THE SEPARATION OF CHURCH AND STATE VS.

THE SEPARATION OF POWERS: HAS THE COMPLEXITY OF ONE RESULTED IN THE INADVERTENT BETRAYAL OF THE OTHER? I. INTRODUCTION The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle.1 James Madison famously opposed a Virginia bill that provided taxpayer support of religion teachers.2 After the bill was initially presented to the House of Delegates during the 1784-85 session of the Virginia Assembly, voting was postponed and Madisons argument against the proposal was circulated in an effort to prevent the bill from becoming law.3 Madisons appeals were successful in the 18th century,4 and continue to influence American jurisprudence today.5 The Arizona Legislature, however, has not shared Madisons vision that such tax laws be stopped before even three pence are spent in support of religious establishment.6 Thus,
1

Historic Reference Works by James Madison, LONANG.COM,

http://www.lonang.com/exlibris/misc/remonstrance.htm (last visited July 1, 2011). These are the sentences that precede the excerpt quoted in Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1446 (2011) (plurality opinion).
2

Editors Note Historic Reference Works by James Madison, LONANG.COM,

http://www.lonang.com/exlibris/misc/remonstrance.htm (last visited July 1, 2011).

3

Id. Id. See, e.g., Flast v. Cohen, 392 U.S. 83, 103 (1968). See Ariz. Christian Sch., 131 S. Ct. at 1450 (Kagan, J., dissenting) (noting that Arizona has

0947825 Madisonian-minded plaintiffs in Arizona Christian School Tuition Org. v. Winn allege that the Arizona tax credit program7 is an unconstitutional violation of the Establishment Clause because it is not religiously neutral.8 Conversely, the State and the school tuition organizations (STOs) that benefit from this program argue that scholarship funds are directed by the private choices of taxpayers, parents, and STOs.9 Although this noble debate would have invoked a discussion regarding foundational principles upon which this nation was formed, the conversation has been stifled due to judicial concerns regarding the separation of powers doctrine and standing.10 Ordinarily, when judges refrain from laying down broad rules in their opinions, they uphold separation of powers principles11 because this minimalist approach requires legislatures to

estimated $350 million in tax revenue diverted to school tuition organizations, some of which benefit religious private schools).
7

ARIZ. REV. STAT. ANN. 43-1089 (2010). This statute has undergone various changes, but the tax

credit program has remained the same in the way that it allows taxpayers to contribute money to organizations that then funnel it to private religious and secular schools.
8

See Ariz. Christian Sch., 131 S. Ct. at 1450 (Kagan, J., dissenting). Brief for Petitioner Arizona Christian School Tuition Organization at 6, Ariz. Christian Sch.

Tuition Org. v. Winn, 131 S. Ct. 1436 (2011) (No. 09-987, 09-991) 2010 WL 3017756 (arguing that the individual taxpayer chooses whether or not to donate, which STO to benefit, and that the STOs are privately formed).
10

See generally Ariz. Christian Sch., 131 S. Ct. 1436 (plurality opinion). Cass R. Sunstein, Forward: Leaving Things Undecided, 110 HARV. L. REV. 4, 17, 19 (1996).

11

She notes that minimalist opinions create room for other branches of the government to bend according to the demands imposed by democracy. 2

0947825 clarify their laws in adherence to the Constitution.12 Despite an attempt at minimalism, the plurality opinion in Arizona Christian not only proliferates confusion about taxpayer standing,13 but also betrays the very separation of powers principles these Justices intended to protect.14 The courts reasoning stifles democracy because it proscribes the way in which legislatures may speak,15 and simultaneously silences opponents whose concerns are rooted in the Establishment Clause of the First Amendment.16 But was this court left with any other choice? This Note is critical of Justice Kennedys analysis for the plurality, but will attempt to understand the reasoning behind his approach. It is organized into four parts, including this
12

Cf. id. at 25. Sunstein uses the example of a court making a minimalist ruling by striking down

a law regulating sexually explicit speech on the Internet, but declining to define the type of Internet speech that is protected, instead leaving that for the legislature to decide.
13

See Joel Fifield, No Taxation Without Separation: The Supreme Court Passes on an

Opportunity to End Establishment Clause Exceptionalism, 31 HARV. J.L. &PUB. POLY 1195, 1207 (2008) (arguing that minimalism leads to continued confusion about taxpayer standing).
14

See Ariz. Christian Sch., 131 S. Ct. at 1441-1442 (plurality opinion) (Continued adherence to

the case-or-controversy requirement of Article III maintains the publics confidence in an unelected but restrained Federal Judiciary.).
15

The Court's opinion thus offers a roadmapmore truly, just a one-step instructionto any

government that wishes to insulate its financing of religious activity from legal challenge. Id. at 1462 (Kagan, J., dissenting).
16

