Only one exception has been made to this rule against what are called taxpayer suits. In 1968, in Flast v. Cohen, the Court allowed such taxpayer cases specifically in order to challenge the constitutionality of congressional acts alleged to be in violation of the establishment clause. Religion is dangerous, the Court implied in 1968, and its containment requires special constitutional doctrine. Careful emphasis was placed by the majority in Flast on the evil of using any government funds whatsoever to support religion. In his concurring opinion in Flast, Justice William Douglas, in anti-Catholic language characteristic of the time, warned of the "notorious" and "mounting federal aid to schools" as well as the risk that any money given to parents of parochial school children would be given directly to "the priest."
The exact contours of the new Hein precedent are still unclear. The decision did not explicitly overrule Flast but formally only limited Flast to taxpayer establishment clause challenges to acts of Congress, distinguishing the White House Office as a part of the executive branch. But, as Justice Scalia wrote in his concurrence in Hein, Flast's days are numbered. Religion can be managed like anything else, in his view, without special law.
Souter's opinion in Hein, on behalf of the dissenting justices--Justices Stevens, Ginsburg, and Breyer, in addition to himself--relies on a social understanding of religion more characteristic of the Flast era. Souter insists that individual conscience-true religion, one might say-must be protected by a high wall of separation from state supported religion-false religion. Flast reflects, he says, "the Founders' pragmatic conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions." This position is increasingly a minority voice in the U.S. and on the Court. Religion is now understood to be part of the solution, not part of the problem, a partner for government, not the antinomian opposition.
If Judge Sotomayor's views on religion are similar to those of the President, it is likely that she will share his apparent post-separationist understanding that religion can constitutionally be endorsed by government.
Winnifred Fallers Sullivan is an associate professor and Director of the Law and Religion Program at SUNY's University at Buffalo Law School. She is the author of Paying the Words Extra: Religious Discourse in the Supreme Court of the United States, The Impossibility of Religious Freedom, and Prison Religion: Faith-based Reform and the Constitution.