the separation of church and state vs. the separation of powers: has the complexity of one resulted...

8/3/2019 THE SEPARATION OF CHURCH AND STATE VS. THE SEPARATION OF POWERS: HAS THE COMPLEXITY OF ONE RESULT

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THE SEPARATIONOF CHURCHAND STATEVS. THE SEPARATIONOF POWERS:

HASTHE COMPLEXITYOF ONE RESULTEDINTHE INADVERTENT BETRAYALOFTHE OTHER?

I. INTRODUCTION

The freemen of America did not wait till usurped power had strengthened itself by exercise, andentangled 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.2After 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,4and 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 inAriz. 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).

3Id.

4Id.

5See, e.g., Flast v. Cohen, 392 U.S. 83, 103 (1968).

6SeeAriz. Christian Sch., 131 S. Ct. at 1450(Kagan, J., dissenting) (noting that Arizona has


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Madisonian-minded plaintiffs inArizona 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.8Conversely, 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 principles

11

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.

8See Ariz. Christian Sch., 131 S. Ct. at 1450 (Kagan, J., dissenting).

9 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).

10See generallyAriz. Christian Sch., 131 S. Ct. 1436 (plurality opinion).

11 Cass R. Sunstein,Forward: Leaving Things Undecided, 110 HARV. L. REV. 4, 17, 19 (1996).

She notes that minimalist opinions create room for other branches of the government to bend

according to the demands imposed by democracy.

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clarify their laws in adherence to the Constitution.12 Despite an attempt at minimalism, the

plurality opinion inArizona 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,15and 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

12Cf. 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.

13See 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).

14See 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.

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introduction. Part II will give background onArizona Christian, the Ninth Circuits holding, and

the various Supreme Court opinions. Part III will consider the conflict between the Separation of

Powers Doctrine and theFlastv. 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 inKotterman 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.

19See generally Id. at 1007.

20Id.

21Id. at 1005.

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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.27Petitioners argue that

taxpayers do not meet the requirements of standing and fail to state a claim under the

22See Ariz. Christian Sch., 131 S. Ct. at 1449.

23Id. at 1440.

24See ARIZ. REV. STAT. ANN. 43-1502 (2010). See also Brief for Respondents Kathleen M.

Winn, et al. at 3-4, Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011) (No. 09-

987, 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.

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

(STOs use these contributions to provide scholarships to students attending private schools,

many of which are religious.).

27 U.S. CONST. amend. I.

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Establishment Clause.28

A plaintiff must establish standing in order to comply with the case or controversy

requirement of Article III.2930As 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 byFlast.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.

29 U.S. CONST. art. III 2, cl. 1.

30 131 S. Ct. at 1442. To meet the minimum requirements for standing, a plaintiff must show that

they have suffered an injury in fact, that was caused by the conduct complained of, and is

redressable by a favorable outcome.Id.

31Id. at 1442-43. Plaintiffs cannot satisfy the particularized injury requirement because their

interest as a taxpayer is too indefinite. Id.

32Id. at 1445. See alsosupra note 5.

33Flast, 392 U.S. at 102 (giving the example that an incidental expenditure in a regulatory statute

will not pass this part of the test).

34Id. at 102-03 (stating that the taxpayer must show that the law exceeds a specific congressional

power such as taxing and spending).

35SeeWinn, 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.

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length, the Supreme Court held that taxpayers did not meet theFlastrequirements, 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.38This 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 underFlastto 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

36See generallyAriz. Christian Sch., 131 S. Ct. 1436 (plurality opinion).

37 562 F.3d 1002. Circuit Judge Raymond C. Fisher wrote the opinion for the three-judge panel

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).

38Winn, 562 F.3d at 1009.

39Id. The court also quotes Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756

(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.

40See id. at 1010-11. The court also cites toBowen 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.

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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.42Next, the court concluded that the second half of

theZelman 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

41Id. at 1012-13.

42Id. at 1011-12. The court notes that it is reluctant to assume that the state had an

unconstitutional motive, but holds that there is enough in the claim for summary judgment

purposes.Id.