Justice Kagan argues that the courts arbitrary distinction may eliminate all opportunities for

taxpayers to assert the taxpayer standing exception because appropriations and tax breaks are interchangeable and achieve identical goals. Id. at 1450. 3

0947825 introduction. Part II will give background on Arizona Christian, the Ninth Circuits holding, and the various Supreme Court opinions. Part III will consider the conflict between the Separation of Powers Doctrine and the Flast v. Cohen exception for taxpayer standing to determine if the latter should ever have been created. Furthermore, Part III will discuss judicial minimalism, analyze how the courts attempt at this became misguided, and consider the merits of Justice Scalias solution. II. CASE RECITATION A. Background 1. Procedural History Before 43-1089 of the Arizona tax code took effect, taxpayer-plaintiffs brought an unsuccessful facial challenge alleging that the law violated the Establishment Clause.17 In 2002, new taxpayers brought a similar as-applied challenge that went before the Supreme Court to determine whether the Tax Injunction Act barred their suit.18 The proceedings on remand take issue with the exception to taxpayer standing and have culminated in the case at hand.19 At the district level, defendants won a dismissal of the case.20 The Ninth Circuit, however, reversed and held that the taxpayers claim was justiciable.21 The Supreme Court reversed the Ninth Circuit
17

The Supreme Court of Arizona interpreted the statute as constitutional in Kotterman v. Killian,

972 P.2d 606 (1999) (en banc) because qualified schools were determined to be only indirect recipients of taxpayer contributions. See Winn v. Ariz. Christian Sch. Tuition Org., 562 F.3d 1002, 1006-07 n.3 (9th Cir. 2009) (opinion by Fisher, J.), revd, 131 S. Ct. 1436 (2011).
18

The Supreme Court held that their suit was not barred by the Act. 562 F.3d at 1006-07. See generally Id. at 1007. Id. Id. at 1005. 4

19

20

21

0947825 and denied taxpayers standing in a 5-4 decision.22 2. The Facts 43-1089 allows a taxpayer to receive up to $500 per individual and $1000 per married couple, dollar-for-dollar credit against their tax liability for making a donation to a STO.23 STOs are private, non-profit organizations that must apply to the Arizona Department of Revenue for certification before being eligible to receive funds from the tax credit program.24 The STOs use this tax money to provide scholarships for students to attend private religious and secular schools.25 Taxpayers argue that most of the scholarships are awarded by religious organizations based on a students religious affiliation.26. The First Amendment of the Constitution states, Congress shall make no law respecting an establishment of religion.27 Petitioners argue that taxpayers do not meet the requirements of standing and fail to state a claim under the
22

See Ariz. Christian Sch., 131 S. Ct. at 1449. Id. at 1440. See ARIZ. REV. STAT. ANN. 43-1502 (2010). See also Brief for Respondents Kathleen M.

23

24

Winn, et al. at 3-4, Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011) (No. 09987, 09-991) 2010 WL 3624706 (taking issue with the fact that these organizations are created pursuant to Arizona law, are certified and overseen by the state, and are wholly funded by state income-tax revenue).
25

562 F.3d at 1006. Brief for Respondents, supra note 24, at 3. See also 131 S. Ct. at 1440 (plurality opinion)

26

(STOs use these contributions to provide scholarships to students attending private schools, many of which are religious.).
27

U.S. CONST. amend. I. 5

0947825 Establishment Clause.28 A plaintiff must establish standing in order to comply with the case or controversy requirement of Article III.2930 As a general rule, the Supreme Court has held that standing is not satisfied if the claim is only based on the fact that the plaintiff pays taxes.31 Taxpayers, in this case, argue that they fall under the exception to taxpayer standing created by Flast.32 In order to meet the requirements of this exception, taxpayers must show that there is a connection between their status and: (1) the type of law they are challenging,33 as well as (2) the nature of the constitutional infringement alleged.34 A valid claim challenging the Establishment Clause must meet the requirements set out in Zelman v. Simmons-Harris, 536 U.S. 639 (2002).35 Although the Ninth Circuit discussed this at
28

Brief for Petitioner Arizona Christian School Tuition Organization, supra note 9, at 46-47. U.S. CONST. art. III 2, cl. 1. 131 S. Ct. at 1442. To meet the minimum requirements for standing, a plaintiff must show that

29

30

they have suffered an injury in fact, that was caused by the conduct complained of, and is redressable by a favorable outcome. Id.
31

Id. at 1442-43. Plaintiffs cannot satisfy the particularized injury requirement because their

interest as a taxpayer is too indefinite. Id.

