Scott Pilutik

I am an attorney and consultant living and working in Manhattan, focusing primarily on church/state constitutional law. I'm a recognized expert on the Church of Scientology organization. I also have strong interests in intellectual property law where it intersects with emerging media, and free speech.

I support the efforts of the Americans United for Separation of Church and State, the Freedom From Religion Foundation, the National Lawyers Guild, the ACLU, Creative Commons, and the Electronic Frontier Foundation. I am a member of the New York County Lawyers Association and the New York State Bar Association. I also enjoy (watching) hockey and (doing) photograhy.

Online I can be found on Facebook, Twitter. My resume can be viewed here. I can be reached by phone at 212.645.6241 or by e-mail at pilutik[at]

Commmentary on Flast and Hein

In 1968, the Supreme Court (in Flast v. Cohen) identified a narrow exception to the standing doctrine, which essentially requires plaintiffs to suffer some injury traceable to the Constitutional violation being alleged. Although taxpayers do not generally have standing to challenge laws passed by Congress, an exception was made for taxpayers alleging an establishment clause violation, so long as the alleged violation derived from Congress’s exercise of its taxing and spending power, and that Congress exceeded its limitations upon that taxing and spending power.

If this sounds circular, confusing, and somewhat legally fictitious, it’s probably because it is. But the court was grappling with a difficult issue, one that pitted a substantive prohibition on government action (the establishment clause) against Article III’s administrative limitations on the types of cases a court can hear. How could the government otherwise be constrained from violating the Constitution if the court didn’t exercise judicial review?

Flast represented a compromise on that question–on one hand, prohibiting the case from moving forward would reveal a constitutional blind spot, because of the inherent nature of establishment clause cases, where individual injuries of the type imagined by Article III are often indiscernible (especially where funds are simply disbursed). On the other hand, the court was wary to arm taxpayers with the right to sue the government at its whim. The court “solved” the problem, in essence, by permitting the case before it to move forward, and then constructing a narrow and arbitrary exception for others to move forward, coincidentally resembling the facts in Flast.

The Flast majority, written by Chief Justice Warren is practically devoid of any policy considerations–why these narrow exceptions? Why have an exception at all? Justice Douglas, in concurrence, ably takes on the policy questions, arguing that Flast should have been broadened to account for as yet unimagined constitutional violations, lest such violations be normalized by the political branches. Justice Stewart, also concurring, drew attention to the relationship between the taxpayer and government spending on religion, relying on James Madison’s explicit admonition that the twain shant meet:

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

As a result of C.J. Warren’s failure to imbue Flast with any principled rationale, Flast has since been generally confined to its facts, as the government has since sought and indeed found other ways to fund and endorse religious groups. This brings us to this week, and the court’s decision in Hein v. Freedom From Religion Coalition, which presented a very Flast-like problem: Does a taxpayer have standing to sue the executive branch for appropriations that allegedly endorse religion?

Last Tuesday, the Supreme Court answered no, 5-4. For Justice Alito, writing for a plurality (along with Roberts and Kennedy), the task was simple– Flast concerned a legislative apportionment, and Hein concerned an executive apportionment, Flast does not therefore apply, let’s go home. He utterly fails to address why it should matter which branch of the government is violating the constitution, a point hammered home by both Scalia in concurrence (Thomas joined), and Souter in dissent (Stevens, Ginsburg, and Breyer joined). One criticism of Alito and Roberts from the left has been a failure to uphold their vow to follow precedent, but Alito’s Hein plurality opinion slavishly clung to a precedent that makes as little sense now as it did when C.J. Warren arbitrarily set it in stone.

The six justices comprising the concurrence and dissent all agreed that the Flast holding is ridiculous, but disagree on whether it should (as the concurrence believes) be eliminated entirely so that Article III’s standing requirement is without exception, or (as the dissent believes), be broadened so as to actually prevent the government from violating the constitution. The difference in opinion ultimately comes down to which constitutional provision, between the two, each Justice believes is more important.

Scalia firmly believes in the sanctity of Article III and sees Flast as an outlying blemish on the otherwise reliable doctrine of standing. “Generalized grievances affecting the public at large” were not intended to be settled by the courts and instead “have their remedy in the political process.” Structurally, executive branch spending does seem like it should be a political question rather than a judicial question. The problem with that approach is that constitutional violations arising under the establishment clause will often be unsolvable through the political process, especially as here, where executive branch largesse is bestowed upon a religious majority, who are unlikely to rise up and vote out their bestowers.

Where a substantive constitutional admonition such as the establishment clause is in such sharp conflict with the Article III standing requirement, the standing requirement should be the one to budge so that the substantive prohibition not remain so vulnerable and free to violate without remedy.

Flast is a bad opinion with good intentions. Its standing exception is narrowly drawn and it fails to explain the necessity of is narrowness, nevertheless hinting at an unsavory litigation stampede if it were broadened (fear mongering which was reprised in Hein). The concurring Douglas argued that addressing the constitutional violation was the most important consideration–let the trial courts sort out frivolous claims. Douglas feared a growing legislative and executive branch majoritarian-controlled bureaucracy directing “mounting federal aid to sectarian schools,” prophetically noting that the “subterfuges [were] numerous.” Unless the court left its doors open to individuals lacking powerful sponsors, such as churches or unions, Douglas noted, he/she was certain to be ‘plowed under.’

In Hein, Justice Souter assumes the Douglas/Souter/Fortas mantle in Flast, stressing the explicit role the establishment clause played in the minds of the framers as a check on government spending for religious purposes, even citing specifically to Madison’s Memorial and Remonstrance, cited here above, as did the Flast concurrers.

Hein was a chance to rectify an inherent blind spot in the constitution that simply permits, by the plurality’s reading, establishment clause violations to flourish unabated. And so, just like in school vouchers, a new subterfuge and administrative work-around has been legitimized, just as Douglas warned. Souter notes the same: “if the Executive could accomplish through the exercise of discretion exactly what Congress cannot do through legislation, Establishment Clause protection would melt away.” It’s not clear why Souter is speaking in the future tense here—he’s writing in dissent in the case that just went a long way to melting it.

Ultimately, Article III standing should not turn on awkward and ill-fitting distinctions between physical and mental, or wallet or psyche, as Scalia’s proposes (and as Souter asks, how do employment discrimination and racial district gerrymandering fit into either?). I’m not myself sure what it should turn on actually. But perhaps it should back up a bit and look to the language that dictates the standing doctrine to begin with: Article III permits the judiciary to hear only “cases or controversies.” Where the government endorses particular religious groups with direct funds and almost no oversight—indeed, where it hands over the social welfare system to favored religious groups, as Bush’s Office of Faith Based Initiatives has done—this is a controversy in dire need of judicial review, because religious minority liberty interests haven’t a chance turning to the political process, which was the entire point of Hein to begin with.

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