43Id. 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.

44Winn, 562 F.3d at 1023.

45Ariz. Christian Sch., 131 S. Ct. at 1440 (plurality opinion). Justice Kennedy was joined by

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exception to taxpayer standing created byFlast.46Three 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 byFlast, 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.

46See id.

47 One can infer that Chief Justice Roberts and Alito shared Justice Kennedys concern because

they fully joined his opinion. See id.

48Id. at 1441. Justice Kennedy also noted that it is important to resolve cases incrementally. Id.

49Id. at 1442. Justice Kennedy also explained that if the court decides questions that arise outside

of the Art. III limits, the result would obstruct the Constitutions democratic character.Ariz.

Christian Sch., 131 S. Ct. at 1442.

50Id. at 1442-45. UnderFrothingham 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.

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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.52Thus, the plurality overruled the

Ninth Circuit and held that taxpayers did not fall under the narrowFlastexception for taxpayer

standing.53 Justice Kennedy declined, however, to completely overruleFlast.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 applyingFlast.

56

However, he also made reference to the51Id. at 1446. The dissent is especially critical of this reasoning. See infra note 67 and

accompanying text.

52Id. at 1447. Justice Kennedy stated that this difference was crucial to the finding of an injury in

Flastbased on the history of the Establishment Clause and James Madisons objection to a tax

that would support religion teachers in the 18 th Century.Id. at 1446. See alsosupra Part I.

53Id. 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.

54See 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 inFlastis correct and should not be called into

question.).

55 Joined by Justice Thomas.

56Ariz. Christian Sch., 131 S. Ct. at 1450 (Scalia, J., concurring) (I . . . join the Courts opinion

because it finds respondents lack standing by applyingFlastrather than distinguishing it away on

unprincipled grounds.). Perhaps he thinks that there is no link between the taxpayers status and

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concurrence he wrote inHein v. Freedom From Religion Foundation, Inc., where he reasoned

thatFlastcreated a new type of injury, which he termed Psychic Injury.57 InHein, 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,Flastshould 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 overruleFlast.59 Answering his

own question, Justice Scalias concurrences asserted then and now that Flastcould never be

reconciled with Article III.60 He concluded his concurrence inArizona Christian, by chastising

both the majority and dissent for debating whether or not taxpayers fell within theFlast

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 thatFlastwas 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.

58Id. at 628. Justice Scalia thinks that the court should take a step back to determine ifFlast

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

59Hein, 551 U.S. at 628. While Justice Scalia noted the benefits of judicial minimalism and the

case-by-case approach, he nevertheless felt thatFlastdid not warrantstare decisis respect

precisely because its scope is continuously, incrementally narrowed. 551 U.S. at 636-37.

60Ariz. Christian Sch., 131 S. Ct. at 1450. Despite the dicta inHein, Justice Scalia felt thatFlast

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

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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.63The dissent asserted that the precedent set by the plurality threatens to eliminate

alloccasions 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 becauseFlastwas created as a response to the problem of Establishment Clause

violations being insulated from judicial scrutiny.67Nonetheless, Justice Kagan argued that

61Ariz. Christian Sch., 131 S. Ct. at 1449-50. InHein, Justice Scalia admonished the pluralitys

reliance on arbitrary distinctions, and implicitly does the same in hisArizona Christian

concurrence. See Fifield,supra note 13, at 1200.

62 Justice Kagan was joined by Justices Ginsburg, Breyer, and Sotomayor.

63Ariz. Christian Sch., 131 S. Ct. at 1450. Justice Kagan noted that according to the states

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

64Id. The dissent argued that the plurality has essentially provided legislatures with a roadmap on

how to avoid judicial scrutiny.Id. at 1462.

65See id. at 1462. Justice Kagan asserted thatFlastwas created because legislatures have the

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

66Ariz. Christian Sch., 131 S. Ct. at 1451.

67See id. at 1459. Justice Kagan noted that the Establishment Clause can be violated even if the

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taxpayers could even satisfy traditional requirements for standing.68The dissent ultimately

asserted thatFlastwas 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 inFlast, 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 causedthis 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).