32

Id. at 1445. See also supra note 5. Flast, 392 U.S. at 102 (giving the example that an incidental expenditure in a regulatory statute

33

will not pass this part of the test).

34

Id. at 102-03 (stating that the taxpayer must show that the law exceeds a specific congressional

power such as taxing and spending).

35

See Winn, 562 F.3d at 1011-13. A valid claim will assert that the law in question was made

with the purpose or effect of aiding or hindering religion. Id. 6

0947825 length, the Supreme Court held that taxpayers did not meet the Flast requirements, and thus did not reach the issue of whether or not plaintiffs had a valid claim.36

B. Ninth Circuits Holding37 1. The Courts Opinion on Standing The Ninth Circuit rejected Petitioners argument that the money received by STOs could not be categorized as expenditures based on the fact that the money never passed through the states treasury.38 This court reasoned that the Supreme Court had declined to make a similar, distinction between expenditures and credits in Mueller v. Allen, 463 U.S. 388 (1983).39 Thus, the Ninth Circuit held that taxpayers had standing under Flast to challenge this exercise of Arizonas taxing and spending power because it was conceivable that the state was authorizing individuals to mediate state funding of STOs and, by extension, to aid religious organizations.40
36

See generally Ariz. Christian Sch., 131 S. Ct. 1436 (plurality opinion). 562 F.3d 1002. Circuit Judge Raymond C. Fisher wrote the opinion for the three-judge panel

37

and was joined by Judges D.W. Nelson, and Stephen Reinhardt. A majority of the full court denied en banc review with 8 judges dissenting. See Winn v. Ariz. Christian Sch. Tuition Org., 586 F.3d 649 (9th Cir. 2009), revd, 131 S. Ct. 1436 (2011).
38

Winn, 562 F.3d at 1009. Id. The court also quotes Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756

39

(1973) for the proposition that it makes no difference if religion is advanced through the receipt of cash or the money that would otherwise be paid to the state. Winn, 562 F.3d at 1009.
40

See id. at 1010-11. The court also cites to Bowen v. Kendrick, 487 U.S. 589 (1988) to assert

that standing was found where the state used its power to authorize third parties to fund religious organizations. Winn, 562 F.3d at 1010. 7

0947825 2. The Courts Opinion on the Validity of the Claim The Ninth Circuit applied precedent established by the Supreme Court in Zelman to determine whether taxpayers had enough in their claim to prove that the statute did not have a secular purpose and effect.41 First, the court looked at the legislative history of 43-1089 and determined that although the laws purpose could be secular, the operation of the law may reveal that the real function is to advance the legislatures religious aims because STOs are allowed to restrict scholarships to a few religious schools.42 Next, the court concluded that the second half of the Zelman test was satisfied because the claim sufficiently asserted that as-applied, the law may have the effect of endorsing religion.43 Thus, the court held that the claim was sufficient to allege a violation of the Establishment Clause.44 C. The Supreme Courts Opinions 1. Justice Kennedys Opinion for the Plurality Five members of the court45 reversed the Ninth Circuits decision and further limited the
41

Id. at 1012-13. Id. at 1011-12. The court notes that it is reluctant to assume that the state had an

42

unconstitutional motive, but holds that there is enough in the claim for summary judgment purposes. Id.
43

Id. at 1013. The court noted that since over 85 percent of the scholarship money is only

available for religious schools, parents choices are skewed toward sending their children to religious schools and that the Arizona program differs from other programs claiming to provide better educational opportunities in that it does not provide the assistance directly to parents of qualifying students, which was a meaningful difference. Id. at 1016-17.
44

Winn, 562 F.3d at 1023. Ariz. Christian Sch., 131 S. Ct. at 1440 (plurality opinion). Justice Kennedy was joined by 8

45

0947825 exception to taxpayer standing created by Flast.46 Three of the Justices in the plurality were greatly influenced by separation of powers principles and the concern that allowing taxpayers to have standing in this case would significantly restrict legislatures taxing and spending powers.47 Justice Kennedy explained that the first three Articles of the Constitution create the separation of powers, and Article III gives the judiciary the power to resolve only cases or controversies.48 He reasoned that the court must be careful not to overstep this limitation in order to maintain the publics confidence in a court that is not elected.49 Justice Kennedy reiterated the traditional standing requirements and explained that taxpayers failed to satisfy them because their injury was not particularized.50 Looking next at the exception to taxpayer standing created by Flast, Justice Kennedy denied that plaintiffs could bring their case under this precedent because the injury in that case

Chief Justice Roberts and Justices Alito, Scalia, and Thomas. Justice Scalia wrote a concurring opinion joined by Justice Thomas.
46

See id. One can infer that Chief Justice Roberts and Alito shared Justice Kennedys concern because

47

they fully joined his opinion. See id.

