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March 14, 2007


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Rick Garnett

Cass, you suggest that the Establishment Clause exception to the "no taxpayer standing" rule follows clearly from the fact that "the Constitution bans the establishment of a religion by government", because "a major point of this ban is to ensure that the power to tax and spend would not be used to favor one religion over another or to support religion in general." I'm not so sure.

Let's put aside questions about whether it was (or should today be) a "major point" of the Establishment Clause to prevent public expenditures that "support religion in general." It's still not clear to me why one couldn't make (pretty much) your argument with respect to other constitutional provisions or structural features. That is, if we need taxpayer standing to vindicate the "point" of the Establishment Clause, then why don't we need it to vindicate the "point" of, say, "the separation of powers" or "the enumerated-powers principle"? Is it because we suspect that a violation of the latter "principle" will, at some point, create an obvious. Lujan-type case-or-controversy, but some spending-related violations of the Establishment Clause might not (other than the injury allegedly done to the conscience of one who objects to the spending decision)?

Joan A. Conway

Disparate treatment is the obvious consideration under the current tying of favors with other bills. Discrimination requires Standing, and substantive due process and procedural due process matters in separation of powers, and enumerated-powers principle address the integrity of the authority addressing the issue. Just an out-of-the-box quess for now? Be back!


This is certainly a fascinating legal problem, and I would like to ask about another gray area. How can we draw a distinction between direct government expenditure and indirect government expenditure? As Mr. Sunstein notes, the Court has already established that some indirect expenditures are just as susceptible to challenge as direct expenditures. But could not the use of any government employee's time constitute an indirect expenditure?

If so, the ramifications are immense. A taxpayer could have sued the Reagan Administration for its use of government employees to orchestrate the Iran-Contra affair, because the government was spending taxpayer money on the salaries of government employees to carry out actions not approved by any law.

I missing something obvious?

Frederick Hamilton

The real elephant in the room nobody will discuss is the tax status enjoyed by religioous groups and churches. Those that argue seperation of church and state don't seem to mind the fact that churches are given exemption from tax obligations. Just as goverments are exempt from tax obligations, so are churches. Ergo, religion and government are seperate, they are equals. How constitutionally can churches and religion be given preferrential tax treatment?

Frederick Hamilton

Sorry, I meant religion and government are NOT seperate.


churches and temples are not given tax-exempt status because they're churches and temples. they're given tax-exempt status if they're not for profit entities that follow the rules governing non profit entities. any not for profit entity taht follows the rules is given tax-exempt status. so there's no elephant in the room.


I'm confused. What are the alternatives? Who else other than a taxpayer could have standing to challenge money being given to a sectarian org?

Maybe I'll make a career out of coming up with ridiculous, nonsensical relgious beliefs, perhaps the religion of the ivisible blue cats in the trees that control the universe, and then demand equal access to public funds to spruce up our trees in public parks in the name of the invisible blue cat gods.

It is instensely depressing that even U of C professors believe in 2000 year old cults and then argue it doesn't violate the establishment clause for the Gov to fund these sectarian organizations who deftly hide their cult outreach in social welfare. How about we call a spade a spade and recognize that giving money to sectarian organization is a piss poor substitute for our failure as a democracy to guarantee basic human dignity to our least well off citizens.

Privavtized social welfare is a joke and an excuse for a failure of our democracy to treat all citizens like human beings. But I digress.

What are the alternative to taxpayer standing? If not me who? If not now when?


The irony is that in many ways it is this bandaid over the gaping wound approach that appeases the 80% of our country and keeps meaningful substantive social welfare from happening. Who needs labor law and minimum wage increases when you have church sponsored foodbanks! Who needs adequate housing regulation when you have shelters run by Jesus freaks. Ugh, I hate institutional organized relgion, and disingenuous republicans, but again, I digress. This is a standing issue. Save me Jebus.


I agree, Mr. LAK, that the emphasis on taxpayer status seems a bit odd. After all, what citizen does not pay some taxes to the Federal government? And if one must be a taxpayer to have standing, then presumably one must file one's tax return for the year in which the challenged act took place. Seems rather odd.

I am sorry to advise you that your invisible blue cat god is a johnny-come-lately. He was beaten to the punch by the Flying Spaghetti Monster, whose worshippers are known as Pastafarians. You can find a good explanation of the theology of FSM at:

along with links to many additional sources, including a place to get T-shirts -- the definitive criterion of religious success.