69Ariz. Christian Sch., 131 S. Ct. at 1462-63.

70 Lauren S. Michaels,Hein v. Freedom from Religion Foundation: Sitting This One Out -

Denying Taxpayer Standing to Challenge Faith-Based Funding, 43 HARV. C.R.-C.L. L. REV. 213,

215 (2008) (citations omitted).

71See Flast, 392 U.S. at 93-99. The court inFlastnoted that standing is complex because it

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

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party could establish an injury in fact, which it defined as a personal stake in the outcome of the

controversy.72

The court inFlast, 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.74TheFlastcourt 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 TheHein

72Id. 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).

73Flast, 392 U.S. at 100-101. Here, theFlastcourt 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.

74Id. 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.

75Id. at 103-04.

76 Justice Kagan points out that the holding ofFlastis straightforward and does not turn on the

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

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plurality, for example, was able to base their decision on a fabricated distinction between

congressional and executive expenditures.77 TheArizona Christian plurality similarly narrowed

the holding ofFlastbased 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 underFlastbecause 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?

TheFlastcourt created an exception for taxpayers to have standing partly because of the

unique nature of the Establishment Clause.

80

Furthermore, one member of theFlastcourt 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 inFlast.

Ariz. Christian Sch., 131 S. Ct. at 1459.

77 The plurality inHein felt it would be extendingFlasts narrow exception if it did not

distinguish between expenditures made by the Executive Branch and those by the Legislative

Branch becauseFlastspoke of legislative enactments.Hein, 551 U.S. at 615.

78 The plurality inArizona Christian quoted precedent that alleged the injury inFlastwas

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 aboutDaimlerChrysleris beyond the scope of this note

because taxpayers did not allege infringement of the Establishment Clause.

79See supra note 64 and accompanying text. See also infra Part III, B.

80 Fletcher,supra note 72, at 267 (citations omitted).

81Flast, 392 U.S. at 111-12 (Douglas, J., concurring). A discussion of whether it would have

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that theFlastcourt 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 theFlastcourt 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 ofFlastinArizona Christian may appear

oversimplified, she correctly asserts that the dispute was presented in an adversary context, and

according toFlast, this is enough to satisfy Article IIIs case or controversy requirement.

84

Although, Justice Scalia takes the opposite approach and would prefer thatFlastbe 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 InHein, Justice Alito saysFlastdid 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).

83See 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 nowArizona Christian, all base their

denial of standing on the nature of the allocation of benefits.

84Ariz. Christian Sch., 131 S. Ct. at 1451. See also supra note 76.

85Hein,551 U.S. at 626.

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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 byFlast, 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

TheHein andArizona 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.90Thus, inHein 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

86See Taxpayer Standing Establishment Clause Violations, 121 HARV. L. REV. 325, 333 (2007)

(citation omitted).

87See supra Part II, C, 3.

88See Fifield,supra note 13, at 1207.

89See Cass R. Sunstein,Beyond Judicial Minimalism, 43 TULSA L. REV. 825, 825 (2008).

90 Sunstein,supra note 11, at 20.

91See id. See alsoHein, 551 U.S. 587 (2007) (Scalia, J., concurring);Ariz. Christian Sch. Tuition

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

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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 inRoe v. Wade,93 the

democratic process has been suppressed.94 While theArizona Christian decision is not as

controversial asRoe, and although it used a minimalist approach by focusing on only one issue,

the practical effect may be very similar toRoe 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 inArizona 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?97Can minimalism that declines to overrule precedent refrain from

92See Sunstein,supra note 11, at 19. See alsosupra note 12 and accompanying text.

93 410 U.S. 113 (1973).

94 Sunstein,supra note 11, at 20. Sunstein asserts that the court usedRoe to make rules about

abortion instead of letting states decide and did not give a deep account of the foundations.Id.

at 24.Hein and nowArizona Christian similarly lack a cognizable foundation because they rely

on cases that were repudiated byFlast. See infra Part III, B, 1.

