Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007), was a decision by the United States Supreme Court which ruled that taxpayers do not have the right to challenge the constitutionality of expenditures by the executive branch of the government.

[2] The case centered on three Supreme Court precedents: Flast v. Cohen,[3] Bowen v. Kendrick,[4] and Valley Forge Christian College v. Americans United for Separation of Church & State.

"[6] The Foundation and its members complaint was over "the use of money appropriated by Congress under Article I, section 8, to fund conferences that various executive branch agencies hold to promote President Bush’s 'Faith-Based and Community Initiatives.

'"[6] They also alleged that "the defendant officials 'engage in myriad activities, such as making public appearances and giving speeches, throughout the United States, intended to promote and advocate for funding for faith-based organizations.

This was over a keynote speech at a White House Conference on Faith-Based and Community Initiatives in October 2002 where Paige said "With the stroke of a pen, the President signaled that this Administration will knock down any barrier, will do whatever it takes to get people of faith and goodwill involved in helping solve some of the problems in our society today.

[6] The Foundation also voluntarily dismissed several "claims that the heads of certain federal agencies had violated the Establishment Clause by 'directly and preferentially fund[ing]' particular programs that allegedly 'integrate religion as a substantive and integral component' of their activities.

"[11] The court dismissed the government's position that there could be no standing because the plaintiffs had not shown that their taxes were increased because general Congressional appropriations to the Executive branch were used to support the activities of the directors.

They held that producing a proof that would show how many funds the plaintiffs would save if the situation was different was unnecessary in cases like this one as "the tangible harm would often be zero because if the complained-of expenditure was enjoined, the money would probably be used to defray some other public expense that would not benefit the taxpayer, rather than returned to him in the form of a lower tax rate.

[17] Two of the judges voting against the rehearing gave their reasoning writing that "the obvious tension which has evolved in this area of jurisprudence ... can only be resolved by the Supreme Court ... [and] the needed consideration of this important issue by that tribunal would be unnecessarily delayed by our further deliberation.

'"[6] On a similar note they cited Frothingham v. Mellon, 262 U.S. 447, 487 (1923) that "a federal taxpayer’s interest in the moneys of the treasury 'is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.

"[6] In further support of their position that Flast was limited to acts of Congress the government also cited decisions of Appeals Court of the Second Circuit, namely In re United States Catholic Conference, 885 F.2d 1020 (1989), cert.

"[22] They held that the government was urging the Court to accept the idea of distinction because of "a belief that the executive branch should be able to use Congressional tax appropriations without accountability under the Establishment Clause.

"[22] They argued that the Seventh Circuit Court's decision granting standing should be upheld for "to hold otherwise would countenance a distinction without a meaning – and insulate a substantial part of federal spending of taxpayer appropriations from any obligation to comply with the Establishment Clause.

The court concluded that the plaintiffs had standing as taxpayers to challenge the government expenditures, made pursuant to Congress’ Taxing and Spending power, as violative of the Establishment Clause.

Solicitor General Paul D. Clement told the Court that he believed that even if the program had been set up by Congress instead of by an Executive Order there would still not be any standing for a taxpayer to sue, "Because there has to be two things.

"[23] When Justice Stephen Breyer asked if "Congress passes a law and it says it's a very nice thing to commemorate the Pilgrims by building a Government church at Plymouth Rock, where we will have the regular worship in the Puritan religion.

Both Justices Roberts and Scalia expressed concern that if they found for the Foundation it would mean the courts would have to continually decide if taxpayers had standing by trying to determine "whether the expenditure was incidental or not".

"[33] Justice Scalia wrote a concurrence (which was joined by Justice Clarence Thomas), where he agreed that the case had to be reversed but held that the Court had not gone far enough, "If this Court is to decide cases by rule of law rather than show of hands, we must surrender to logic and choose sides: Either Flast v. Cohen, 392 U.S. 83 (1968), should be applied to (at a minimum) all challenges to the governmental expenditure of general tax revenues in a manner alleged to violate a constitutional provision specifically limiting the taxing and spending power, or Flast should be repudiated.

"[37] Souter continued, "We held in Flast, and repeated just last Term, that the "'injury' alleged in Establishment Clause challenges to federal spending" is "the very 'extract[ion] and spen[ding]' of 'tax money' in aid of religion.

"[40] In response to Scalia's concurrence, Souter invoked Madison's work (see above) and wrote "The three pence implicates the conscience, and the injury from Government expenditures on religion is not accurately classified with the 'Psychic Injury' that results whenever a congressional appropriation or executive expenditure raises hackles of disagreement with the policy supported ... Justice Stewart recognized this in his concurring opinion in Flast, when he said that "every taxpayer can claim a personal constitutional right not to be taxed for the support of a religious institution,” and thus distinguished the case from one in which a taxpayer sought only to air a generalized grievance in federal court.

"[41] Souter went over the qualifications for standing set by previous precedents, and concluded that they were all met in this case, "there is no dispute that taxpayer money in identifiable amounts is funding conferences, and these are alleged to have the purpose of promoting religion.

'"[46] As a proof of this he asked, what of cases where a person was "being forced to compete on an uneven playing field based on race (without showing that an economic loss resulted), or living in a racially gerrymandered electoral district?

of Ewing, 330 U.S. 1, 11 (1947), and the realization continuing to the modern day that favoritism for religion 'sends the ... message to ... nonadherents "that they are outsiders, not full members of the political community,"'" McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844, 860 (2005).

"[48] The Justice also agreed that the outcome of Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.[5] was based on the Property Clause of Article IV, §3 and so was not a viable precedent in this case.

[49] Souter noted that the majority expressed their fear that a great many Executive branch actions would be open to lawsuit if they ruled for the Foundation, he said "that does not mean taxpayers will prevail in such suits.

"[50] President George W. Bush expressed his pleasure at the majority's ruling, saying "Today's Supreme Court decision marks a substantial victory for efforts by Americans to more effectively aid our neighbors in need of help.

"[51][52][53] Former Head of the White House Office of Faith-Based and Community Initiatives Jim Towey called the decision "good news for addicts and the homeless and others seeking effective social services.

"[53] Jay Sekulow of the American Center for Law and Justice said of the decision "This is a very significant victory that sends a powerful message that atheists and others antagonistic to religion do not get an automatic free pass to bring Establishment Clause lawsuits.

...This decision will have serious ramifications for separationist attempts to claim special privileges to sue as taxpayers without showing that a law or government activity actually injured them in any way.

...By rejecting a claim to special treatment for atheists and other separationists, the high court took an important step toward restoring equity to the legal system with respect to federal challenges in the Establishment Clause arena."