U.S. Supreme Court

Taxpayer Standing Partly Survives


Two conservative justices did not succeed in getting the Supreme Court to overrule a 1968 precedent regarding taxpayer standing.

The old case, Flast v. Cohen, allowed taxpayers to challenge spending on programs that promote religion. The case was an exception to the general rule barring taxpayer standing.

Justice Antonin Scalia protested in a dissent yesterday that Flast is an “an inkblot on our jurisprudence,” Linda Greenhouse writes for the New York Times. Scalia was joined by Justice Clarence Thomas.

“If this court is to decide cases by rule of law rather than show of hands, we must surrender to logic and choose sides,” Scalia wrote.

Instead the court decided the case on narrower grounds. The controlling opinion by three justices said Flast did not apply in a taxpayer challenge to an executive branch program promoting funding for faith-based initiatives.

Flast only permits standing to challenge religion programs explicitly financed by Congress, the opinion by Justice Samuel A. Alito Jr. said.

Groups supporting the separation of church and state said that most lawsuits can proceed under the decision because they challenge legislative funding, the Washington Post reports.

The ruling is Hein v. Freedom from Religion Foundation, No. 06–157 (PDF).

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