48

Id. at 1441. Justice Kennedy also noted that it is important to resolve cases incrementally. Id. Id. at 1442. Justice Kennedy also explained that if the court decides questions that arise outside

49

of the Art. III limits, the result would obstruct the Constitutions democratic character. Ariz. Christian Sch., 131 S. Ct. at 1442.
50

Id. at 1442-45. Under Frothingham v. Mellon, 262 U.S. 447 (1923), no taxpayer could use

their status as such to satisfy Article III requirements because their injury is too remote. Thus, their case amounts to a matter of public concern rather than a controversy. 131 S. Ct. at 1443. 9

0947825 was the very extraction and spending of tax money in aid of religion.51 Although the plurality conceded that tax credits and expenditures could have similar economic effects, Justice Kennedy reasoned that a tax credit does not create a direct connection between a dissenting taxpayer and the religious establishment that benefits on the receiving end.52 Thus, the plurality overruled the Ninth Circuit and held that taxpayers did not fall under the narrow Flast exception for taxpayer standing.53 Justice Kennedy declined, however, to completely overrule Flast.54 2. Justice Scalias Concurring Opinion55 Justice Scalia briefly concurred to assert that he joined the plurality because it found that taxpayers lacked standing by applying Flast.56 However, he also made reference to the
51

Id. at 1446. The dissent is especially critical of this reasoning. See infra note 67 and

accompanying text.
52

Id. at 1447. Justice Kennedy stated that this difference was crucial to the finding of an injury in

Flast based on the history of the Establishment Clause and James Madisons objection to a tax that would support religion teachers in the 18th Century. Id. at 1446. See also supra Part I.
53

Id. at 1449. Justice Kennedy started by saying that some plaintiffs could satisfy standing by

asserting that a laws alleged support of religion had caused them direct harm. See id. at 1439.
54

See generally Ariz. Christian Sch. Tuition Org., 131 S. Ct. 1436 (plurality opinion). See also

Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587, 616 (2007) (Kennedy, J., concurring) (In my view the result reached in Flast is correct and should not be called into question.).
55

Joined by Justice Thomas. Ariz. Christian Sch., 131 S. Ct. at 1450 (Scalia, J., concurring) (I . . . join the Courts opinion

56

because it finds respondents lack standing by applying Flast rather than distinguishing it away on unprincipled grounds.). Perhaps he thinks that there is no link between the taxpayers status and 10

0947825 concurrence he wrote in Hein v. Freedom From Religion Foundation, Inc., where he reasoned that Flast created a new type of injury, which he termed Psychic Injury.57 In Hein, Justice Scalia said that the court must decide whether this type of injury is consistent with Article III. 58 He reasoned that if the court answered this in the affirmative, Flast should be applied to all allegations of unconstitutional government expenditures, buts if this injury was not consistent with the Constitution, he said the only logical solution was to overrule Flast.59 Answering his own question, Justice Scalias concurrences asserted then and now that Flast could never be reconciled with Article III.60 He concluded his concurrence in Arizona Christian, by chastising both the majority and dissent for debating whether or not taxpayers fell within the Flast the tax credit because a taxpayer can choose not to take advantage of the credit, or he may agree with the states assertion that government funds are not spent on religion because private taxpayers choose to contribute to STOs. See supra note 9. Either of these lines of logic could find that Flast was not satisfied.
57

Justice Scalia attributes the courts inconsistency in similar Establishment Clause cases to the

fact that the court created two types of injuries for purposes of standing: 1) Wallet Injury, which claims a concrete increase in a plaintiffs tax liability, and 2) Psychic Injury, which is based one a taxpayers mental displeasure. Hein, 551 U.S. at 618-20.
58

Id. at 628. Justice Scalia thinks that the court should take a step back to determine if Flast

should ever have created an exception for taxpayer standing in the first place.
59

Hein, 551 U.S. at 628. While Justice Scalia noted the benefits of judicial minimalism and the

case-by-case approach, he nevertheless felt that Flast did not warrant stare decisis respect precisely because its scope is continuously, incrementally narrowed. 551 U.S. at 636-37.
60

Ariz. Christian Sch., 131 S. Ct. at 1450. Despite the dicta in Hein, Justice Scalia felt that Flast

should be overruled. Hein, 551 U.S. at 637. 11

0947825 exception.61 3. Justice Kagans Dissenting Opinion62 Justice Kagans dissent looked at the practical effect of providing financial support to STOs and admonished the plurality for making an arbitrary distinction between tax credits and expenditures.63 The dissent asserted that the precedent set by the plurality threatens to eliminate all occasions for a taxpayer to contest the governments monetary support of religion because now legislatures can achieve this goal through tax breaks.64 Justice Kagan stated that this was particularly concerning because the courts holding will diminish the force of the Establishment Clause.65 The dissent also disagreed with the pluralitys focus on traditional standing requirements66 because Flast was created as a response to the problem of Establishment Clause violations being insulated from judicial scrutiny.67 Nonetheless, Justice Kagan argued that
61

