Now is a good time to ask a question that has bothered me for awhile: Why _was_ there taxpayer standing in Mitchell v. Helms? I'm not talking about the executive/congressional distinction. I just don't know why this didn't fall under Valley Forge rather than Flast -- the case was about property after all, not funds. And, even worse for claims of taxpayer standing, the schools didn't even get to hold on to the property -- the state retained title at all times. It may just be that I'm missing something obvious, but I just don't see how this gets out from under Valley Forge.
From: [EMAIL PROTECTED]
To: religionlaw@lists.ucla.edu
Date: Thu, 4 May 2006 08:14:13 -0400
Subject: Taxpayer Standing
As many of you know, the Seventh Circuit denied the petition for rehearing en banc in FFRF v. Chao yesterday: http://www.ca7.uscourts.gov/tmp/SM0EVXT9.pdf.Many of the judges expressly urge the Supreme Court to hear the case in order to bring some sense to its taxpayer standing jurisprudence, which Easterbrook calls "arbitrary": "comprehensiveness and rationality are not this doctrine’s hallmarks."I'd advise anyone who cares about Establishment Clause doctrine -- from any perspective -- to start boning up on standing doctrine, and to begin preparing arguments to make to the SCOTUS if it should grant cert. in this case. If the Court were, for example, to limit Flast significantly, I think that could have a dramatic impact on the Executive branch's willingness to push the envelope (witness the BOP prison case that I posted about last week: In any challenge to it, the U.S. is much more likely to win on standing than on the merits.).I have very little knowledge of the intracacies of Flast and Valley Forge, etc. But one thing about yesterday's opinions did stand out: The dissenters argue that whereas there is taxpayer standing to challenge congressional expenditures, there is no standing to challenge religion-based funding decisions made by the Executive branch. That can't be right, can it? If it were, then the "as applied" challenges in cases such as Bowen v. Kendrick (on remand) and Mitchell v. Helms should have been dismissed on standing grounds. But the Court indicated that those sorts of challenges were permissible.One other note: A reminder that the Posner distinctions in his opinion for the panel in the FFRF v. Chao case make little sense substantively, in my view. This is what I posted back in January:A divided panel of the U.S. Court of Appeals for the Seventh Circuit issued a somewhat interesting opinion today affirming taxpayer standing for a FFRF suit challenging conferences organized by the Administration's Centers for Community and Faith-Based Initiatives:I must confess that the intracacies of the taxpayer standing doctrine make my eyes glaze over, and my head hurt; but for those of you who are interested in such things, the opinions appear to be a treasure trove . . .I have a question, however, about an incidental discussion in Posner's majority opinion about the merits of the EC claim:FFRF alleges that CFBI Conferences "are designed to promote religious community organizations over secular ones." In other words, the complaint apparently is not about CFBI social-service funding decisions, but about the conferences themselves, and the allegation that at such conferences the CFBI Centers "promote" religious organizations over nonreligious organizations. Here's the curious passage in the Posner opinion:The complaint—all we have to go on at this stage—is wordy, vague, and in places frivolous, as where it insinuates that the President is violating the establishment clause by “tout[ing] the allegedly unique capacity of faith-based organizations to provide effective social services”— as if the President were not entitled to express his opinion about such organizations. But the complaint is not entirely frivolous, for it portrays the conferences organized by the various Centers as propaganda vehicles for religion, and should this be proved one could not dismiss the possibility that the defendants are violating the establishment clause, because it has been interpreted to require that the government be neutral between religion and irreligion as well as between sects.What distinction is Posner trying to draw here? If a presidentially created program holds conferences at which government officials claim that faith-based social services are preferable (or more effective) than non-faith-based services, that's an Establishment Clause violation -- but if the President of the United States, in his official capacity, says exactly the same thing, it's not an EC violation?Why?For a couple of reasons, the distinction can't be that one form of religious "propaganda" requires an additional expenditure of funds whereas the other doesn't. First, whereas such a distinction might make a difference for standing purposes, the substantive requirement of neutrality that Posner identifies is not dependent on expenditures. Second, and perhaps more to the point, in each of the two cases the religious "propaganda" itself does not entail any additional expenditure of funds: Presumably, the President's speech would proceed, at the same cost, even if he did not include the statement about the unique capacity of faith-based organizations; but similarly, the CFBI conference presumably would be run at the same cost even if it treated faith-based and non-fait-based organizations equally, touting the value of all social-service organizations without regard to religion.So what's the distinction on which Posner is relying? I imagine there are many on this list who think that both cases are EC violations; and many others who may think that neither is. But does anyone agree that a pro-religion conference would violate the EC but that a pro-religion official presidential speech would not (or, I suppose, vice versa)?
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