Hein, One Year Later: The Future of Church-State Litigation

Religious Liberties Practice Group, The Constitution Project, and The Pew Forum on Religion & Public Life

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 In June 2007, the U.S. Supreme Court held, in Hein v. Freedom From Religion Foundation, that taxpayers could not pursue a lawsuit claiming that conferences administered under the Bush Administration's Office of Faith-Based and Community Initiatives violated the First Amendment's Establishment Clause.  The Court's plurality opinion held that, even though taxpayers have standing under the Establishment Clause to challenge legislative expenditures on religion, the plaintiffs in this case lacked such standing because the program involved discretionary executive branch spending, rather than legislation authorizing the challenged faith-based conferences.

Our panel will focus on the U.S. Supreme Court’s decision in Hein and its impact on existing and future church-state litigation.  The event will summarize the Court’s fractured opinion and examine what has happened in the last year as a result of Hein, discussing the lower court decisions that have cited Hein as a basis for dismissing Establishment Clause claims.  Finally, the panel will speculate about what to expect in the coming years and discuss what Hein says about the Roberts Court and its views on church-state litigation. Audio recorded on June 18, 2008.


  • Mr. Alex J. Luchenitser, Senior Litigation Counsel, Americans United for Separation of Church and State
  • Prof. Ira C. “Chip” Lupu, F. Elwood and Eleanor Davis Professor of Law, The George Washington University Law School
  • Mr. Walter M. Weber, Senior Litigation Counsel at the American Center for Law and Justice
  • Moderator: Prof. Robert W. Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law and Religion, The George Washington University Law School