7th Circuit Holds Taxpayers Lack Standing To Challenge Indiana Legislative Prayer

Yesterday in Hinrichs v. Speaker of the House of Representatives of the Indiana General Assembly, (7th Cir., Oct. 30, 2007), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision, held that Indiana taxpayers lack standing to challenge the opening of Indiana legislative sessions with sectarian prayers. The majority applied two recent U.S. Supreme Court decisions-- DaimlerChrsyler Corp. v. Cuno, a 2006 case that held state taxpayer suits in federal court must meet the same criteria as federal taxpayer suits, and Hein v. Freedom from Religion Foundation, Inc., a 2007 case that interpreted federal taxpayer standing narrowly. The majority opinion in the 7th Circuit relied on the fact that there was no specific legislative appropriation establishing the program that invited guest ministers to deliver invocations. The majority said that the minimal costs associated with the program have nothing to do with the content of the prayers offered. Judge Wood dissenting argued that the House Rule calling for opening each session with prayer is a legislative act that creates a pocketbook injury to plaintiff taxpayers, and therefore gives them standing.

Covering yesterday's decision, the Indianapolis Star quotes ACLU attorney Ken Falk. He says if the legislature resumes sectarian prayer, his group would be willing to file suit on behalf of a person who would likely have standing-- someone who regularly attends legislative sessions and must listen to the prayers.

Meanwhile the American Jewish Committee issued a release saying that yesterday's decision "is extremely alarming because it denies taxpayers the right to challenge a legislative act that in practice gives preferential access to Christian clergy in determining who shall present a daily legislative prayer." Indiana Attorney General Steve Carter released a statement in support of the decision, saying: "Legislative prayer is a worthy act that I think the State should protect within relevant legal precedents."

Numerous prior postings on the case can be accessed at this link. Links to a recording of the Sept. 2006 oral arguments before the 7th Circuit , and to the earlier opinion staying the lower court's injunction pending appeal, are also available online.

Head of White House Faith-Based Initiative Interviewed

Today's Waco, Texas Tribune-Herald publishes an interview with Jay Hein, director of the White House Office of Faith-Based and Community Initiatives. Among other things, Hein says he expects that his Office, created by Executive Order, will survive beyond the Bush administration. He said: "more and more public officials on both sides of the political aisle see the pragmatic value of this as a governing strategy." Asked about safeguards in maintaining separation of church and state in the program, Hein said: "We're setting the bar very high on understanding appropriateness, the appropriate use of public funds and the appropriate expression of faith in delivery of services."

Recent Articles and Books on Law & Religion, Church-State

From SSRN:

• Ira C. Lupu & Robert W. Tuttle, Ball on a Needle: Hein V. Freedom from Religion Foundation and the Future of Establishment Clause Adjudication, (Brigham Young University Law Review, Forthcoming Feb. 2008).
  
• David B. Kopel, Self-Defense in Asian Religions, (Liberty Law Review, Vol. 2, p. 79, 2007).
  
• David R. Barnhizer & Daniel D. Barnhizer, Myth, Magic and Mystery: Defending the Hidden Order of the Rule of Law, (Cleveland-Marshall Legal Studies Paper No. 07-149, Oct. 16, 2007).
  
• John Copeland Nagle, The Evangelical Debate Over Climate Change, (University of St. Thomas Law Journal, Forthcoming).
  
• JoEllen Lind, What Counts as Neutrality? The Religion and Race Cases Compared, (Valparaiso University Legal Studies Research Paper No. 07-04).
  
• David B. Kopel, Dhimmitude and Disarmament, (George Mason University Civil Rights Law Journal, Forthcoming).
  
• Steven Douglas Smith, How Is America 'Divided by God'?, (Mississippi College Law Review, Vol. 27, 2007).

From SmartCILP:

• Ryan Spear, What We Talk About When We Talk About God (Reviewing Richard Dawkins, The God Delusion; Sam Harris, Letter to a Christian Nation; and E. O. Wilson, The Creation: An Appeal to Save Life on Earth), 1 Harvard Law & Policy Review 495-506 (2007).

Recent Books:

• Forrest Church, So Help Me God: The Founding Fathers and the First Great Battle Over Church and State, (Harcourt, Sept. 10, 2007), reviewed by the Deseret Morning News.
  
• D. Michael Lindsay, Faith in the Halls of Power: How Evagelicals Joined the American Elite, (Oxford Univ. Press, Aug. 2007), reviewed in the Wall Street Journal.

InnerChange: Latest Developments

On July 1, 2007, this blog reported (here) that Iowa prison officials have reached an agreement with the faith-based prison treatment program, InnerChange, permitting it to continue to operate-- at its own expense-- at Newton Correctional Facility pending the U.S. 8th Circuit Court of Appeals decision on whether the program violates the Establishment Clause.

Yesterday's Des Moines Register (IA) has an editorial calling that decision into question, writing "If the state desires to institute 'values based' programs aimed at reforming convicted criminals, it must be sure they are not disguised as government-sponsored avenues for evangelization."