Genius. Doesn't surprise me that he was a physics major. Maybe it is a physics deficiency that makes people beleiev in ghost stories. Now rather than use it just to challenge teaching creationism, he should use the flying spaghetti Monstor to invoke his free exercise rights. He should go smoke pot at the Lincoln memorial and claim it is a long standing practice of the relgion.

It is so completely bizzare to me that we treat irrational institutional cult beliefs as deserving special constitutonal protection, as if it is still the late 1700s, and religion still definied bright lines between groups of people, everyone was reliious for lack of any meaningful understanding of our existental situation, and electricity hadn't yet been harnessed and the atomic nucleus split. I guess it just goes to show how social instituion (and the need to please daddy) trump our individality and reason every time, even if you are smart enough to be a U of C professor.

What is the case where they define what "Religion" worthy of con protections is? What is the definition again? It's been a while.

The whole concept of what qualifies as legitimate religion baffles me. Save me Jebus. Or at least protect me from the government and allow me to transsubstantiate pot into your body. Cause then I won't be breaking the law, I'll be freely exercising my relgious beliefs.

But seriously, if not a taxpayer, who would be the proper plaintiff to challenge goverement funded religious enterprise?

Frederick Hamilton

I suprisingly agree with you but without the disdain for religous belief. I find the favorable tax status for religous entities because they are "non-profit" a scam. All "non-profits" are a scam. I practice at a public non-profit hospital that had a bottom line excess of millions, "non-profit". Sitting in the bank are tens of millions of non-profit dollars. I get it. If you register yourself a non-profit and then take the left over monies after expenses and stick some in some peoples pockets put the rest in the bank, gradually dole it out in increased salaries to the head honchos everything is OK. And yes use some of the extra money to improve the care at the hospital by buying a multi-million dollar piece of equipment that allows you to make more non-profit dollars. Especially if you are doing good works like the University of Chicago Hospitals, or the University of Michigan Hospitals, or the Lutheran Church, or the Catholic University of Notre Dame, or Habitat for Humanity, ad nauseum.

In that context, what is the difference between Habitat for Humanity and the Salvation Army Shelters (religous)? If individuals can deduct from their taxable income money given to either Habitat for Humanity or the Catholic Church Resuce Mission again isn't the favorable tax treatment of religion a violation of seperation of church and state? So religion gets huge benefits from government because they are "non-profit" and not because they are a religous organization. I just think it is a big crock and all entities that engage in economic activity should pay taxes. Red Cross, Catholic Church, State of Illinois Government, City of Chicago, University of Chicago Hospital, University of Michigan Hospital, et al.

And the non-profits aren't just churches and hospitals. There are millions of "non-profits" avoiding taxation in any number of ways.

I look at non-profits as seperate part of the economy akin to the underground economy, simply one blessed by government. Not that they can't make a hell of a lot of money. Ergo three economies in America. Regular. Underground (also non profit). And legal aboveground registered "non-profits". Lets here it for the Pastafarians and the Kiwanis.

Seriously, how much value is in the land and buildings of non-profits throughout the United States? Trillions. Purchased with tax free dollars. And once owned, not subject to any taxation. Pretty sweet. For one, now that March is here. Look at the NCAA. In fact Congress is supposed to be looking at their practices. Billions of dollars from the basketball and football seasons. To do what? What justifies their non-profit status? What do they do for the poor? How many new homes for the poor have they built. They have built quite a dictatorial empire but save for that, nada.

What we really need are non-profit car companies, home builders and grocery stores so we can get transportation, shelter and food at discounted non-taxed pricing.

Dinner at the Catholic Church supper...$6 At the local restaurant....$15

LAK you better get your butt at the church and Kiwanis dinner tables. You are spending too much.


F, I wouldn't go that far. We just need a better job at distinguishing beween legitimate non-profits who work for the public good and spend the money on their program, and others who abuse the non-profit form for their own gain and power, like certain hospitals and sectarian organizations. Better clearer laws about what are reasonable uses of $ and salaries are needed.

But the question still stands, IF not the taxpayer, then who has standing to challenge a grant of gov $ to sectarian orgs? I'm still confused about alternatives. If they say taxpayers don't have standing, who does have standing to challenge establishment clause violationsin this situation?

Frederick Hamilton

Cerainly congress has standing. But I agree with you. The taxpayer has standing. Wouldn't that fall under the catagory of redress?

Still believe there is a huge problem with non-profits.


