ACLJ Asks Supreme Court to Reject Taxpayer Standing in Church-State Case

By: Legal - Law News

The American Center for Law and Justice (ACLJ), which specializes in constitutional law, today filed an amicus brief with the Supreme Court of the United States urging the Court to take the case of University of Notre Dame v. Laskowski (U.S. No. 06-582). 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 Notre Dame case, separationist taxpayers challenged a federal teacher training program involving a grant to Notre Dame, a Catholic university. When the grant expired, the district court dismissed the case as moot. But a federal appeals court reinstated the suit, ruling that the separationists could try to force Notre Dame to pay back to the federal government any funding that the separationists could successfully challenge. Notre Dame then asked the Supreme Court to hear the case.

In its friend-of-the-court brief in support of Notre Dame, the ACLJ points out that even if the separationists could identify a constitutional violation, and even if Notre Dame were then forced to repay the grant to the federal government, none of this would benefit the separationists in any way. Therefore, the ACLJ contends, the separationists lack “standing” – the ability to sue – to seek such a repayment.

The ACLJ brief goes on to point 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 Supreme Court will likely decide in the next month or two whether to hear the Notre Dame case. If the Court accepts the case for review, it may hear and decide the case by the end of next June.

Led by Chief Counsel Jay Sekulow, the American Center for Law and Justice specializes in constitutional law and focuses on religious liberty litigation.

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The ACLJ is based in Washington, D.C. and is online at www.aclj.org.

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