Defendants have also filed two F.R.A.P. 28(j) letters providing supplemental authorities to the court. One relates to rates of recidivism for inmates in the program. The second discusses the Supreme Court's decisions in Hein v Freedom from Religion Foundation, 551 U.S. ____ (2007) (June 25, 2007) and University of Notre Dame v Laskowski, No. 06-582 (US June 29, 2007) (cert. granted, judgment vacated and remanded in light of Hein). Both of these cases are discussed here.

Defendants argue that the district court relied heavily on Laskowski, and "[t]hus the anomalous legal basis for allowing private, taxpayer plaintiffs to compel restitution to the government is gone, and the decision below granting that remedy should be reversed." Plaintiffs argue in reply that unlike the case in Hein, "InnerChange was funded for the last four years with appropriations by the Iowa Legislature specifically for the program." Plaintiffs also argue that "The restitution question is an issue of remedy, not standing. Hein does not impact the logic of prior cases that treated restitution as an available remedy...."

Supreme Court Remands Notre Dame Case In Light of Hein Decision

On Friday, taking up the case of Notre Dame University v. Laskowski, (Case No. 06-582), the U.S. Supreme Court granted certiorari, vacated the judgment below and remanded the case to the 7th Circuit for further consideration in light of the Court's recent decision in Hein v. Freedom from Religion Foundation, Inc. In the Notre Dame case, the 7th Circuit had held that taxpayers had standing to challenge a grant from the Department of Education to Notre Dame University to fund a Catholic teacher training program. The case raised the unusual question of whether Notre Dame might have to repay past government funds it had already spent. (See prior postings 1, 2.) Unlike the expenditure in Hein that was from a general appropriation to the executive branch, the funds given to Notre Dame stemmed from a specific earmark by Congress in Sec.309 of the Consolidated Appropriations Act, 2000, Pub. L. 106-113, 113 Stat. 1501A-261 to 262 (Nov. 29, 1999). Today's Inside Higher Ed reports on the Supreme Court's action.

US Supreme Court Holds Taxpayers Lack Standing To Challenge White House Faith-Based Initiative Expenditures

This morning in a 5-4 decision in Hein v. Freedom From Religion Foundation, (S.Ct., June 25, 2007), the U.S. Supreme Court held that taxpayers lack standing to challenge expenditures and activities of President Bush's Office of Faith-Based and Community Initiatives, distinguishing the facts from those in the seminal taxpayer standing case, Flast v. Cohen. The majority opinion was written by Justice Alito. Justices Scalia and Thomas, in a concurring opinion, urged that Flast be overruled. Justice Souter wrote the dissent. SCOTUS Blog, as usual, had the first report on the decision. Here are more details:

The plurality opinion was written by Justice Alito, who was joined by Chief Justice Roberts and Justice Kennedy. Here are excerpts from the Court's syllabus of that opinion:

The link between congressional action and constitutional violation that supported taxpayer standing in Flast is missing here. Respondents neither challenge any specific congressional action or appropriation nor ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional. That is because the expenditures at issue were not made pursuant to any Act of Congress, but under general appropriations to the Executive Branch to fund day-to-day activities. These appropriations did not expressly authorize, direct, or even mention the expenditures in question, which resulted from executive discretion, not congressional action. The Court has never found taxpayer standing under such circumstances....

Respondents argue to no avail that distinguishing between money spent pursuant to congressional mandate and expenditures made in the course of executive discretion is arbitrary because the injury to taxpayers in both situations is the same as that targeted by the Establishment Clause and Flast-- the expenditure for the support of religion of funds exacted from taxpayers. But Flast focused on congressional action, and the invitation to extend its holding to encompass discretionary Executive Branch expenditures must be declined....

Taking the Circuit’s zero-marginal-cost test literally-- i.e., that any marginal cost greater than zero suffices-- taxpayers might well have standing to challenge some (and perhaps many) speeches by Government officials. At a minimum, that approach would create difficult and uncomfortable line-drawing problems.

Justice Kennedy also wrote a separate concurrence in which he said: "It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations."

Justice Scalia, joined by Justice Thomas, concurred. Here are excerpts from the syllabus of that concurrence:

A taxpayer’s purely psychological disapproval that his funds are being spent in an allegedly unlawful manner is never sufficiently concrete and particularized to support Article III standing.... Although overruling precedents is a serious undertaking, stare decisis should not prevent the Court from doing so here. Flast was inconsistent with the cases that came before it and undervalued the separation-of-powers function of standing. Its lack of a logical theoretical underpinning has rendered the Court’s taxpayer-standing doctrine so incomprehensible that appellate judges do not know what to make of it. The case has engendered no reliance interests. Few cases less warrant stare decisis effect. It is past time to overturn Flast.

Justice Souter wrote a dissent in which Justices Stevens, Ginsburg and Breyer joined. They said, in part:

Here, the controlling, plurality opinion declares that Flast does not apply, but a search of that opinion for a suggestion that these taxpayers have any less stake in the outcome than the taxpayers in Flast will come up empty: the plurality makes no such finding, nor could it. Instead, the controlling opinion closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury. I see no basis for this distinction in either logic or precedent....

