ACLJ Urges Supreme Court to Help End Frivolous Federal Lawsuits that Attack Religion

"For years, atheists and others who are antagonistic to religion have had special privileges in federal court." —Jay Sekulow, chief counsel, ACLJ

WASHINGTON, Jan. 4, 2007—One of the nation's leading defenders of religious liberties is asking the Supreme Court of the United States to end special privileges that allow people to attack religion with federal lawsuits by simply proving they are taxpayers.

The American Center for Law and Justice (ACLJ) filed an amicus brief on Tuesday urging the high court to put an end to federal taxpayer suits by church-state separationists. In the case of Hein v. Freedom from Religion Foundation (U.S. No. 06-157), the ACLJ is asking the Court to make church-state separationists follow the same rules applied to everyone else.

"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," said Jay Sekulow, chief counsel of the ACLJ.  "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 Hein case, separationist taxpayers challenged a federal faith-based initiatives program. The federal district court in Wisconsin dismissed the case, ruling that taxpayers had no "standing" (capacity to sue) because there was no federal grant at issue. But a federal appeals court reinstated the suit ruling that the separationists had standing to challenge the use of federal funds to run the faith-based program. The federal government then petitioned the Supreme Court, which agreed to hear the case.

In its friend-of-the-court brief in support of the federal government, the ACLJ points out that no federal taxpayer suits are allowed in any other context aside from Establishment Clause suits challenging federal spending. According to the ACLJ, that exception rests on the 1968 decision of Flast v. Cohen.

"This Court has, in the years since Flast, knocked out every single rationale underpinning that decision," argues the ACLJ in its brief. "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."

According to Sekulow, "the Flast precedent has created a lot of mischief because it empowered every disgruntled atheist to make a federal case out of any hint of religion in a government action. It's time the Supreme Court took another look at whether taxpayer suits under the Establishment Clause make sense under the Constitution."

The Supreme Court will hear oral arguments in the Hein case on Feb. 28 and will likely decide the case by the end of June.

Led by Chief Counsel Jay Sekulow, the American Center for Law and Justice specializes in constitutional law and focuses on religious liberty litigation. The ACLJ is based in Washington, D.C. and is online at www.aclj.org.

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