Who Gets to Sue the Government?


ACRU Staff


July 25, 2007

On 25 June, the Supreme Court decided the case of Hein v. Freedom from Religion Foundation. As the name of the appellee suggests, they seek to remove all references to religion from all public places. They filed suit seeking a court order that the White House Office of Faith-Based and Community Initiatives (directed by Mr. Hein) was an unconstitutional use of federal funds.

The ACLU did file a brief in this case, supporting the effort of the Freedom from Religion Foundation to shut down the White House Office of Faith-Based … Initiatives.

The trial court, however, dismissed the case for lack of standing to sue. The Seventh Circuit Court of Appeals reversed. But the Supreme Court reversed again, dismissing the case. Justice Alito, joined by the Chief Justice and Justice Kennedy, concluded that the Seventh Circuit was in error in reading broadly the Supreme Court precedent of the Flast case. Justices Scalia and Thomas would have gone further, and overruled the Flast case. Justices Souter, Stevens, Ginsburg and Breyer would have agreed with the Seventh Circuit, and expanded Flast to mean that any taxpayer at any time could file suit if he thought any reference to religion in public, was excessive.

Because Justice Scalia combines a logical mind with an acid tongue, a brief quote from his Concurrence is appropriate:

“If this Court is to decide cases by rule of law rather than show of hands, we must surrender to logic and choose sides: Either Flast v. Cohen, 392 U. S. 83 (1968) , should be applied to (at a minimum) ALL challenges to the governmental expenditure of general tax revenues in a manner alleged to violate a constitutional provision specifically limiting the taxing and spending power, or Flast should be repudiated. For me, the choice is easy. Flast is wholly irreconcilable with the Article III restrictions on federal-court jurisdiction that this Court has repeatedly confirmed are embodied in the doctrine of standing.” [Emphasis in the original.]

His comment is telling. The Supreme Court should always decide cases “by rule of law rather than show of hands.” Yet in this very case, seven Justices went by show of hands. Only two can claim a logical, legal basis for their conclusions.



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