95See supra note 15 and accompanying text.

96Id.

97 Justice Scalia notes that one of the restrictions of minimalism is that it requires honoringstare

decisis.Hein, 551 U.S. at 636 (Scalia, J., dissenting). Thus, the plurality could not overrule

Flastwithout abandoning minimalism.

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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, theFlastcourt 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 byFlast.102

One can understand that the Justices must protect the legitimacy of the Supreme Court by

98 If the plurality inArizona Christian had overruledFlast, 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).

100See id. For a defense and interpretation of legislating from the bench, see id.

101See Fletcher,supra note 72, at 267.

102See Hein, 551 U.S. at 625-31 (Scalia, J., dissenting). Justice Scalia correctly credits

minimalism for the fact that the Valley Forge court retreated from theFlastexception, only to

have theBowen court revived it, and then have theHein court back away fromFlastonce again.

Id.

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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 byFlast, 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 withFlastbecause this case

rejected the idea of Psychic Injury thatFlastcreated an exception for.105 What is worse is that the

court inBowen v. Kendrickrevived theFlastexception for taxpayer standing, only to be

contradicted byHein106and nowArizona 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 overrulingFlastis to distinguish the substance of the

disputed tax law. AsArizona Christian illustrates, standing opinions that turn on substantive

103See Peabody,supra note 99 at 210-11. Peabody describes this as a weak from of legislating

from the bench.Id. at 209.

104Valley 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).

105Hein, 551 U.S. at 626 (Scalia, J., dissenting).

106 Justice Scalia explains thatBowen revivedFlastby allowing taxpayer standing based on

Psychic Injury, but theHein court rejectsFlastandBowen by distinguishing one insignificant

fact and implicitly rejecting Psychic Injury.Hein, 551 U.S. at 627, 629-30.

107 The plurality inArizona Christian implicitly rejects the idea of Psychic Injury but refuses to

overruleFlast, opting instead to distinguish one fact just as the court inHein did. See generally

Ariz. Christian Sch., 131 S. Ct. 1436 (plurality opinion).

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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 inHein implicitly rejected Psychic Injury, but did

not overruleFlast, which created it.111Justice 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 overruleFlast.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.115According to

108See supra note 15 and accompanying text.

109 Justice Scalias concurrence inHein discusses the inconsistencies in denying or allowing

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.

111Hein, 551 U.S. at 629-30. Justice Scalia notes that the same happens in Valley Forge and

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

112Id. at 629. See alsoAriz. Christian Sch., 131 S. Ct at 1450 (Scalia, J., concurring).

113Id.See alsoHein, 551 U.S. at 637 (Scalia, J., concurring).

114Hein, 551 U.S. at 636 (Scalia, J., concurring) (Overruling precedents . . . is a serious

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

115Id. at 619.

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this Justice, theFlasttest was designed to differentiate two previous cases that denied standing to

taxpayers.116 The denial of taxpayer standing inDoremus v. Board of Ed. of Hawthorne117was set

apart in prong one of theFlasttest 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 theFlastcourt 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

ofFlastbecause 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 overruleFlastor fully embrace Psychic Injury.120 In any case, some Justices need to

abandon the minimalist approach that is beatingFlastto 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 inHein and nowArizona Christian

116Id. at 624. Since the second half of theFlasttest limits the exception to challenges claiming a

violation of the Establishment Clause, which is satisfied inArizona Christian, a discussion of the

problems with that restriction are beyond the scope of this note.

117 342 U.S. 429 (1952). Analysis ofDoremus is beyond the scope of this note because it was

decided beforeFlast.

118Hein, 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 leaveFlaston the books.

119Id.

120See supra Part II, C, 2.

121See Hein, 551 U.S. at 636.

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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 inArizona Christian would not have reached such vastly contradictory conclusions.123

122 JEFFREY TOOBIN, THE NINE 98 (2007) (citation omitted).

123 The Ninth Circuit reached the merits, while the plurality declined to find standing under the

Flastexception, 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.

the separation of church and state vs. the separation of powers: has the complexity of one resulted...

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