Baptist Joint Committee for Religious Liberty : Supreme Court : Sonia Sotomayor and Elena Kagan write Dissents to defend Religious Freedom, but lose two cases before the Majority of Conservative Judicial Activism

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Texas and Arizona win in the Supreme Court ( two different cases ) but Decisions diminish religious liberty protections - Two conservative states supported by Five Conservative Justices of the Supreme Court.

Baptist Joint Committee
For Religious Liberty
Decisions diminish religious liberty protections
Written by K. Hollyn Hollman, BJC General Counsel
May 18, 2011


Decisions diminish religious liberty protections


Some excerpts :

The U.S. Supreme Court has issued decisions in both of its religious freedom cases this term. But just because we didn’t have to wait until June does not mean the Court did us any favors. The BJC filed briefs in both cases, and the decisions were disappointments. They illustrate the difference between valuing religious liberty in theory and actually protecting that liberty in practice.

Sossamon v. Texas is a statutory interpretation case where the Court adopted a narrow reading of the remedies available when a state violates a prisoner’s rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA). The Court made it more difficult to enforce a law that was carefully designed to provide strong religious exercise rights for institutionalized persons.

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Unfortunately, the Court undercut this protection by holding that the statute’s provision of “appropriate relief” could not be read to include money damages. As Associate Justice Sonia Sotomayor noted in dissent, “It is difficult to believe that Congress would have devoted such care and effort to establishing significant statutory protections for religious exercise and specifically extended those protections to persons in state institutions, yet withheld from plaintiffs a crucial tool for securing the rights the statute grants.” After Sossamon, prisoners may still sue state defendants for burdening their religious exercise, but plaintiffs are “forced to seek enforcement of those rights with one hand tied behind their backs.”

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Even worse than the Court’s narrowing of RLUIPA’s enforcement provisions is its obliteration of taxpayer standing in Arizona Christian School Tuition Organization v. Winn, et al. In Winn, the question was not about how to correct a constitutional violation but about whether the plaintiffs could even get into court (known as “standing to sue”) to challenge a law alleged to provide taxpayer support to religion in violation of the Establishment Clause.

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The majority’s opinion, written by Associate Justice Anthony Kennedy, focuses on the mechanism Arizona used for the alleged establishment of religion and, in essence, leaves the doctrine of taxpayer standing hanging by a thread. The Court held that the taxpayer plaintiffs did not have standing under Flast v. Cohen (1968), the case that established the narrow and necessary exception to the general rule against taxpayer standing. The rule in Flast recognizes taxpayer standing when the government uses its taxing and spending power in violation of the Establishment Clause. In Winn, however, the Court denied standing because the Arizona program did not extract a tax.

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Associate Justice Elena Kagan, writing her first dissent since joining the Court, sharply criticized the Court’s decision. She said, “This novel distinction in standing law between appropriations and tax expenditures has as little basis in principle as it has in our precedent. ... Taxpayers who oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other.”

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