Hein v. Freedom From Religion Foundation, Inc.

On June 25, 2007, the Supreme Court ruled 5-4 in Hein v. Freedom From Religion Foundation, Inc., 551 U.S. ____ (2007) that being a taxpayer is not enough to give an individual standing to bring a suit to challenge the Executive Branch's using faith-based programs for delivering social services as a violation of the First Amendment's Establishment Clause.

This ruling is important because it blocks law suits that challenges the government's accommodation of religion, including acknowledging religion and on occasion even working with religion in addressing social needs. The Hein ruling means that anti-religion zealots have no right to bring a law suit to challenge the work of the Executive Branch for involvement with religious organizations merely because this may hurt their feelings. The Hein ruling dictates that in order to have standing to challenge such Executive Branch action, the complaining party must show that it has suffered “injury in fact,” not just “psychic injury.”

The name of the complaining party indicates exactly what this law suit was all about. The complainant wants to eradicate all vestiges of religion from government. They are upset with the nation's long, constitutional tradition of accommodation of religion; they are madder still at the national motto, “In God We Trust” and at the statement in the pledge of allegiance that we are a nation “under God.” They cringe every time a President says, “God bless America.” Their stated goal is to change all of this. They wish to convert the meaning of the Establishment Clause of the First Amendment from a shield to a sword; they wish to change freedom of religion to freedom from religion.

The Hein ruling is an important defeat for the anti-religionists.

However, a review of the Hein ruling is interesting and important for some other reasons, too. Like the Court's ruling on the same day in FEC v. Wisconsin Right to Life, a majority of five conservative justices came to the same conclusion, but based upon different rationales. In fact, in both of these cases, the rationales of Justices Scalia and Thomas were in some respects closer to that of the dissenting Justices (Stevens, Souter, Ginsberg and Breyer), in that these six felt that the distinctions made by Chief Justice Roberts and Justice Alito were not logically sustainable—that there was no basis for limiting the application of Flast to Congressional acts but not to Executive acts. But in both cases, Justices Scalia and Thomas voted with the Chief Justice and Justice Alito because the former felt that the Court should overturn an erroneously decided case rather than to try to carve out an exception to the cases. I find this to be intellectually intriguing.

In Hein, discussion centers on the case of Flast v. Cohen, 392 U.S. 83 (1968), in which the Supreme Court ruled that a mere taxpayer had standing to challenge in court the government's using funds allocated by Congress under the Elementary and Secondary Education Act of 1965 to support parochial schools. (J. Scalia's concurring opinion, p. 5.) But the Court in Hein distinguished Flast by pointing out that Flast dealt with a Congressional act whereas the expenditure in Hein was a discretionary expenditure of the Executive Branch. Justices Scalia and Thomas agreed with the Chief Justice and Justices Kennedy and Alito as to the result—they just felt that Flast was wrong in the first place, and that it should be overturned.

I am with Justices Scalia and Thomas on this case. The “psychic injury” test for standing is bad policy. The Flast case continues to recognize and endorse this ephemeral standard. To illustrate the application of the “psychic injury” look at some litigation that took place in my town, Frederick, Maryland just a few years ago. An eighteen-year-old student filed suit to remove a Ten Commandments monument from the City's war veterans' memorial park. In order for this young man to state a valid cause of action he first had to declare that be seeing the Ten Commandments monument in the park that this caused him emotional pain and grief. For if the young man would not say that the monument bothered him, then he would not be able to challenge the constitutionality of the City's harboring of the Ten Commandments monument. The young plaintiff contacted the ACLU to get the legal direction he needed, then he claimed that the monument disturbed him, and then—because of the Flast case—he got standing to suit the City in court.

The Flast case has served to open the flood gates to a host of litigation aimed at making people feel good, rather than addressing claims for actual injuries in fact. The nation has become obsessed with addressing touchy, feely mental and emotional matters. The penchant for hate crime laws is another manifestation of this same trend. It is not enough to punish a criminal for his wrongful acts of violence, but we have enacted laws to give increased punishment if we can prove that the criminal harbored certain, specified bad intents at the time. This exercise is unnecessary; it is the product of legislators have too much spare time on their hands; it costs more tax monies to administer; and it causes all parties more money to implement.

Justices Scalia and Thomas were right to call for Flast to be overturned. They were unsuccessful in this, but at least the conservative block was successful in limiting the bad effects of Flast.