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	Three Important Developments Involving Law and Religion during the Summer of 2007 By Marci Hamilton Find Law September 6, 2007 http://writ.news.findlaw.com/hamilton/20070906.html I took a short break from my column-writing duties this summer in order to finish my forthcoming book. Looking back over the summer, I saw three major developments in the area of law and religion. The Supreme Court Narrows Taxpayer Standing in Establishment Clause Cases From the moment that Justice Samuel Alito joined the Supreme Court in the seat left by Justice Sandra Day O'Connor's retirement, there has been reason to be concerned that the Establishment Clause would become more watered down than it already is. The open question was would he be an "incrementalist" who chipped away at the separation of church and state bit by bit, or would he take the most extreme positions taken by Justices Scalia and Thomas. In June, we learned that the answer is the former. The Court's decision in Hein v. Freedom from Religion ruled that taxpayers do not have standing to challenge executive spending where the funds were taken from "general" executive branch funds. (The Freedom from Religion Foundation had challenged the White House's Faith-based Initiatives funding.) The marquee question in the case was whether Flast v. Cohen -- which recognized that the values of the Establishment Clause permit taxpayers to challenge government expenditures of funds for religious purposes -- would be overruled. The implicit reasoning in Flast is persuasive: When the government expends funds in favor of religious entities, there is injury to the taxpayer whose taxes have been used to support another's religion. This was the heart of the reasoning in James Madison's Memorial and Remonstrance, where Madison argued that not even "three pence" of taxpayers' proceeds should be used to pay Christian teachers in Virginia. Justice Alito, joined by Chief Justice Roberts and Justice Kennedy, took the position that although Flast should not be overruled, they would not apply the principles of Flast to government funds that were taken from an executive branch general fund. Rather, taxpayer standing would only be permitted in situations where Congress had specifically designated the funds be used for a religious purpose. Not only is the reasoning incremental, it is also simply intellectually and morally indefensible. The harm identified by Flast is certainly present in Hein: taxpayers' funds were being used to support a religious mission. In fact, the case creates an unattractive incentive for the executive branch to curry favor with religious entities, by immunizing it from Establishment Clause attack so long as it pulls funds from "general" accounts. That is the kind of incentive to pander to religion that this Administration especially does not need. Justices Scalia and Thomas, in a principled, if utterly wrongheaded and historically indefensible, concurrence would have jettisoned taxpayer standing altogether. The 4-person dissent would have preserved Flast, as is, and applied it to find standing in the case before the Court. When combined with the three-person plurality, there were 7 votes for the proposition that taxpayer standing in the Establishment Clause context stands, but the parameters around Flast were definitely tightened. Contact: hamilton02@aol.com
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