Next week the Roberts Court will hear argument in Hein v. Freedom from Religion Foundation. In Hein, taxpayers claim that the President misused generally appropriated funds to sponsor conferences in which faith-based social service providers were given greater attention than competing entities. In a closely divided en banc ruling, the Seventh Circuit found standing even though the Court’s previous cases only allowed exceptional taxpayer standing where the challenge was to a legislative exercise of the spending power, not a complaint about the executive use of generally appropriated funds. While focused on jurisdiction, the case has landmark potential. This is especially true if the Court is signaling a long-term willingness to re-examine whether the very rules of constitutional litigation have been used to manifest hostility toward religious faith.

The First Amendment was intended to protect individual religious freedom from manifestations of religious favoritism be they in the form of a national church or legally coerced belief or practice. Mistakenly, in the late 1940s, the Supreme Court gave that Amendment a different meaning that prompts not accommodation, but exclusion of religious belief. Specifically, the court held that government must remain strictly neutral between religion and no religion. This is a rather odd proposition for a nation whose first president highlighted the extent to which "religion [was] an indispensable support . . .to political prosperity." I n its foundational document, America acknowledged a Creator and rights derived from being "created equal." In the words of Justice William O. Douglas our nation’s "institutions presuppose the existence of a Supreme Being."

Our institutions do, but no individual American is compelled to agree. That is indeed the genius of America – a corporate acknowledgment of the transcendent coupled with complete individual freedom on the same question. And the ingenuity of holding the possibility of two inconsistent thoughts is largely harmonized by keeping the Establishment Clause focused on its original concern with government coercion. When the Court misconstrues the Clause in the 1940s into maintaining neutrality between religion and no religion, a governing principle consistent with our nation’s foundation is lost. The analytical slide that follows becomes, for some justices, a misbegotten public obligation to affirmatively establish a secular state.

It is perhaps sad enough that some members of the Court have understood the Constitution as imposing an obligation to root out all public religious reference, but this mistake became compounded by a parallel ruling in the 1960s that threw open the federal courthouse door to encourage just about anybody to complain. As mentioned, the general rule is no taxpayer standing. Taxpayers make their case in the legislature, not court. The standing requirement is an important one because otherwise courts would merely become a second legislature, where those unhappy with the policy choices made by elected representatives could have another, unauthorized crack at it. Courts are intended to settle discrete disagreements or controversies, to interpret the law, and not to remake it. To ensure that courts stay within this proper role, a litigant in the usual case must demonstrate a specific, concrete injury traceable to the party being sued and capable of being remedied by the court. Not surprisingly, merely being distressed or disapproving of some government policy is not sufficient – at least , that is, unless one is objecting to religion

In Flast v. Cohen 392 U.S. 83 (1968), the Supreme Court disregarded these settled principles and sauntered off in its own direction. Curiously, Flast held that taxpayers had standing to challenge the use of funds under the Elementary and Secondary Education Act of 1965 that provided educational assistance in mathematics, reading and other subjects to public and religious school alike. While the lower court had found no standing based upon the general rule, Chief Justice Earl Warren propounded the view that standing could be found to challenge legislative expenditures insofar as they were applied to religious schools. Giving only lip service to the importance of standing to ensure both that the litigants before the Court had a sufficient stake in litigation to undertake proper argumentation and to keep the Court from disregarding the separation of powers, the Chief Justice invented a two-part standard that satisfied neither of those considerations. First, taxpayers had to establish a logical link between that status and the type of legislative enactment attacked, "as it will not be sufficient," wrote Warren, " to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute." Second, taxpayers must also establish a nexus between that status and the precise nature of the constitutional infringement alleged. In particular, they must show that the statute exceeds specific constitutional limitations on the exercise of the taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, 8.

As Justice Harlan in dissent thoughtfully pointed out, neither of the Flast factors did anything to differentiate an Establishment Clause taxpayer case from any other taxpayer case. The requirements were at best makeweights, both could be easily fulfilled and both were off point in terms of keeping the court focused on the resolution of specific disputes. It was not as if, Harlan pointed out, that the complaining taxpayer under the two factor test would get a refund if he prevailed. "The taxpayer cannot ask the return of any portion of his previous tax payments, cannot prevent the collection of any existing tax debt, and cannot demand an adjudication of the propriety of any particular level of taxation," illustrated Harlan. "His tax payments are received for the general purposes of the United States, and are, upon proper receipt, lost in the general revenues." Moreover, there was nothing more specific or limiting on the spending power about the Establishment Clause than other constitutional provisions, such as Due Process or Equal Protection. Said Harlan, "I can attach no constitutional significance to the various degrees of specificity with which these limitations appear in the terms or history of the Constitution."

Will the Roberts Court undo the Flast mistake? Possibly. The case could be resolved narrowly simply by the modern precedent that differentiates executive from legislative expenditure. But this would leave the anomalous Establishment Clause taxpayer standing untouched. That would be unfortunate. The exceptional Establishment Clause standing doctrine has drawn the Court into disputes over the evenhanded inclusion of religious schools in federal grant programs and all manner of challenges to religious holiday displays and the after hours use of empty school classrooms by student religious clubs. To the extent that there is disagreement about these matters they should be resolved in the political process. Religious divisiveness is heightened, not lessened, by empowering one side to run into Court brandishing an exclusionary interpretation of the Establishment Clause. As Oliver Wendell Holmes remarked, the Courts are not the only defenders of the Constitution, as the other branches of government "are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts."

Nor does this mean that no case could be heard by the Court. Obviously, where a taxpayer or any other citizen is coerced or disadvantaged by a prescribed imposition under law of a religious belief or practice, standing would exist. Similarly, as Justice Harlan pointed out, it is a different case if a challenge is brought to a tax specifically designed for the support of religion. This was the Virginia tax opposed by Madison in his famous Memorial and Remonstrance in favor of religious freedom. Finally, although this is its own knotty issue, Congress retains some degree of authority to authorize public actions where there is a bona fide factual injury.

The Roberts Court has shown a special interest in standing and maintaining the jurisdictional integrity of the judicial function. Daimler Chrysler v. Cuno, 126 S.Ct. 1854 (2006). It should not understate that special interest here. It is illogical to retain a standing exception that distorts the role of the Court, props up an historically inaccurate interpretation of the Establishment Clause, and was largely a filler insufficiently connected to the structural importance of the separation of powers. And lest it be forgotten it also undermines one of President Bush’s best ideas – the allowance of religious a charities and other faith-based organizations to compete on equal terms in the delivery of social services. Often, a religiously-affiliated shelter or anti-addiction program is a more effective means to address spousal abuse or drug or alcohol addiction, and there is no constitutional reason to keep those in need of these services from coming freely to them.

The door opened to spurious, exceptional taxpayer standing in Flast ought to be closed.