Ariz. Christian Sch., 131 S. Ct. at 1449-50. In Hein, Justice Scalia admonished the pluralitys

reliance on arbitrary distinctions, and implicitly does the same in his Arizona Christian concurrence. See Fifield, supra note 13, at 1200.
62

Justice Kagan was joined by Justices Ginsburg, Breyer, and Sotomayor. Ariz. Christian Sch., 131 S. Ct. at 1450. Justice Kagan noted that according to the states

63

estimate, the credit program has funneled almost $350 million in tax revenue to STOs. Id.
64

Id. The dissent argued that the plurality has essentially provided legislatures with a roadmap on

how to avoid judicial scrutiny. Id. at 1462.

65

See id. at 1462. Justice Kagan asserted that Flast was created because legislatures have the

ability to affect citizens generally. See id. at 1457.

66

Ariz. Christian Sch., 131 S. Ct. at 1451. See id. at 1459. Justice Kagan noted that the Establishment Clause can be violated even if the 12

67

0947825 taxpayers could even satisfy traditional requirements for standing.68 The dissent ultimately asserted that Flast was created to address unique obstacles to justiciability, and because the plurality broke with that precedent, these Justices dissent.69 III. ANALYSIS A. The Battle Between Separation of Powers Concerns and the Separation of Church and State 1. Can Respect for the Separation of Powers and Standing under Flast Coexist? The Supreme Court has stated that Article IIIs limitation of federal jurisdiction to cases or controversies fundamentally guides the role of the judicial branch within the separation of powers.70 While the term standing is not found anywhere in the Constitution, the court has created this concept as a way to define the perceived limits of this jurisdictional requirement.71 According to the court in Flast, the key issue with regard to taxpayer standing was whether the money does not come from taxpayers who object to the support of religion. See also id. at 1461.
68

Justice Kagan reasoned that taxpayers suffed injury when public funds go to religious

organizations, the state caused this injury by creating the tax credit, and the harm is redressable if an injunction is granted. Id. at 1460, n.10. However, without further explanation of the way in which she defines injury and causation, her assertion reads more like a mechanical exercise than verifiable evidence of traditional standing. See Allen v. Wright, 468 U.S. 737, 751 (1984).
69

Ariz. Christian Sch., 131 S. Ct. at 1462-63. Lauren S. Michaels, Hein v. Freedom from Religion Foundation: Sitting This One Out -

70

Denying Taxpayer Standing to Challenge Faith-Based Funding, 43 HARV. C.R.-C.L. L. REV. 213, 215 (2008) (citations omitted).
71

See Flast, 392 U.S. at 93-99. The court in Flast noted that standing is complex because it

comes from a blend of policy considerations and constitutional limitations. Id. at 98-99. 13

0947825 party could establish an injury in fact, which it defined as a personal stake in the outcome of the controversy.72 The court in Flast, asserted that when the focus is on the party trying to get into court, standing is a more manageable concept and does not implicate separation of powers problems, which arise only from substantive issues [in the claim].73 This same court, however, betrayed its own reasoning later in the opinion by stating that it is appropriate and necessary to look at the substantive issues in order to determine whether a taxpayer can satisfy the two conditions for the exception.74 The Flast court reasoned that a taxpayer has the requisite stake if they feel that certain taxing and spending will violate their right to religious liberty. 75 Yet their dicta has allowed later courts to use standing as a pretext for decisions that implicate the substance of legislative action in order to avoid overruling the precedent established in Flast.76 The Hein
72

Id. at 99. This is where the analysis can become circular because a discussion about what

constitutes an injury for purposes of the case or controversy requirement necessarily implicates the meaning of separation of powers. See William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 233 (1988).
73

Flast, 392 U.S. at 100-101. Here, the Flast court was making the point that for Article III

purposes, standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context. Id.
74

Id. at 102. See also supra Part II.2. The court reasoned that the substantive issue would

determine whether there was a logical relationship between the status (taxpayer) and the claim (spending) to establish the necessary stake. Id.
75

Id. at 103-04. Justice Kagan points out that the holding of Flast is straightforward and does not turn on the

76

type of taxing and spending, but rather on the furtherance of religion. She properly notes that the 14

