Three Important Developments Involving Law and Religion During The Summer Of 2007

By MARCI HAMILTON

Thursday, Sep. 06, 2007

I took a short break from my column-writing duties this summer in order to finish my forthcoming book. Looking back over the summer, I saw three major developments in the area of law and religion.

The Supreme Court Narrows Taxpayer Standing in Establishment Clause Cases

From the moment that Justice Samuel Alito joined the Supreme Court in the seat left by Justice Sandra Day O'Connor's retirement, there has been reason to be concerned that the Establishment Clause would become more watered down than it already is. The open question was would he be an "incrementalist" who chipped away at the separation of church and state bit by bit, or would he take the most extreme positions taken by Justices Scalia and Thomas. In June, we learned that the answer is the former.

The Court's decision in Hein v. Freedom from Religion ruled that taxpayers do not have standing to challenge executive spending where the funds were taken from "general" executive branch funds. (The Freedom from Religion Foundation had challenged the White House's Faith-based Initiatives funding.)

The marquee question in the case was whether Flast v. Cohen -- which recognized that the values of the Establishment Clause permit taxpayers to challenge government expenditures of funds for religious purposes -- would be overruled. The implicit reasoning in Flast is persuasive: When the government expends funds in favor of religious entities, there is injury to the taxpayer whose taxes have been used to support another's religion. This was the heart of the reasoning in James Madison's Memorial and Remonstrance, where Madison argued that not even "three pence" of taxpayers' proceeds should be used to pay Christian teachers in Virginia.

Justice Alito, joined by Chief Justice Roberts and Justice Kennedy, took the position that although Flast should not be overruled, they would not apply the principles of Flast to government funds that were taken from an executive branch general fund. Rather, taxpayer standing would only be permitted in situations where Congress had specifically designated the funds be used for a religious purpose.

Not only is the reasoning incremental, it is also simply intellectually and morally indefensible. The harm identified by Flast is certainly present in Hein: taxpayers' funds were being used to support a religious mission. In fact, the case creates an unattractive incentive for the executive branch to curry favor with religious entities, by immunizing it from Establishment Clause attack so long as it pulls funds from "general" accounts. That is the kind of incentive to pander to religion that this Administration especially does not need.

Justices Scalia and Thomas, in a principled, if utterly wrongheaded and historically indefensible, concurrence would have jettisoned taxpayer standing altogether. The 4-person dissent would have preserved Flast, as is, and applied it to find standing in the case before the Court. When combined with the three-person plurality, there were 7 votes for the proposition that taxpayer standing in the Establishment Clause context stands, but the parameters around Flast were definitely tightened.

Los Angeles Archdiocese Clergy Abuse Settlement and the Slow Release of Church Documents

One of the bigger headlines of the summer concerned the Los Angeles Archdiocese's $660 million settlement with over 500 victims of clergy abuse. The survivors, on average, received $1.3 million each for their injuries. Almost half of the amount is to be paid by insurance and the rest by the Archdiocese out of funds and properties not dedicated to religious purposes.

These settlements are never about money alone, though that is often the only fact the public absorbs. We saw the number $660 million in every headline, and to a lesser extent the number of victims, but only as an aside were readers told that important internal documents also would be released.

In Los Angeles, an absolutely crucial element in the deal was that the Archdiocese was required to release documents to the public involving its knowledge of the predatory habits of its employees and clergy. A judge is monitoring the release of the documents.

Stay tuned on this issue (as hard as it is to follow), because these settlements benefit far more than the immediate survivors. When the public learns how those in power have hidden abuse and abusers, and the identity of individual abusers, it will reap precious knowledge.

As it turns out, child predators act on their urges well into their elderly years, so knowing the identity of predators from the 70s, 80s, and 90s is one obvious way to protect our children right now. In addition, when the predators' names come out, other victims of the same perpetrator are often empowered to come forward. When they do, their secret agony can become their public vindication. Finally, we are all better served and better armed when we are reminded: power corrupts and absolute power corrupts absolutely. The story of clergy abuse (in every religion) is not only about the survivors, though they are obviously the appropriate focus, but also about the catastrophic abuse of trust by those in power.

California and Delaware Window Legislation

As I explained in an Op-Ed in the Los Angeles Times, the Los Angeles Archdiocese settlement was made possible by window legislation that I have supported in past columns, such as here, and here. When California suspended the statute of limitations on childhood sexual abuse during the 2003 calendar year, it made it possible for over 1000 survivors of child sex abuse to get into court and have the sort of meaningful legal bargaining power needed to obtain justice.

Without the window, the vast majority of claims would be barred by the statutes of limitation, leaving the survivors locked out of the courthouse. (Why? Because the statute of limitations on childhood sexual abuse in most states is scandalously short - so short that it is a comfort to predators and a bar to justice for most survivors.)

In California, victims who needed and used the window were not just those who were abused within the Catholic system. To the contrary, suits were filed against the Boy Scouts, the Explorers, the Seventh Day Adventists, and others. The issue, in the end, has very little to do with religion. The sad truth is that the vast majority of child sex abuse victims are victims of family and friends of family. The incest victims need their day in court, too.

The Delaware legislature put that insight into reality this summer when it passed the Child Victims Act. The Act was supported by an enormous range of organizations and individuals. It abolished the civil statute of limitations on child sex abuse and instituted a 2-year window. Delaware is now the most progressive state in the country for people who are, or were, victimized sexually during childhood.

I do not think there is much question at this point that the Boston Globe's 2002 revelations regarding the Boston Archdiocese's clergy abuse issues started a larger social revolution - to the benefit of all children.

In sum, we have a setback for those who would challenge government actions benefiting religion and involving taxpayer funds, an opportunity for public education on crucial matters hidden to date, and a movement that has transcended its historically religious roots. Interesting, to say the very least.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Professor Hamilton's forthcoming book is titled, How to Deliver Us from Evil: What America Must Do to Protect Its Children (Cambridge University Press 2008).

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