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Wednesday, June 27, 2007

Hein, Flast, and the Problem of False Symmetry

Of all the mistakes that law students make, one of the most understandable is a belief that if two cases share important similarities, logic and fairness require that they be treated alike.  The problem with that well-intentioned intuition is that no two cases are exactly alike.  Any assessment of whether the two cases should come out the same way requires an examination of what is different about the two cases and an analysis of whether, in light of the purposes and history of the relevant rule, those differences require a different result. 

I've always thought that, in constitutional law, affirmative action is the best example of this flawed reasoning.  Statements that fairness or logic require the application of the same level of scrutiny to actions which classify on the basis of race whether minority groups are burdened or benefited may or may not prove right, but--without more--they are logically incomplete.  To prove that point, you need a normative, historical, or theoretical account of the Equal Protection Clause that tells you whether the differences between the situations are constitutionally significant.  (It's no wonder that students botch this one, as the courts themselves have only sporadically engaged in such analysis.  We'll see soon--presumably tomorrow--whether the Roberts Court intends to offer a satisfactory analysis in its affirmative action jurisprudence.)

Well, in the last few days, courtesy of the Hein decision, I've found a second favorite example of the problem of false symmetry:  the issue of whether the same rule should apply to taxpayer suits challenging government spending under the Establishment Clause as under most other constitutional provisions. 

Hein strikes me as problematic on many, many levels.  To begin with, as both the dissenters and the concurring Justices point out, it is extremely hard to draw a distinction between suits challenging specific Congressional appropriations as violations of the Establishment Clause and suits challenging executive decisions to spend already appropriated Congressional funds as violations of the Establishment Clause.  Further, like Jack Balkin, Dahlia Lithwick and a host of others, I am sympathetic to the argument that the psychological and sociological harms imposed when the government affirmatively disfavors my religion are--given the purposes of the Establishment Clause--sufficiently concrete and substantial to meet standing requirements.  More controversially, I am broadly skeptical as to the need for a sharp rule against taxpayer standing; given the nature of many of our constitutional rules, taxpayers often find themselves in a plausibly adversarial position vis-a-vis their government and the benefits of allowing adjudication in such disputes at times substantially outweigh the costs.

All that having been said, the thing that I find strange about the debate is the belief--seemingly shared by all sides of the political spectrum--that there is something anomalous or anachronistic about Flast.  Whether commenting in passing ( e.g., David Stras) or engaging the issue more seriously (e.g., Rick Garnett), most people put the burden of proof on defenders of Flast, assuming that a taxpayer is in the same position in an Establishment Clause suit as in a suit under most other constitutional provisions.  What's good for the goose is good for the gander, etc.

But there is a very big difference between the Establishment Clause and other provisions of the Constitution:  the Establishment Clause is the only Clause in the Constitution that seems to bestow an individual right on individuals in their capacity as taxpayers.   After all, the ur-injury against which all modern Establishment Clause claims are reflected is the Establishment of a national church, i.e., the use of federal tax dollars drawn from all segments of the population to support a particular religion.  Given the central role the Establishment Clause plays in protecting freedom of conscience and its placement in the first Amendment's list of liberties, the right not to be conscripted into paying such taxes to support an alien religion is as personal a right as the freedom of speech or the free exercise of religion.   The fact that a government action impermissibly funding a particular religion violates the individual rights of many, many individuals should not defeat standing, as it would not in a case where the government outlawed all speech critical of the current administration or prohibited the exercise of Christianity.

As anyone who has studied the progression of the cases knows, the coexistence of Flast and a general default rule critical of taxpayer standing is something of an historical accident.  That having been said, it is largely a happy accident, fully consistent with an essential difference between the Establishment Clause and other provisions of the Constitution.  Another reminder, that sometimes the superficially similar are ultimately meaningfully different.

Posted by amsiegel on June 27, 2007 at 03:18 PM in Constitutional thoughts, Current Affairs | Permalink


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Tracked on Jun 27, 2007 8:20:07 PM


Andy's suggested pleading requirement raises an interesting issue, depending on what, exactly, the Establishment Clause protects against. If it is about the offense to non-believers from official recognition of one religion, that pleading requirement makes sense. But the Clause more broadly could be read to keep government, through official recognition, from overtaking and controlling any religion at the expense of what the religion and its adherents might want (perhaps because government involvement or conditions waters the faith down). So, to use David's hypo: A Catholic might have as strong an objection to official recognition/funding as a Jew, albeit for different reasons. On this broading understanding of the Clause, that Catholic ought to have the same standing.

