Justices cite ‘standing’ in church-state disputes

June 29, 2011

After the U.S. Supreme Court ended its 2010–2011 term in late June,
legal scholars specializing in church-state issues are saying a Court
decision issued in the spring is likely to resonate in First Amendment
debates for years to come.

On April 4, the justices rejected a
challenge to an Arizona school tuition credit program that largely
benefits religious schools, saying taxpayers did not have legal grounds
to challenge a tax credit as government spending.

At the heart of
the decision was an arcane yet essential legal term—"standing," or a
plaintiff's right to sue. Critics say the Court increasingly relies on
standing to dismiss church-state challenges without addressing the
merits of the complaints.

Whatever the Court's reasoning, the
Arizona ruling already is influencing other cases that touch on the
First Amendment's prohibition on a government "establishment" of

  • A Wiccan chaplain lost a
    religious discrimination case in a federal appeals court on June 1,
    which cited the Arizona decision in its ruling.
  • Two weeks
    later, the Freedom From Religion Foundation voluntarily dropped its case
    challenging tax exemptions for clergy housing in light of the Arizona
  • That same atheist group is now considering whether to
    seek an appeal in a case it lost trying to declare the National Day of
    Prayer proclamation by President Obama as unconstitutional.

Laurie Gaylor, copresident of the Freedom From Religion Foundation,
said by focusing on the standing issue the Court's conservative majority
has re­duced its ability to hear cases on their merits.

"They are
slamming the door shut, and they do not want any examination of the
constitutionality of governmental support for religion," she said. "It's
just rendering our Establishment Clause meaningless because we cannot
enforce it."

Groups like Gaylor's had already taken a hit when the
Court ruled in 2007 that taxpayers associated with the atheist group
did not have standing to challenge the White House initiative that
channels federal funds to religious groups providing social services.

with the Arizona ruling, conditions have grown worse, Gaylor said.
"It's such a chilling effect," she said. "Taxpayers, we're just sitting
out there in the cold."

Writing for the 5–4 majority in the
Arizona case, Justice Anthony Kennedy defended the reliance on standing:
"In an era of frequent litigation, . . . courts must be more careful to
insist on the formal rules of standing, not less so."

Conservative Christian legal groups like the American Center for Law and Justice hope the April decision in Ari­zona Christian School Tuition Organi­zation v. Winn will help them in future cases.

the Arizona decision, ACLJ lawyers hope to convince the high court to
reject the idea of "offended observer" standing with a case about an
Ohio county court judge who has posted the Ten Commandments on his
courtroom wall. "The people who sued him—they don't like to look at the
poster," said Jay Sekulow, the ACLJ's senior counsel, of the American
Civil Liberties Union. "So what?"

Melissa Rogers, a church-state
expert at Wake Forest University School of Divinity, said standing is
not just a dry legal concept. "It can make the difference between
whether the Establish­ment Clause is a vibrant source of values that
protects us and protects the religious liberty that we enjoy," she said,
"or whether it's a paper promise that theoretically bars certain things
but not in practice."

The church-state arguments over taxpayer standing often refer to a 1968 case, Flast v. Cohen,
in which the Supreme Court ruled that taxpayers could sue when Congress
provided financial aid to public and private schools, including
parochial schools. Some justices think that the Flast decision
should be overturned or narrowly interpreted; others, like first-term
Justice Elena Kagan, think it paves the way for taxpayer cases to be

Kagan, in a strong dissent in the Arizona case, said
the majority's decision "devastates taxpayer standing" in cases
involving the Establishment Clause. "However blatantly the government
may violate the Establishment Clause, taxpayers cannot gain access to
the federal courts," she wrote.

With losses in federal court, church-state separationists say they're hoping for better success in state courts.

Lynn, executive director of Americans United for Separation of Church
and State, estimates that three dozen states have constitutions that
prohibit "even more clearly the expenditure of government funds for
religious purposes." So he hopes plaintiffs may have a greater ability
to sue at the state level. "So far [at that level] we haven't seen the
same trend . . . where people are just being kicked out right and left
because of alleged lack of standing," he said.

David Cortman,
senior counsel of the Alliance Defense Fund, which argued for both the
National Day of Prayer and for the Arizona tuition credit program, is
not surprised about strategies to move to the state courts. "If they
can't challenge them in federal courts, they'll certainly challenge them
in states," he said, "but we'll also be there to defend those
programs."  —RNS