Closed Front Doors, Open Back Doors

Roger Williams’ concept of “separation of church and state” first became a part of Establishment Clause jurisprudence in Reynolds v. U.S., 98 U.S. 145 (1878), and became incorporated to and applicable to the several states by way of the Fourteenth Amendment in Everson v. Board of Education, 330 U.S. 1 (1947). What this means was recently and clearly articulated in Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994), which noted that the government may not favor religion to non-religion, even when the particular religion in question is not specified or articulated in the governmental activity.

Now, Article III of the Constitution confines the federal courts to adjudication of actual “cases” and “controversies.” To ensure the presence of a “case” or “controversy,” a plaintiff must at least allege (1) that she has suffered an injury that is (2) fairly chargeable to the defendant’s allegedly unlawful conduct and which (3) her requested relief is likely to redress. Allen v. Wright, 468 U.S. 737, 751 (1984).

Who, then, gets to come in to Federal court and request redress for the government’s violation of its Constitutional mandate to be religiously neutral? Increasingly, that answer is “no one,” by the time the Supreme Court gets done with that question.

After all, taxpayers suffering increased tax rates do not meet this test. In Frothingham v. Mellon, 262 U.S. 447 (1923), the Supreme Court ruled that a taxpayer did not have standing to sue the federal government to prevent expenditures if her only injury is an anticipated increase in taxes. Basically, the Frothingham Court said that the Courts are not the places to decide whether a particular law is a good or a bad idea; the taxpayer’s remedy is to elect members of Congress who will repeal ill-advised laws. Everyone has to pay their taxes.

Then, in Flast v. Cohen, 392 U.S. 83 (1968), the Supreme Court carved out an exception to Frothingham, saying that a taxpayer could sue the Federal government if the taxpayer had a credible case that the government was spending money raised through taxes in a manner that violated the Establishment Clause. Under Flast, a taxpayer can challenge laws that show a direct link between a violation of the Constitution other than the taxation power itself, and an exercise of the Congressional power to impose taxes aimed at achieving an unconstitutional goal.

In practice, this left open only challenges based on the religion clauses of the First Amendment as providing a claim of taxpayer standing.

But the original area, the ability of the Courts to entertain challenges to alleged violations of the Establishment Clause has become substantially circumscribed. Three cases now limit this such that it would be very easy for someone in either a state legislature or Congress to fashion a way to effectively subsidize a favored religious institution free from pesky judicial interference. Those avenues of subsidy are: sweetheart sales deals, diversion of the subsidy through the executive branch, and tax credits as opposed to direct subsidies.

Sweetheart deals were placed beyond the ability of the Federal courts to review in Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982), the Supreme Court in a 5-4 decision significantly limited the Flast exception. AU challenged a decision of the Secretary of Health, Education, and Welfare to sell real estate owned by the federal government to a religious college.

The Valley Forge Court offered sweeping statement to the effect that even if the sale violated the Establishment Clause, the taxpayers in question had not described any injury to themselves resulting from that violation. The majority of the Court believed that there may well have been people out there who could have articulated a specific harm to themselves, although they did not describe who that might have been. But the decision also rested on the idea that this was not a governmental action that spent money raised through taxes; instead, it was a governmental action that resulted in non-tax income coming in to the government. We see the same thing in Salazar v. Buono, 599 U.S. ___ (2010) in which a sweetheart land swap was set up to allow the Veterans of Foreign Wars to keep a cross on a tiny island of land in the middle of a Federal nature preserve. (Buono, at least, had standing to challenge the display, not as a taxpayer but rather as a public employee whose duties required him to frequently came in contact with the cross in the middle of public land.)

The rather more transparent, and less intellectually defensible, avenue of subsidy comes from routing the subsidy through a branch of the executive. After all, the First Amendment does say, “Congress shall make no law respecting an Establishment of religion.” But it doesn’t say anything about the President. So, Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007) picks up the ball where it had rested for so long after Valley Forge, and further limited the ability of anyone to challenge governmental subsidy of religious operations. In Hein, FFRF attempted to invoke taxpayer standing to challenge money spent by the Bush administration’s White House Office Of Faith-Based And Community Initiatives to subsidize charitable activities or religious institutions. By 5-4, the Court said that the plaintiffs lacked standing to make this challenge in the first place.

Three Justices – Chief Justice Roberts, Justice Kennedy, and Justice Alito, based their decisions on the idea that Constitutional separation of powers required the Court to defer to Congress to oversee executive spending of this nature. Kennedy in particular went out of his way to underline the idea that Congress and the President both have independent duties to make sure that what they do is Constitutional, and that he was quite, quite sure that left to their own devices, the political branches would police themselves just fine and therefore there was no need of allowing taxpayers to challenge these subsidies. Two Justices – Scalia and Thomas – would have overruled Flast entirely. The four remaining Justices could find no principled distinction between Congress spending the money directly on the subsidy and the President using money appropriated by Congress to spend on the subsidy.

That sets the stage for yesterday’s case from Arizona. Arizona Christian School Tuition Organization v. Winn was decided just yesterday, again by a 5-4 vote. As in Hein, Justice Anthony Kennedy again provided the pivotal swing vote, siding with the Chief Justice, and Justices Scalia, Thomas, and Alito.