And to respond to Rick Garnett, of course there is a difference. There are parties directly harmed by separation of powers issues who have clear standing to sue. And the establishment clause context involves a direct use of taxpayer money where there is an asbsence of someone other than the taxpayer who is harmed in a constitutional sense. Aren't those obvious distinctions? Those harmed by separation of powers are identifiable.

So perhaps you can answer my confusion...

If not the taxpayer in the context of GWB's "faith based" bandaid initiatives, who else would have standing to sue for an establishment clause violation? Competeing secular charities who already have equal access to the money?


And what if Congress explicitly or tacitly apporves of the spending on religion? No congressperson is gunna be the one that challenges money given to relgious charities...

Joan A. Conway

Reconsidering the definitive influence of J. A. Hobson's Imperialism, on Lenin, Hilferding, Kautsky, Rosa Luxemburg, Bakunin, during his lifetime from 1858 to 1940, as the greatest source of the Taproot of Imperialism: It is the growth of powers of production, such like the globe has never seen until the United States of America exceeds its growth of consumption, more goods can be produced that can be sold at a profit, and that more capital exists than can find renumerative investment. The international capitalists, and what appears to be European dominance in certain industries over U.S. businesses, can use government in order to secure for their particular use some distant undeveloped country by annexation and protection.

"Most of the complicated details of the Constitution are built to preserve the desideratum of insuring that nobody can "game the system" by secretly pulling levers."
Erasmussimo says on March 14, 2007, does not accord with "the scramble for markets which are responsible for openly avowed repudiation of treaty obligations of which the USA had not scrupled to defend." Hobson said.

"Germany and Russia professed adoption of material gain of their country as the sole criterion of public conduct other nations were not slow to accept the standard." Hobson said.

In our case the President's Supreme Court mobs us! Republic appointed Supreme Court Justices controls the coordinate authorities of this government, from 1996 to 2006, for over a decade, and including the 2000 Presidential Election! I say.

The argument is that the co-ordinate braches are not the checks on each other and the constitution lacks its usual authority, because of the political force tied to the scramble for markets under a capitalistic system. I say.

Let me remind you that this post is almost a duplicate of the "Trust Us" post, but-for this comment in regards to the Roman Empire, and its citizens being found in all of the explored lands and having international frame of mind either to colonize with its own people, institutions, and government controls, or to use imperialistic controls over lower races, like hut taxes to chain them to laboring in the mines in foreign lands, like Samoa.

The Catholic Church needs your babies. Babies are its life blood of the faith riches. If they are currently under retraction because of unfavorable public opinion against them for child abuse, sexual abuse of children, and sexual abuse of their silent nuns, and are filing for bankruptcy, not cooperative with the expected bride's mother, as her wedding planner, using womanizing tactics to confiscate their money, especially women on retirement of social security benefits and food stamps, and the government decides to save their neck(s) with a faith-based initiative without Congressional approval or any right to Petition the Court for unconstitutional provisions, repugnant to the constitution and void, you have Papal Control and Protestant Control over your lives.

You have a hut tax!

The need to control the governed and impose a Ruler!

You are not FREE!

But everytime you pay a property tax, I guess you had to realize that you were not free earlier than this wrong-headed faith-based initiative.

"The poeple cease to be their own rulers and assign their government into the hand for ... the eminent tribunal." Thomas Jefferson said on 9/11/1804, in his Letter to Abigail Adams.

Abraham Lincoln said in 1861, that "It will be overruled and never become a precedent, concerning no single tribunal."

Thus, while it may be of some atrovistic sentiment to say that the public interest needs to be restored, the Supreme Court Majority of Justices may argue that does it perform a "disruptive inquiry?"

I see it as a quid pro quo for the votes that the Religious Right generated for G. W. Bush, and their past support of an alcoholic son of a former President, George Bush; its pay back!

The serious business is the taproot of imperialism - investment opportunities and lower races to subjugate.

Under procedural jurisdiction and imagining the worst individual's liberty, the option is of course the abuse of discretion.

Why else would a government(s) abuse its powers without proper oversight but-for material gain and extension of itself in foreign lands?

This is similar to the Nixon V. Administrator of General Services, 433 U.S. 425 (1977) case: To take custody of Nixon's materials, to screen then to return, etc. President Recording and materials Preservation Act of 1974, looks a lot like the Patriot Act of 2001.

Nixon challenged the Act for violations of Separation of Prowers.

Did it have a disruptive inquiry?


See the qualified presumptive privilege: Beyer, Executive Privilege - A Constitutional Myth (1974) Fair Administration of Criminal Justice.