0947825 plurality, for example, was able to base their decision on a fabricated distinction between congressional and executive expenditures.77 The Arizona Christian plurality similarly narrowed the holding of Flast based on the alleged difference between expenditures and appropriations.78 This type of self-serving judicial minimalism makes it impossible for separation of powers to coexist with taxpayer standing under Flast because the court must step into the shoes of legislatures in order to protect precedent.79 2. Should an Exception for the Establishment Clause Ever Have Been Created? The Flast court created an exception for taxpayers to have standing partly because of the unique nature of the Establishment Clause.80 Furthermore, one member of the Flast court felt that it would not be wise to wait for Congress to create standing for taxpayers to assert violations of the Establishment Clause because personal liberty [would go] unprotected.81 While it appears plurality bases their opinion on three words, extract and spend, which are only dicta in Flast. Ariz. Christian Sch., 131 S. Ct. at 1459.
77

The plurality in Hein felt it would be extending Flasts narrow exception if it did not

distinguish between expenditures made by the Executive Branch and those by the Legislative Branch because Flast spoke of legislative enactments. Hein, 551 U.S. at 615.
78

The plurality in Arizona Christian quoted precedent that alleged the injury in Flast was

understood as the very extraction and spending of tax money in aid of religion. 131 S. Ct. at 1446 (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006), 547 U.S. at 348 (quoting Flast, 392 U.S. at 106)). A discussion about DaimlerChrysler is beyond the scope of this note because taxpayers did not allege infringement of the Establishment Clause.
79

See supra note 64 and accompanying text. See also infra Part III, B. Fletcher, supra note 72, at 267 (citations omitted). Flast, 392 U.S. at 111-12 (Douglas, J., concurring). A discussion of whether it would have 15

80

81

0947825 that the Flast court felt it was necessary to provide a path for judicial protection of the Establishment Clause, modern Justices fear that the court did not pay sufficient respect to the separation of powers.82 Regardless of whether the Flast court was right or wrong in creating an exception for standing, the real problem is that later courts have ignored the unique nature of the right conferred by the Establishment Clause, and instead have focused on the nature of the alleged violation.83 Although Justice Kagans application of Flast in Arizona Christian may appear oversimplified, she correctly asserts that the dispute was presented in an adversary context, and according to Flast, this is enough to satisfy Article IIIs case or controversy requirement.84 Although, Justice Scalia takes the opposite approach and would prefer that Flast be overruled, he too is correct in stating that Article III standing should not turn on whether a benefit is conferred in the form of a check or title to property.85 The fact that two justices with such opposing interpretations of the Constitution can reach

been better for Congress to create a path for taxpayers to assert violations of the Establishment Cause is beyond the scope of this note.
82

In Hein, Justice Alito says Flast did not take separation of powers into account, but Justice

Kennedy concurs to assert that it did. Hein, 551 U.S. at 611 (plurality opinion); id. at 615-16 (Kennedy, J., concurring).
83

See infra Part III, B, 3. Valley Forge Christian Coll. v. Americans United for Separation of

Church & State, Inc., 454 U.S. 464 (1982), Hein, and now Arizona Christian, all base their denial of standing on the nature of the allocation of benefits.
84

Ariz. Christian Sch., 131 S. Ct. at 1451. See also supra note 76. Hein, 551 U.S. at 626. 16

85

0947825 the same conclusion illustrates the reality that remedies often define the scope of the rights.86 From this logic follows the unfortunate conclusion that as the court continues to narrow the remedy created by Flast, it is simultaneously diluting the force of the constitutional right to have a government that is free of religious entanglements.87 Therefore, with the benefit of hindsight, it is clear that the remedy should never have been created. B. The Pluralitys Inadvertent Betrayal of the Separation of Powers Doctrine 1. The Fallacy of Minimalist Reverence for the Separation of Powers Doctrine Then and Now The Hein and Arizona Christian opinions are appropriately categorized as minimalist because they take a fact-specific view 88 and leave central issues undecided.89 Judges use minimalism to avoid setting broad rules or basing decisions on basic principle, which provides room for compromise and allows other judges to get behind a particular outcome even when they disagree on the reasoning.90 Thus, in Hein and Arizona Christian, Justice Scalia and Thomas could agree with the plurality and deny taxpayers standing even though there was disagreement about whether an exception could be made in other instances.91 Another advantage of the effective application of minimalism is that it upholds separation
86

See Taxpayer Standing Establishment Clause Violations, 121 HARV. L. REV. 325, 333 (2007)

(citation omitted).
87

See supra Part II, C, 3. See Fifield, supra note 13, at 1207. See Cass R. Sunstein, Beyond Judicial Minimalism, 43 TULSA L. REV. 825, 825 (2008). Sunstein, supra note 11, at 20. See id. See also Hein, 551 U.S. 587 (2007) (Scalia, J., concurring); Ariz. Christian Sch. Tuition

