Marshall & Nichol on Standing and the Establishment Clause

William P. Marshall (University of North Carolina School of Law) and Gene R. Nichol Jr. (University of North Carolina School of Law) have posted Not a Winn-Win: Misconstruing Standing and the Establishment Clause. The abstract follows.

In Arizona Christian School Tuition Organization v. Winn, the Supreme Court, in a 5-4 decision, held that state taxpayers did not have standing under the Establishment Clause to challenge a state tax program in which taxpayers were given dollar-for-dollar tax credits for their contributions to private, non-profit state tuition organizations (STOs) that had been set up specifically to accept these contributions and then use the donated funds for “scholarships to students attending private schools, including religious schools.” Implicitly rejecting intangible, wisdely-shared, “psychic” harms as a basis for standing, the Winn majority held that though taxpayers might have standing to contest legislative appropriations designed to aid religious enterprises as in Flast v. Cohen, they had no standing to challenge legislative tax credit programs intended for the same purpose because there is no “extract[ion] and spend[ing]” of tax money in aid of religion in the latter program.
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Rahdert on Trends in Taxpayer Standing to Challenge the Establishment Clause

Mark Rahdert (Temple University – James E. Beasley School of Law) has posted Court Reform and Breathing Space Under the Establishment Clause. The abstract follows.  

Flast v. Cohen held that federal taxpayers have standing to challenge government spending for religion. While Frothingham v. Mellon generally prohibits taxpayer standing in federal courts, the Court reasoned that the Establishment Clause specifically prohibits taxation in any amount to fund unconstitutional religious spending. For several decades Flast has been settled law that supplied jurisdiction in many leading establishment cases. But Hein v. Freedom from ReligionFoundation, Inc. and Arizona Christian School Tuition Organization v. Winn signal that Flast may soon be overruled. This jurisdictional ferment raises two questions: Why this sudden shift? And what does it signify for the Establishment Clause?
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