Prior precedent, namely the 1968 case Flast v. Cohen, permitted taxpayer challenges for congressional appropriations of tax dollars for religious purposes that may violate the Establishment Clause. Justice Samuel Alito, in an opinion joined by Chief Justice Roberts and Justice Kennedy, claimed the mere fact that executive branch allocates taxpayer dollars appropriated by Congress does not make them one in the same. Lacking any direct congressional relationship to the faith-based initiative, Alito claims that Flast's narrow exception cannot be stretched to produce an "actual case and controversy."
Justice Scalia, joined by Justice Thomas in a concurring opinion, signs on to the judgement issued by the majority, but would overturn Flast v. Cohen in the process. Scalia feels that the Supreme Court overstepped its bounds in Flast, violating the separation of powers doctrine embedded in the Constitution and specifically the defined boundaries of the judicial branch as established in Article III.
The liberal bloc of Souter, Stevens, Ginsburg, and Breyer coalesced around the minority opinion where they would extend Flast to executive branch allocations of taxpayer dollars. Souter, writing for the minority, failed to see a "distinction in either logic or precedent" from congressional appropriations or an outcome where "taxpayers have any less at stake."
The case admittedly is not among the most glamorous of the slew of First Amendment decisions forthcoming from the Court the past couple of weeks, although it does fit into a general pattern of a 5-4 majority surrounding a conservative position. The "Bong Hits" and campaign finance (more on this tomorrow) decisions stole the headlines, but all three were decided by the same five justices: Roberts, Scalia, Kennedy, Thomas, and Alito. The Bush appointees have clearly swung the Court to the right, and Justice Kennedy's position as the swing vote also trends the same direction given his more conservative orientation in comparison to his former centrist compatriot Sandra Day O'Connor.
While the Roberts Court seemingly has a mixed record on free speech after two terms, its two religion decisions have permitted greater freedom of religious expression and more entanglement between government and faith-based organizations. These two decisions seemingly stand as open invitations for additional challenges to the Warren Court and its successors to chip away at the so-called "wall of separation" between church and state.