SCOTUS Hears Arguments Today On Taxpayer Standing To Challenge Faith-Based Inititative

Today, the U.S. Supreme Court hears oral arguments in Hein v. Freedom From Religion Foundation, raising the question of whether taxpayers have standing to bring an Establishment Clause challenge to expenditures and activities of President Bush's Office of Faith-Based and Community Initiatives. The 7th Circuit said they did. (See prior postings: 1, 2 .) Detailed background on the case can be found in a posting at The Roundtable, written by Professors Ira Lupu and Robert Tuttle. An editorial in today's New York Times urges the Supreme Court to affirm the 7th Circuit's grant of standing.

UPDATE: The Los Angeles Times has an account of today's oral arguments in the case.

UPDATE: The full transcript of today's oral arguments in the Hein case is now available online.

UPDATE: Dahlia Lithwick at Slate has a particularly interesting account of the oral argument.

Court Refuses Delay In Challenge To Faith-Based Prison Program

In Moeller v. Bradford County, 2007 U.S. Dist. LEXIS 7965 (MD PA, Feb. 5, 2007), a Pennsylvania federal magistrate judge rejected defendant's motion to stay proceedings in a case challenging the constitutionality of federal, state and local funding of a faith-based vocational training program in the Bradford County (PA) Correctional Facility. (See prior posting.) Defendant had argued that the case should not move ahead until the U.S. Supreme Court hands down its decision in the pending case of Hein v. Freedom From Religion Foundation. (See prior posting.) The court wrote: "It is speculative as to if any decision issued by the Supreme Court in Hein would in fact affect our case and the standing decision this Court has rendered, and it is speculative as to when the Supreme Court will issue its decision."

Cert. Granted On Taxpayer Standing To Challenge White House Faith-Based Office

Yesterday, the United States Supreme Court granted certiorari in Hein v. Freedom From Religion Foundation, No. 06-157. (See prior posting on filing of petition for cert. [Updated:] Here is the Brief in Opposition [Westlaw link] and the Solicitor General's reply brief to the petition.) The case involves the question of whether taxpayers have standing under the Establishment Clause to challenge activities of President Bush's Office of Faith-Based and Community Initiatives. The 7th Circuit Court of Appeals held that there is taxpayer standing to challenge Executive Branch spending for organizing national and regional conferences and for making speeches promoting faith-based funding, even though these activities were paid for from a general appropriation without Congressional earmarking of the funds for a specific program. (See prior posting.) Yesterday's Washington Post reported on the Supreme Court's action. [Thanks to Aaron Stemplewicz & to Marty Lederman via Religionlaw, for the cert. petition and reply brief links.]

Dutch Justice Minister-- Sharia Could Be Established Democratically

In Netherlands, Justice Minister Piet Hein Donner said that if enough people vote for it, the country should be able to adopt Islamic law. The statement is reported Wednesday in WorldNet Daily. It came in reaction to parliamentary leader Maxime Verhagen who argues that the country should ban parties wanting to establish Islamic law. Donner said that Muslims have a right to practice their religion in ways that are different from Dutch social norms, and concluded that Muslim groups should be able to come to power through democratic means.

Dutch Justice Minister Refuses To Bar Madonna's Concert

As Madonna's "Confessions" concert tour moves through Europe, Christian groups continue-- unsuccessfully-- to protest her mock crucifixion scene. On Friday, Netherlands' Justice Minister Piet Hein Donner refused requests by the Protestant Reform Party to block her appearance. CBC reported yesterday that Donner told those opposing Madonna's act; "Judgment over whether the event in question constitutes blasphemy is not up to the justice minister, but up to prosecutors and ultimately a judge." (See prior related posting.)

New Head Of White House Faith-Based Office Appointed

Almost unnoticed last week, President George W. Bush appointed a new head of the White House Office of the Faith-Based and Community Initiatives. He is Jay Hein. The White House's Aug. 3 announcement of the appointment said:

Mr. Hein is the President of the Sagamore Institute for Policy Research, a national think tank he founded that specializes in community-based reforms. Mr. Hein also serves as Executive Vice President and CEO of the Foundation for American Renewal, which provides financial grants and other support to community-based organizations and educates the general public on effective compassion practices.

"Jay has long been a leading voice for compassionate conservatism and a champion of faith and community-based organizations. By joining my Administration, he will help ensure that these organizations receive a warm welcome as government's partner in serving our American neighbors in need," stated President Bush.

Mr. Hein previously was Executive Director of Civil Society Programs at the Hudson Institute. Earlier in his career, he served as a Welfare Reform Policy Assistant to the Governor of the State of Wisconsin...

One of the few papers covering the appointment of the Indiana resident was the Indianapolis Star which said that White House officials discovered Hein when, at the suggestion of former Indiana Senator Dan Coates, they went to Hein for suggestions about other candidates for the job.