Frederick Hamilton

All I said was congress would have standing, I didn't mean to imply congress would have the guts to actually do the right thing. And the average citizen should have standing also.

There is no doubt that religion is the most formidable lobby in America today. Not that I disagree with religous America. I think it is a good thing in the main. It does amorphously wield immense power without having to spend one dollar on real lobbying. Kind of a nice position to be in.

Which brings me back to my original premise, doesn't favorable treatment of churches and religion vis a vis tax entanglements show that there is no such thing as seperation of church and state. How do you seperate an entity you bestow huge economic favors on?


Well assuming arguendo that the faith based initiatives get explicit or implict approval from Congress, then we still are at the beginning. Who other that a taxpayer could have standing?


Welcome to the echo chamber everyone.

Focusing on the standing issue (rather than the misguided attacks on charities and religions)-- if the policy actually establishes religion, it should be easy to find someone with standing. For example, if a flood victim had to enter a Catholic church to get government aid because of faith-based initiative, that would provide establishment clause standing.

Many clever and talented lawyers want to challenge this law. Their reliance on "taxpayer" argument suggests a telling inability to find any tangible establishment clause injury from faith-based initiatives.


And do tell BAC, how would a flood victim who receives help from a religious charity funded with governemnt money have standing? How is it they were harmed by the grant of public money to the religious charity in the first place? Where is the case or controversy there? I don't see a court saying the beneficiaries of charitable giving have standing, nor does my common sense understanding of the issue make me think the beneficiaries of the social welfare are the appropriate ones to challenge where their BENEFITS come from.

A taxpayer has a much much better claim to have been "harmed" in a consitutional sense by such actions. It's notthe giving of the money to the beneficiary that is the problem BAC, it is the giving of the money to the charity in the first place. Huge distinction, my God loving friend.

Save me Jebus.


And BAC, on top of the patent ridiculousness of suggesting a beneficiary of charity is supposed to challenge the benefits he or she receives, what makes you think someone like that would be able to tell or even know if a dollar that benefitted them came from the Government, and which came from the collction bin?

Again, no case or controversy there.

Sorry Bud, care to try again?

Joan A. Conway

I may have found standing under the Establishment Clause. I recently moved to another city and state a few years back thinking that I had done so permanently. I moved to a St. Elsewhere Woman's Home with subsidized rent if certain qualifications were met. I had an agreement. None of which said, I was to take care of the infirm. Of which they tried to impose on me.

Didn't their coercive conduct from threatening roommates, known to psychotic, and intolerable chemical agents used in rooms next to mine give me a standing to sue the St. Elsewhere, for disparate treatment or disparate impact under HUD and Human Rights Laws, based on Disability or Handicapped; Intentional Interference with an Economic Advantage and Fraudulent Inducement into a Contractual Relationship?

St. Elsewhere was obviously on the dole from that city's or state's contributions to its housing of the infirm, of which there were many.

As for me, I moved out in two months after my complaints were addressed as being a racists, when I complained about the same sex, same race, same age, as myself, but-for their mental or physical disability, not the same as myself.

Being perceived disabled should not be the same as literally being disabled or handicapped, but I believe it is under Human Rights Laws.

Can anyone cite a case which defines the difference between the two definitions within the same basis?



First, for the "patent rediculousness" point, there is nothing farfetched about someone first receiving charity and then challenging the method in which she received it as improperly establishing religion. Your rhetoric has outpaced your thinking again LAK.

Given the attention received by faith-based initiatives, I am positive that many groups will be watching how each dollar is spent. The ACLU will happlily monitor this for the charity recipient.

You also did not respond to the larger critique, LAK. Your inability to dream up any scenario where somenoe could claim an improper establishment of religion through this law tends to demonstrate that the law does not violate the Establishment Clause.



How about this for standing, suppose the faith-based intiative money is distributed among various churches. But my church gets none of it, either because we are too small, or not politically connected, or whatever. Could my church challenge the law as an improper establishment of religion?


That is a much better answer than your first. It seems clear to me someone recieveing benefits has no standing or motive to challenge where the money comes from. But a rival charity, a secular charity that had its government funding cut so that money could be given to a church is a much better candidate for standing. However, even they would likely have no standing if their funding was unaffected and the governement started giving new money to churches.

The harm is in the establishment of religion though, not in the misallocation of money. Taxpayers are the perfect plaintiff becasue it is their money that is being given to a sectarian organization. just becasue harms are intangible and spread across the population, does not mean there is no constitutional harm being done. You're a better thinker than suggesting otherwise BAC.

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