In Hein v. Freedom from Religion Foundation, decided in June of 2006, the Supreme Court ruled that federal taxpayers lacked standing to bring an Establishment Clause challenge to a series of conferences designed to promote the Faith-Based and Community Initiative. The explicit grounds for Justice Alito's opinion, speaking for a plurality, is a distinction between legislative decisions to tax and spend for religion - still challengeable by taxpayers - and discretionary executive branch action, which taxpayers may not challenge.
This paper takes a close look at Hein, examines its conceptual underpinnings, and analyzes the questions likely to follow in its wake. The issues that most deeply divide the Justices in Hein are whether the Establishment Clause is structurally different from other provisions of the Bill of Rights, and, if so, what implications for Article III arise from that structural difference. Only in light of these basic and contested issues can the future impact of Hein on Establishment Clause adjudication be explored. The effects of Hein will touch 1) the precise extent to which federal taxpayers will continue to be able to maintain suits to enforce the Establishment Clause; 2) similar suits in the federal courts by state and local taxpayers; and 3) the standing of plaintiffs in other Establishment Clause settings, most notably cases alleging that "observers" of government religious expression are injured by what they see or hear. The paper explores all of these questions in detail, and concludes that Hein - far more than anyone has publicly noticed - has the potential to usher in a new and highly restrictive era of judicial enforcement of the Establishment Clause.
GW Paper Series
GWU Legal Studies Research Paper No. 361; GWU Law School Public Law Research Paper No. 361
Ira C. Lupu & Robert W. Tuttle, Ball on a Needle: Hein V. Freedom from Religion Foundation and the Future of Establishment Clause Adjudication, 2008 B.Y.U. L. Rev. 115 (2002).