The Propriety of Recoupment Orders as Remedies for Violations of the Establishment Clause
Damages and Damocles: The Propriety of Recoupment Orders as Remedies for Violations of the Establishment Clause
David T. Raimer, 83 Notre Dame L. Rev. 1385 (2008)
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This Note argues that the use of such recoupment orders in the context of the Establishment Clause is not only constitutionally questionable, but also ill-advised from an equitable perspective. While the Supreme Court’s recent decision in Hein v. Freedom from Religion Foundation, Inc. marginally cabins the application of this remedy to legislatively appropriated funds, a very real potential for abuse remains. Hein’s limiting effect notwithstanding, the doctrine articulated by the district court in Americans United I and by the Seventh Circuit in Laskowski v. Spellings hangs a veritable sword of Damocles over religious groups that receive public funding, essentially forcing them to wager their existence on their understanding of the Supreme Court’s Establishment Clause jurisprudence.
Part I contains a synopsis of the taxpayer standing doctrine articulated in Flast v. Cohen, and a brief recitation of cases in which it has been used to seek restitutionary relief. Part II addresses the relevant constitutional issues, first questioning whether actions for reimbursement of funds to a government treasury can properly be brought under Flast and then assessing the suitability of this remedy in light of concerns regarding the separation of powers and federalism. Part III discusses the equitable considerations involved in using restitution as a remedy for a violation of the Establishment Clause, and proceeds to detail the potential deterrent effect recoupment orders could have on faith-based organizations who seek public funds in order to provide social services. Part IV concludes with the assertion that if recoupment orders are not stricken from the list of remedies for Establishment Clause violations, at the very least, courts should provide a safe haven akin to qualified immunity for religious groups who contract with government entities.