in support of its earlier decision.  “In sum,” the ACLJ brief concludes, “this Court has, in the years since Flast, knocked out every single rationale underpinning that decision.”  We even made an analogy to the famous Roadrunner cartoon.  “Like Wile E. Coyote in the old Roadrunner cartoons, Flast stands in midair, waiting only for that fact to be noticed before collapsing of its own weight.”

The Flast precedent has caused a lot of mischief.  It has empowered every disgruntled atheist to make a federal case out of any hint of religion in a government action.  We are glad the Supreme Court is now taking another look at whether taxpayer suits under the Establishment Clause make sense under our constitutional framework.  We are convinced that these taxpayer suits should no longer be permitted.  Enough is enough, and it’s time for the Supreme Court to say so.