88

89

90

91

Org., 131 S. Ct. 1436 (2011) (Scalia, J., concurring). 17

0947825 of powers principles.92 Conversely, when the Supreme Court has opted not to use minimalism and has set out strict guidelines for legislatures to follow, such as in Roe v. Wade,93 the democratic process has been suppressed.94 While the Arizona Christian decision is not as controversial as Roe, and although it used a minimalist approach by focusing on only one issue, the practical effect may be very similar to Roe in that it has not only given lower courts a narrow rule to follow, but has provided legislatures seeking to aid the establishment of religion clear guidance on just how to do it.95 The minimalism in Arizona Christian does not assure that legislatures policies are constitutional, rather, it provides a commitment from the plurality that tax laws will be insulated from scrutiny until a one is so offensive as to concretely injure the rights of a particular individual.96 But could the plurality have done anything short of this and yet remain true to the confines of minimalism?97 Can minimalism that declines to overrule precedent refrain from

92

See Sunstein, supra note 11, at 19. See also supra note 12 and accompanying text. 410 U.S. 113 (1973). Sunstein, supra note 11, at 20. Sunstein asserts that the court used Roe to make rules about

93

94

abortion instead of letting states decide and did not give a deep account of the foundations. Id. at 24. Hein and now Arizona Christian similarly lack a cognizable foundation because they rely on cases that were repudiated by Flast. See infra Part III, B, 1.
95

See supra note 15 and accompanying text. Id. Justice Scalia notes that one of the restrictions of minimalism is that it requires honoring stare

96

97

decisis. Hein, 551 U.S. at 636 (Scalia, J., dissenting). Thus, the plurality could not overrule Flast without abandoning minimalism. 18

0947825 contradicting the separation of powers if this approach results in legislation from the bench?98 2. Minimalist Fortification of Precedent and the Inadvertent Betrayal of Separation of Powers Interpretation of the Constitution, and particularly, the Establishment Clause to some extent depends on an active and inventive judiciary.99 However, the judiciary is cognizant of the fact that this requires some restrain, lest it be criticized for legislating from the bench.100 Nonetheless, the Flast court felt it was necessary to actively provide a remedy for the fact that standing requirements often barred citizens from enforcing their right to a government without religious entanglements.101 While this was an admirable undertaking, the problem is that the court has ineffectively used minimalism to back away from the precedent created by Flast.102 One can understand that the Justices must protect the legitimacy of the Supreme Court by

98

If the plurality in Arizona Christian had overruled Flast, they would not have had to make a

decision about whether or not the tax benefit violates the Establishment Clause. Thus, they would have only made a decision about the limitations on their own power without reaching the merits of the legislatures actions.
99

Bruce G. Peabody, Legislating from the Bench: A Definition and A Defense, 11 LEWIS & CLARK

L. REV. 185, 213 (2007).

100

See id. For a defense and interpretation of legislating from the bench, see id. See Fletcher, supra note 72, at 267. See Hein, 551 U.S. at 625-31 (Scalia, J., dissenting). Justice Scalia correctly credits

101

102

minimalism for the fact that the Valley Forge court retreated from the Flast exception, only to have the Bowen court revived it, and then have the Hein court back away from Flast once again. Id. 19

0947825 taking a minimalist approach and not casually overruling precedent.103 In this way, the plurality in Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc. did not want to remove the path to standing created by Flast, but it also chose to abstain from broadening the scope of this narrow exception.104 While this too is an admirable exercise of prudence, the practical effect is that Valley Forge is inconsistent with Flast because this case rejected the idea of Psychic Injury that Flast created an exception for.105 What is worse is that the court in Bowen v. Kendrick revived the Flast exception for taxpayer standing, only to be contradicted by Hein106 and now Arizona Christian.107 Thus, minimalism in the theater of taxpayer standing has backed the court into a corner, making activism exceedingly necessary because the only way to refrain from overruling Flast is to distinguish the substance of the disputed tax law. As Arizona Christian illustrates, standing opinions that turn on substantive

103

See Peabody, supra note 99 at 210-11. Peabody describes this as a weak from of legislating

from the bench. Id. at 209.

