One of the Supreme Court’s disturbing 5-4 decisions last term — Hein v. Freedom From Religion Foundation — is already coming home to roost in the lower courts. On October 30, 2007, relying on Justice Alito’s purality decision in Hein, a sharply divided three-judge panel of the 7th Circuit ruled, 2-1, in Hinrichs v. Bosma that taxpayers in Indiana do not have standing to challenge the practice of the state House of Representatives of opening its sessions with a sectarian (typically Christian) prayer.
The ruling overturned a decision of the district court that the sectarian prayer practice was unconstitutional. The 7th Circuit majority held that taxpayers do not have standing to challenge the prayer practice, even though taxpayer funds are spent in connection with it, because the legislature does not specifically appropriate funds for that practice. As the dissent pointed out, however, the legislature has ratified the practice through its budget as well as through passage of a House Rule specifically calling for the prayer.
In its decision last term in Hein, the Supreme Court ruled, 5-4, that federal taxpayers lacked standing to bring an Establishment Clause challenge to President Bush’s expenditure of funds for his “Faith-Based and Community Initiatives Program” as unconstitutionally promoting religion. In a plurality opinion by Justice Alito joined by Chief Justice Roberts and Justice Kennedy, the three justices expressed the view that federal taxpayers do not have standing to challenge expenditures by the executive unless they are expressly mandated by a specific congressional enactment. Justices Scalia and Thomas would have gone even further and overturned taxpayer standing in Establishment Clause cases entirely. People For the American Way Foundation had filed an amicus curiae brief in Hein urging the Court to find taxpayer standing, and not undermine the ability of Americans to vindicate their constitutional rights when government tramples on the Establishment Clause.
Unfortunately, the Supreme Court’s ruling in Hein has now resulted in a further closing of the courthouse doors to Americans seeking justice. The 7th Circuit majority in Bosma did not reach the merits of the plaintiffs’ claims that sectarian legislative prayer is impermissible (under Supreme Court precedent, it is not), but instead has barred those plaintiffs from having their day in court.
The Bosma decision was written by Judge Kenneth Ripple, a Reagan appointee, and joined by Judge Michael Kanne, another Reagan appointeed. Judge Diane Wood, a Clinton appointee, dissented.