January 3, 2007

(Washington, DC) – The American Center for Law and Justice (ACLJ), which focuses on constitutional law, today filed an amicus brief with the Supreme Court of the United States urging the Court to put an end to federal taxpayer suits by church-state separationists. In the case of Hein v. Freedom From Religion Foundation (U.S. No. 06-157), the ACLJ is asking the Court to hold that the same rules apply church-state separationists as to everyone else.

“For years, atheists and others who are antagonistic to religion have had special privileges in federal court,” said Jay Sekulow, Chief Counsel of the ACLJ, which litigates religious liberty issues.  “Unlike everyone else, church/state separationists have not had to show that a law or government activity actually injured them in any way before they could challenge it in federal court. All they had to do was show that they were taxpayers. In essence, separationists have had a free pass to bring Establishment Clause lawsuits.  That’s unfair. No other citizens can sue just because they pay taxes.”

In the Hein case, separationist taxpayers challenged a federal faith-based initiatives program. The federal district court in Wisconsin dismissed the case, ruling that taxpayers had no “standing” – capacity to sue – because there was no federal grant at issue. But a federal appeals court reinstated the suit ruling that the separationists had standing to challenge the use of federal funds to run the challenged program. The federal government then petitioned the Supreme Court to review the case, and the high court agreed to hear the case.

In its friend-of-the-court brief in support of the federal government, the ACLJ points out that no federal taxpayer suits are allowed in any other context aside from Establishment Clause suits challenging federal spending. That exception, the ACLJ brief notes, rests on the 1968 decision of Flast v. Cohen. Subsequent to Flast, however, the Supreme Court has refused to expand Flast and has rejected each and every argument the Court made in support of the Flast decision.

“In sum,” the ACLJ brief concludes, “this Court has, in the years since Flast, knocked out every single rationale underpinning that decision. Like Wile E. Coyote in the old Roadrunner cartoons, Flast stands in midair, waiting only for that fact to be noticed before collapsing of its own weight.”

“The Flast precedent has created a lot of mischief,” Sekulow observed, “because it empowered every disgruntled atheist to make a federal case out of any hint of religion in a government action. It’s time the Supreme Court took another look at whether taxpayer suits under the Establishment Clause make sense under the Constitution.”

The Supreme Court will hear oral arguments in the Hein case on Feb. 28, 2007, and will likely decide the case by the end of this coming June.

Led by Chief Counsel Jay Sekulow, the American Center for Law and Justice specializes in constitutional law and focuses on religious liberty litigation.  The ACLJ is based in Washington, D.C.