104

Valley Forge, 454 U.S. at 486, 489-90 (stating that while the court does not overrule the

exception for noneconomic injury, it is also unwilling to stray too far from the limits of Article III).
105

Hein, 551 U.S. at 626 (Scalia, J., dissenting). Justice Scalia explains that Bowen revived Flast by allowing taxpayer standing based on

106

Psychic Injury, but the Hein court rejects Flast and Bowen by distinguishing one insignificant fact and implicitly rejecting Psychic Injury. Hein, 551 U.S. at 627, 629-30.
107

The plurality in Arizona Christian implicitly rejects the idea of Psychic Injury but refuses to

overrule Flast, opting instead to distinguish one fact just as the court in Hein did. See generally Ariz. Christian Sch., 131 S. Ct. 1436 (plurality opinion). 20

0947825 aspects of legislative decisions continue to inadvertently betray separation of powers principles.108 3. Would Justice Scalias Solution Have Been Better?109 Justice Scalia is a maximalist who oppos[es] self-consciously narrow decisions.110 He disapproves of the fact that the plurality in Hein implicitly rejected Psychic Injury, but did not overrule Flast, which created it.111 Justice Scalia believes that since Psychic Injury can never be concrete and particularized, it cannot satisfy the case or controversy requirement of Article III.112 Thus, for him, the solution is to overrule Flast.113 While Justice Scalia understands that his minimalist contemporaries are hesitant to overrule precedent,114 he correctly explains that the opinion they are protecting was arbitrary in the first place and continues to lead to rulings that are notoriously inconsistent.115 According to
108

See supra note 15 and accompanying text. Justice Scalias concurrence in Hein discusses the inconsistencies in denying or allowing

109

taxpayers to have standing after the exception was created in Flast, and suggests two paths the court can take to become more consistent. See Hein, 551 U.S. 587 (Scalia, J., concurring). See also supra Part II, C, 2.
110

Sunstein, supra note 11, at 15-16. Hein, 551 U.S. at 629-30. Justice Scalia notes that the same happens in Valley Forge and

111

DaimlerChrysler. Hein, 551 U.S. at 626-28.

112

Id. at 629. See also Ariz. Christian Sch., 131 S. Ct at 1450 (Scalia, J., concurring). Id. See also Hein, 551 U.S. at 637 (Scalia, J., concurring). Hein, 551 U.S. at 636 (Scalia, J., concurring) (Overruling precedents . . . is a serious

113

114

undertaking and I understand the impulse to take a minimalist approach.).

115

Id. at 619. 21

0947825 this Justice, the Flast test was designed to differentiate two previous cases that denied standing to taxpayers.116 The denial of taxpayer standing in Doremus v. Board of Ed. of Hawthorne117 was set apart in prong one of the Flast test by requiring that the challenge pertain to a taxing and spending law rather than a regulatory statute or an incidental expenditure.118 Justice Scalia rightly notes that the Flast court never explained why this distinction would make a taxpayers injury more or less concrete.119 Nevertheless, later courts have used this dicta to deny standing to taxpayers by essentially holding that they do not satisfy the first prong of Flast because the governments contested support of religion does not meet the packaging requirements. Justice Scalia reasons that in order to produce more consistent precedent, the court must either overrule Flast or fully embrace Psychic Injury.120 In any case, some Justices need to abandon the minimalist approach that is beating Flast to a pulp and then sending it out to the lower courts ... more incomprehensible than ever.121 Whether the Constitution requires strict interpretation, or an active judiciary, Justice Scalia is correct there is no place for the type of minimalism at work in Hein and now Arizona Christian
116

Id. at 624. Since the second half of the Flast test limits the exception to challenges claiming a

violation of the Establishment Clause, which is satisfied in Arizona Christian, a discussion of the problems with that restriction are beyond the scope of this note.
117

342 U.S. 429 (1952). Analysis of Doremus is beyond the scope of this note because it was

decided before Flast.

118

Hein, 551 U.S. at 624. This is the arbitrary distinction that later courts have latched onto in

order to simultaneously deny standing to taxpayers and leave Flast on the books.
119

Id. See supra Part II, C, 2. See Hein, 551 U.S. at 636. 22

120

121

0947825 IV. CONCLUSION It is so wonderful to be a rational animal, that there is a reason for everything that one does.122 The court has used contradictory reasoning to claim that standing is essential to maintain respect for the separation of powers, then simultaneously claim that an exception to standing is vital to protect the separation of church and state. Now the courts strategic navigation through all of this logic effectively undermines our tripartite system of government and diminishes the force of the Establishment Clause not because of the complexity of these doctrines but because of the courts self-serving minimalism. The more the court claims to take a minimalist approach to the exception for taxpayer standing, the more its opinions amount to legislation from the bench. Perhaps without all of this clever rationalization, the Ninth Circuit, the plurality, and the dissent in Arizona Christian would not have reached such vastly contradictory conclusions.123

122

JEFFREY TOOBIN, THE NINE 98 (2007) (citation omitted). The Ninth Circuit reached the merits, while the plurality declined to find standing under the

123

Flast exception, and the dissent not only would have founding standing under the exception, but also under the traditional requirements. See supra Part II, B, 2; supra Part II, C, 1; supra Part II, B, 3. 23