Still puzzling over David's hypo. My inclination is that the Court would recognize standing, perhaps on some theory of limited "citizen standing." But I need more time . . .

Posted by: Howard Wasserman | Jun 29, 2007 3:36:22 PM

I also appreciate the serious engagement on the issue and have enjoyed our exchange greatly. And I also commend you all for the quality and thoughtfulness of your posts. Let me ask a slightly different hypothetical. As the following hypothetical demonstrates, it seems to me that the Establishment Clause is not just about "the use of federal tax dollars drawn from all segments of the population to support a particular religion" as Andy suggested in his original post.

Suppose that Congress passes legislation (and the President signs it) that would establish Catholicism as the national religion. Not a single dollar is spent by the government, except to pay the salaries of the legislators that debated the bill and the President who failed to veto it. No churches are built, no chaplains or priests are hired by the government, and the President does not hold any conferences or even make speeches about the legislation. Would there be standing, or would this be a generalized grievance that everyone in America shares, eliminating standing for nearly everyone? I suppose the difficult answer to the foregoing hypothetical is what triggered my reaction to Howard's thoughtful post last night, making me critical of the taxpayer standing in general.

Posted by: David Stras | Jun 28, 2007 1:01:30 PM

Thanks for the serious engagement.

First off, I don't find Allen v. Wright very helpful because I think that case was clearly wrongly decided for at least two reasons. First of all, along with many other commentators I think the Court should have accepted the argument about stigmatic injury. More importantly, however, I think the idea that there was no causation between the failure to enforce the IRS restrictions and the maintenace of racially exclusive schools is belied by basic logic and economics.

But, having said that, I don't think that Allen v. Wright (or David's example about the cameras) is on point. If my understanding of the Establishment Clause is correct--and Marty correctly points out that this is where the rubber hits the road--then taxpayers in Establishment Clause cases are not third parties complaining that they are paying to subsidize government actions that violate the rights of others, but are in fact people whose own First Amendment rights are being violated. The fact that it is their rights as taxpayers doesn't make this a "taxpayer standing" case as that term has come to be understood.

(As a trivial aside, I think a case can be made that plaintiffs in such litigation should have to plead that they are dissenters, i.e., that the tax money is going to religious organizations that they donn't belong to. But such a pleading requirement would be so trivial and yet so invasive that I have no problem with the courts leaving it out.)

Posted by: Andrew Siegel | Jun 28, 2007 9:55:34 AM

"Would subsidies to a racially discriminatory school be unconstitutional?"

Certainly if Norwood v. Harrison remains good law.

Posted by: Marty Lederman | Jun 28, 2007 9:47:27 AM

But the injury is not the *loss* of money (which admittedly is beyond de minimis). It is the *fact* of expenditure by the government of what the public as a whole (including me as a lone taxpayer) has provided through its payment of tax dollars for a uniquely collective harm. You may be right that the taxpayer link makes no sense. Perhaps it more accurately is called "citizen standing," because is is standing for one citizen to assert a claim under the one Bill-of-Rights provision that explicitly protects a collective interest. The taxpayer link becomes shorthand just because expenditure of money is at issue--plus it sounds narrower.

And, at some level, recognizing Establishment-Clause standing is more honest than the sort of facts needed to establish actual standing in, for example, display cases: "The offending dissplay has caused me to change which entrance I use when I walk into the courthouse, leaving me outside in the cold longer." True it remains a departure from ordinary standing rules--but the Establishment Clause is a departure from other Bill of Rights llberties.

I still am not sure that your racially discriminatory schools analogy works because there is no similar disestablisnmentarian principle under either the Fifth Amendment (Equal Protective principle) or the Free-Speech Clause--there is no right not to be have to pay for (or be confronted by) offensive or disagreeable government messages. And would subsidies to a racially discriminatory school be unconstitutional--there probably are some E/P case out there that I am just missing?

