Ball on a Needle: Hein v. Freedom from Religion Foundation, Inc. and the Future of Establishment Clause Adjudication

Amidst a flurry of controversial decisions in the final days of the 2006-2007 Term, the Supreme Court delivered its opinions in Hein v. Freedom from Religion Foundation Inc. For several reasons, Hein attracted considerably less attention than the other decisions at Term's end, all of which were seen as manifesting the Court's general rightward turn. Hein involved the seemingly arcane and relatively inaccessible subject of taxpayer standing to sue in the federal courts. Far more than may appear on the surface, the outcome and opinions in Hein are likely to reverberate heavily through the process of Establishment Clause adjudication. The primary purposes in this paper are to expose, analyze, and critique that potential gap. The piece begins with a focus on Hein itself. Whatever the genesis or wisdom of the legislative-executive distinction in Hein, the opinions raise vitally important questions about the scope of taxpayer standing in the future.