Stone on 'Arizona Christian School Tuition Organization v. Winn'

Eviscerating the Establishment Clause
Geoffrey R. Stone
The Huffington Post
April 6, 2011

In a decision earlier this week in Arizona Christian School Tuition Organization v. Winn, the five conservative Justices on the Supreme Court (Roberts, Scalia, Kennedy, Thomas and Alito) carved a large hole out of the Establishment Clause of the First Amendment. Although the issue in the case was subtle, the consequences are not.

The First Amendment prohibits government to make any law "respecting an establishment of religion." A central concern of the Establishment Clause, in the words of James Madison, was to forbid government "to force a citizen to contribute" even "three pence of his property for the support of" religion. As the Supreme Court recognized more than forty years ago, as a general proposition the Establishment Clause prohibits government from using its "taxing and spending power... to favor one religion over another or to support religion in general." Thus, the Establishment Clause forbids government to fund churches to enable them to spread their religious beliefs or to award special tax credits to individuals to reimburse them for their contributions to religious organizations.

There is a complication, however. Even though such government programs violate the Establishment Clause, it is not clear whether anyone can legally challenge them. To bring a lawsuit contesting a law's constitutionality, a plaintiff must have "standing" to sue. To have standing, a plaintiff must have suffered a distinct "injury in fact" as a result of the government action he wants to challenge. Standing is necessary because we want the parties to have a meaningful stake in the outcome of litigation. Otherwise, they might not adequately represent their position, which could result in a waste of judicial resources or, even worse, erroneous decisions.

Geoffrey R. Stone