Everson and Taxpayer Standing

Suppose a City provides free bus transportation for residents with health care appointments. And suppose John Doe, a city taxpayer, sues to enjoin the program because it pays for transportation to all medical appointments including for women seeking abortion services. Doe claims that subsidizing abortion through his tax payments violates his religious beliefs and asks the federal court to enjoin free bus rides for those seeking abortions.

How should this case come out?

Suppose instead the City uses tax dollars to actually pay for abortions for low income women. Now should Doe be allowed to enjoin these expenditures as violating his free exercise of religion (by requiring him to facilitate through his tax payments that which his religion forbids him to facilitate)?

Now consider Prof. Steven Smith's discussion of "taxpayer" injuries and the EC:

                 As a general matter, the Supreme Court has refused to recognize payment of taxes as a cognizable injury; forced payment of taxes to be used in part for purposes that a taxpayer believes to be objectionable or even unconstitutional does not even give a person standing to sue. However, the Court’s zeal for a no establishment principle has led it to create a special exception allowing objecting taxpayers to sue when government subsidizes religion.

                This exceptional treatment is difficult to justify on the basis of a realistic and prudential approach to religious freedom. It is true, of course, that payment of taxes to support causes one does not favor is in some sense a very real harm; the taxpayer is poorer, and she may be offended as well. But a taxpayer suffers these kinds of injuries whether the objectionable use of public money aids religion or not. So how is this sort of injury, normally not even cognizable, transformed into a violation of the taxpayer’s religious freedom?

                The lazy answer would simply define religious freedom to include a right not to contribute to any cause that may have the effect of aiding religion. But that answer is too easy; indeed, it is patently circular, attempting to settle the issue by definitional fiat.

                A less question-begging, more realistic approach might start by distinguishing between a taxpayer’s religious objection-an objection, that is, arising out of religious commitments or beliefs-to supporting a particular public project, on the one hand, and on the other hand a taxpayer’s objection, however grounded, to the religious use of tax dollars, or a to a use that benefits religion. The first kind of objection might plausibly be characterized as implicating the taxpayer’s religious freedom insofar as she is being forced to act in contravention of, or at least to support something that is contrary to, her religious commitments. By contrast, the injury in the second situation, though real enough, seems more comparable to ordinary taxpayer injury. Thus, a Quaker who sincerely opposes the use of public money to support an undeclared war in Vietnam and an atheist who sincerely opposes the use of public money to support parochial schools both suffer real harm. But the atheist, unlike the Quaker, cannot as plausibly say that his harm consists in being forced to act contrary to his religious convictions (unless, that is, he tacitly imports an extremely loose definition of “religion” that for many other purposes he, and we, would probably be unable to embrace).

                Ironically, however, in the kind of case where tax payment might plausibly be described as a violation of religious commitments, and hence perhaps of religious freedom, current law does not recognize the injury. Thus, the atheist’s claim would likely be treated as presenting a religious freedom problem, while the Quaker’s harm is probably not even a cognizable injury sufficient to confer standing to sue. Measured against a realistic appraisal of harm to religious freedom, current law seems topsy-turvy.

There are obvious difficulties, of course, in granting constitutional status to every religion-based objection to the use of public money. So my claim here is a modest one: I suggest only that if payment of taxes for what may be unconstitutional purposes is not normally a harm recognized by the law, then there is no reason why it should be given special status in this context merely because the nature of a particular taxpayer’s objection is that the expenditure will have the effect of aiding religion.

                This conclusion would have important consequences for what is probably the most persistent, and in a material sense most important, church-state controversy: aid to parochial schools (including many of the voucher programs that seem to enjoy growing political support). Once we recognize that advancement of religion is not an evil per se, and that there is no better reason to recognize taxpayer injury here than in other contexts, it follows that aid to parochial schools is no different from state aid to Chrysler Corporation, or the Shah of Iran, or the family farm, or the National Endowment for the Arts, or a host of other controversial causes and interests. Many people sincerely object often on entirely plausible grounds of self-interest or political principle or moral scruples to any of these grants of aid. But our working assumption has been that if government concludes that such aid will serve the public interest, the courts have no call to intervene. And there is no good reason to treat parochial schools differently.