Posted by: Howard Wasserman | Jun 28, 2007 7:58:26 AM

The simple answer is the traditional understanding that in the funding-religious-schools case, there is a distinct constitutional harm, not only in the state discriminating in favor of religion; and not only in the state injecting itself into religious debates that are beyond its ken; and not only in using religion as an engine of social good (see the Memorial and Remonstrance); and not only in the state expressing a view on religion that makes some feel like outsiders; but *also* in requiring me to *support* others' religion by contributing tax dollars to their religious exercise. This is captured by the ubiquitous "three pence" statement. The state cannot ask me to sacrifice in the service of others' religious exercise -- whereas it *can* ask me to sacrifice in the service of virtually everything else, no matter how much I object to it (e.g., a futile or unjust war) and how unconstitutional it might otherwise be (e.g., racially discriminatory schools).

Now, one can of course dispute that the no-compelled-support-of-religion principle is one of the aims of the EC. But as long as that is our shared constitutional understanding, it means that the state's support of religion with my tax dollars actually does do a constitutional harm to me as a taxpayer in a way that subsidizing the racist school does not.

Posted by: Marty Lederman | Jun 28, 2007 7:49:06 AM


Your analysis makes sense, but then why hinge standing on taxpayer status? It is not that people are paying one tenth of one cent toward the establishment of religion, or whatever their pro rata share is, but that people are directly harmed by the message, which seems to me to be a different point altogether. It might be the case that standing generally has been tightened too much by the Supreme Court, but that seems to be a different issue.

To take another analogy from my SCOTUSblog post, what is the difference between Congress giving money directly to an openly racially discriminatory school and an openly religious school? Both convey messages, both actions are unconstitutional, and both are messages with which most taxpayers may disagree. Yet a taxpayer only has standing to sue with respect to the latter and not the former.

Posted by: David Stras | Jun 27, 2007 10:39:27 PM

What makes the Establishment Clause different from other constitutional liberties is that it protects individuals from being confronted by particular government-funded messages--those that establish a religion/religious idea which they find offensive. No one has been *denied* the liberty to do anything (speak, exercise their own religion, be treated equally); the essential harm to which the Establishment Clause is directed is being *confronted* by the establishment of the offending religious ideas. And that offense is felt by EVERYONE who does not believe and is confronted by the message. But we have not yet recognized a similar anti-establishment principle as to any other constitutional right or government liberty.

So David's example is not quite the right analogy, because anyone who wanted to speak could establish standing from the speech monitors he describes (subject to clearing the immediacy hoops of Lujan). A more analogous example would be government pouring out its own expression that "establishes" political ideas (homosexuality is evil) that taxpayers find offensive. But there is no anti-establishment principle as to speech (although some have argued for it). So the problem there is not the lack of standing, but the non-existence of the claim of right to be free from establishment of political ideas.

Posted by: Howard Wasserman | Jun 27, 2007 9:32:52 PM


I understand the argument, but I must say that I am still not convinced. I do believe that the Establishment Clause has its own unique history, as many scholars have shown, but I do not think that that history justifies a special exception to the Court's standing doctrine. In fact, your argument that the right under the Establishment Clause is deeply personal is descriptive of other rights in the Constitution, as you seem to concede in your post.

Taking your hypothetical one step further: Suppose Congress passed a law expressly funding the use of speech monitors to suppress political speech in Washington D.C. Because it is a personal right and affects many, many individuals, why shouldn't a taxpayer be able to sue in such a case under your theory? After all, their money is being used directly to suppress the deeply personal and fundament 1A right of freedom of speech, and political speech at that. Meanwhile, Congressional spending on a Catholic church building in Washington D.C., even without "establishing" a national religion, would presumably allow anyone in the country to sue, even those that would not be directly affected by the spending or the new building. There may be a good argument against this hypothetical, but I really don't see much of a difference. The "psychic harm" seems to be the same, and the "monetary harm" to taxpayers with both is negligible.

But I agree with you and most commentators that the one position that is doctrinally untenable is the one that we now have: Congressional spending in violation of the Establishment Clause confers standing if done pursuant to the Taxing and Spending Clause of Art. I s 8, but executive spending, even pursuant to a general congressional appropriation, does not. Either the concurring opinion is correct or the dissenters are correct, but I can't find much to favor the position taken by the plurality.

Posted by: David Stras | Jun 27, 2007 7:19:54 PM

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