The U.S. Supreme Court has issued decisions in both of its religious freedom cases this term. But just because we didn’t have to wait until June does not mean the Court did us any favors. The BJC filed briefs in both cases, and the decisions were disappointments. They illustrate the difference between valuing religious liberty in theory and actually protecting that liberty in practice.

Sossamon v. Texas is a statutory interpretation case where the Court adopted a narrow reading of the remedies available when a state violates a prisoner’s rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA). The Court made it more difficult to enforce a law that was carefully designed to provide strong religious exercise rights for institutionalized persons.

RLUIPA was passed with broad support and a congressional record demonstrating that state institutions sometimes restrict religious liberty in arbitrary and egregious ways. Indeed, the majority in Sossamon noted that the plain language and meaning of RLUIPA’s substantive provisions provides heightened protection to religious exercise. Congress made clear that the statute should be read to provide “broad protection of religious exercise.”

Unfortunately, the Court undercut this protection by holding that the statute’s provision of “appropriate relief” could not be read to include money damages. As Associate Justice Sonia Sotomayor noted in dissent, “It is difficult to believe that Congress would have devoted such care and effort to establishing significant statutory protections for religious exercise and specifically extended those protections to persons in state institutions, yet withheld from plaintiffs a crucial tool for securing the rights the statute grants.” After Sossamon, prisoners may still sue state defendants for burdening their religious exercise, but plaintiffs are “forced to seek enforcement of those rights with one hand tied behind their backs.”

Even worse than the Court’s narrowing of RLUIPA’s enforcement provisions is its obliteration of taxpayer standing in Arizona Christian School Tuition Organization v. Winn, et al. In Winn, the question was not about how to correct a constitutional violation but about whether the plaintiffs could even get into court (known as “standing to sue”) to challenge a law alleged to provide taxpayer support to religion in violation of the Establishment Clause.

In a 5-4 decision, the Court ruled that the plaintiffs do not have standing because they challenged a tax credit as opposed to a tax “extracted” from citizens. The Arizona program at issue in Winn allows any individual to direct up to $500 of his or her state income tax bill to a state tuition organization, which then provides private school scholarships. Plaintiffs alleged that the program operates unconstitutionally, primarily because many of the participating tuition organizations award scholarships only to religious schools.

The majority’s opinion, written by Associate Justice Anthony Kennedy, focuses on the mechanism Arizona used for the alleged establishment of religion and, in essence, leaves the doctrine of taxpayer standing hanging by a thread. The Court held that the taxpayer plaintiffs did not have standing under Flast v. Cohen (1968), the case that established the narrow and necessary exception to the general rule against taxpayer standing. The rule in Flast recognizes taxpayer standing when the government uses its taxing and spending power in violation of the Establishment Clause. In Winn, however, the Court denied standing because the Arizona program did not extract a tax.

In Hein v. Freedom from Religion Foundation (2007), a case that challenged aspects of the Bush administration’s Office of Faith-based and Community Initiatives, the Court denied taxpayer standing to challenge executive branch expenditures. Winn has now effectively eliminated the doctrine of taxpayer standing. A state legislature can avoid a constitutional challenge simply by using tax credits instead of a direct appropriation.

Associate Justice Elena Kagan, writing her first dissent since joining the Court, sharply criticized the Court’s decision. She said, “This novel distinction in standing law between appropriations and tax expenditures has as little basis in principle as it has in our precedent. ... Taxpayers who oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other.” 

As the four dissenting justices recognized, the decision is at odds with a long line of Establishment Clause cases brought by taxpayers to challenge government subsidization of religion, and the consequences are serious. The demise of taxpayer standing necessarily diminishes the strength of the Establishment Clause to protect religious freedom for all.