Winn dealt with an indirect subsidy by the state of Arizona to private religious elementary and high schools. Parents of children who attend private schools receive a tax credit on their state income taxes for money donated to scholarship programs for private school tuition. Most of that money winds up in practice going to pay the tuition of religious schools and reading between the lines, specifically to pay the tuition of the children of the donors. But because the subsidy is only indirect, Justice Kennedy writes, it does not satisfy Flast’s requirement of a nexus of the state’s power to impose taxes and the unconstitutional goal of subsidizing religious activities. Justices Scalia and Thomas again wrote that they would simply overrule Flast, but they fully agreed this time with Kennedy that there was no nexus and therefore even under Flast there was no standing.

Winn is interesting because it is Justice Elena Kagan’s first dissent, and while it is of similar quality to Justice Souter’s dissent in Hein. Justice Kagan complained that the ruling, coming as it does after Hein, eviscerates Flast and now there is as a functional matter no such thing as taxpayer standing anymore and therefore no effective way to challenge alleged Establishment Clause violations.

Which is not quite true. Flast is still good law, on its facts. A legislator so dim and lacking in cleverness as to fail to incorporate the necessary code words and set up hoops for the favored religious institutions to jump through before feeding at the public trough will expose his proposed program to judicial scrutiny on a taxpayer challenge. But after Winn, a smart legislator ought to be able to think of all sorts of ways to get public money to underwrite religious activities, religious expressions, and religious institutions through the many open back doors.

So let’s say you wanted to have a display of the Decalogue in the lobby of your courthouse. In, let’s say entirely at random, a rural county in Kentucky. You could just do it, and then your county would get sued and you’d have to wait for a court to stop being a place where laws and actions are violated and instead be a place where a modestly politically connected lawyer awarded a black robe by the Governor assumes the role of art critic and deciding whether your display of the Decalogue was intended to promote religion or intended to be part of a broader display about the role of law in history and society. Expensive. Risky.

Or, you could have a contest in which local citizens were invited to design a display addressing the origins and roles of law in society. Then you could issue a modest grant to the County Mayor to award, in his “discretion,” to the winner, who would be chosen by the Mayor, with those funds coming from a fund given to the country by way of private donations, giving the donors tax credits in exchange for the money donated to build the display. Under Hein, since the money to actually create the award was discretionary within the executive, no one can challenge the use of public money to pay for the display. And under Winn, since the money was raised through tax credits instead of expenditures of tax funds, no one has standing to complain that the pastor of the biggest church in town, who actually donated the money that will be used to build the display of the Decalogue, is given a dollar-for-dollar credit on his property taxes in exchange for the donation.

Now, granted, you have to hope that the Mayor will actually pick a display that incorporates the desired element of the Ten Commandments. When the pastor whose tax credit-compensated money is ultimately paying for it all takes the Mayor aside and expresses his preference and says that he and his congregation of registered voters and campaign donors sure hope that the Mayor makes a good choice. We’re all praying for you, Mr. Mayor. But we won’t be suing you, because the Supreme Court has said that no one can bring such a lawsuit.

Now, it may well be the case that the only religious institutions that will realistically benefit from these back door routes to Establishment will be those who can sponsor legislators and particularly executives. That is, only those religions which have enough money and political connections available to pull the strings necessary to get these unreviewable favors out of their governments. Which is to say this favors big religions over small; rich religions will be able to take advantage of this where the poor religions will not; popular religions over unpopular will be the ones who gain public support with these new rules.

And that is the way the law is today. James Madison would be… well… I’ll let him speak for himself, when asked what he thought of a law that would have subsidize his own church:

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

Justice Kennedy has taken a very risky gamble with the legacy left to us by President Madison. He closed the front doors of the courthouse to those who would protect against the very abuses he invites by leaving the back door to Establishment open. I hope, and I invite you to pray if that is your way, that the risks inherent in this gamble do not manifest.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. You don’t mention the origins of the saying.

    “separation of church and state” are not mentioned in the Constitution.

    It was not the founders intent to remove God’s word, but to promote.

    • I disagree with you in nearly every way. The words “separation of church and state” are not in the Constitution. But neither are other words like “democracy” or “federalism.” There is no doubt and no serious debate that the Constitution is about democratic government, and that it creates a federalized system of government.

      I disagree that the Founders’ intent should be controlling on us today. I don’t believe they intended for their intent to control us. I believe they were quite aware that they didn’t have all the answers to all the questions or issues that might arise in the future and therefore intended to create as minimal and malleable a basic framework for government as they could while still having it be effective.

      I disagree that the Founders intended to promote God’s word, either by example or through force of law. I believe that they intended for us to make up our own minds as individuals on whether and if so how to experience and express faith, as free as possible from both governmental participation or interference in that experience.

      I also disagree about my attribution of the origins of the saying; I give Roger Williams the credit for it in my first sentence. Thomas Jefferson often gets the credit for that phrase based on his letter to the Danbury Baptists, but in fact it goes back to Roger Williams seeking to protect his own interpretation of Scripture from the intrusive and meddlesome theocrats governing the Massachusetts Bay Colony.

  2. The FFRF IRC 107 (income tax free ministerial housing allowance) challenge was put on hold by Judge Shubb pending the Winn decision. It can now move forward. Judge Shubb already granted “standing”, but the Government will no doubt try to leverage Winn to try and get Judge Shubb or the 9th Circuit to deny “standing” in the FFRF suit. Personally, I am inclined to read the Winn decision in its best light and have concluded that, given the distinctions between Winn and the FFRF suit, the Winn decision may be crafted so as to support the “standing” claimed by the FFRF plaintiffs. Any insights into how the Winn decision might impact the FFRF suit would be appreciated.

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