WASHINGTON (ABP) — The Supreme Court heard oral arguments Feb. 28 in a case that, on the surface, is about technical issues — but could end up having significant ramifications for the way courts handle church-state cases.
At stake, advocates of church-state separation say, is the ability of federal courts to hear most cases involving government action that favors one religion over another or religion over non-religion.
An inquisitive and at times combative court listened to both sides in Hein v. Freedom From Religion Foundation (No. 06-157). The case concerns the legal doctrine of standing, or the ability to file lawsuits under the Constitution, in cases dealing with the First Amendment's religion clauses.
The case marks the first time the justices have dealt with President Bush's faith-based initiative — his attempt to expand the government's ability to fund social services through churches and other religious charities.
The Wisconsin-based foundation sued the White House Office of Faith-Based and Community Initiatives, headed by director Jay Hein. The suit claimed the office and its actions violate the Constitution's ban on government establishment of religion.
A federal district court dismissed the suit, saying the plaintiffs did not have proper standing as taxpayers. But the 7th U.S. Circuit Court of Appeals reversed that ruling, saying the foundation and three of its members, as taxpayers, had the right to challenge White House allocations used to fund conferences that promoted the faith-based initiative.
The court said the foundation had taxpayer standing to challenge the practice because government money was being used to promote religion, even though Congress did not specifically appropriate the money to any religious groups.
The Supreme Court has long held that taxpayers do not generally have standing to sue the government over how it disburses funds because the connection between individual taxpayer contributions and expenditures is too remote. Individuals who sue the government must prove specific injury from the governmental act.
In 1968, the court made an exception to the rule. In Flast v. Cohen, justices said the exception was reasonable because of the special history of the First Amendment's establishment clause, which bars government support for religion. Many of the framers of the Constitution argued forcefully against European-style state support and financing of churches.
The Hein case turns on the scope of that exception.
The taxpayer-standing exemption created by the precedent is important, Justice Stephen Breyer said, because “Flast stands for the proposition that, when the government spends money in violation of the establishment clause, a taxpayer — after all, the money comes from the taxpayer — can bring a lawsuit. And the reason that they do that is because the establishment clause is an important joint part of the religion clauses, and there'd be no other way to bring such a challenge.”
Solicitor General Paul Clement, arguing for the government on Hein's behalf, countered that the Flast decision should apply to government expenditures that have a clear connection to congressional taxing power.
“There has to be a [congressional] statute, and then there has to be an allegation that the statute creates a unique injury” to a taxpayer by supporting religion, Clement argued, in order for that taxpayer to have standing. Since the government conferences challenged by the Freedom From Religion Foundation are supported entirely by executive-branch general funds rather than a specific congressional appropriation, taxpayer standing doesn't apply in this case, he said.
But some justices — such as Breyer and Justice Antonin Scalia — took that principle to a rhetorical extreme, asking Clement if taxpayers would have standing to challenge the building and operation of a government-sanctioned church if it was done entirely by executive-branch action.
“So you're saying if the government — the executive or the Congress — if the congressional statute authorizes the giving of money for the building of a church, that's bad,” Scalia said. “But if it authorizes, [if] it makes a general authorization to the president” and the president uses it to build a church, then is there no taxpayer standing to challenge such a claim?
Clement said not in the latter case, but offended parties would have other grounds for suing the government. “Anybody who's subjected to the mass at the church probably has standing ….” he said.
Scalia interrupted, “We're not forcing anybody in at gunpoint; we're just building a government church.”
But Clement referred to other cases, like the 2005 Van Orden v. Perry decision upholding a Texas state display of the Ten Commandments — in which the court has recognized standing for people seeking to remedy perceived violations of the establishment clause.
“With respect, Justice Scalia, nobody forced Van Orden to walk by the Ten Commandments display in Texas at gunpoint, and yet this court said that he could bring an establishment-clause challenge,” Clement responded.
Washington attorney Andrew Pincus, arguing on behalf of the Freedom From Religion Foundation, said the government was “proposing two very substantial limitations [on taxpayer standing under Flast] that bear no relation to the relevant establishment-clause principles, the history of the clause, or the history of this court's decisions.”
But Chief Justice John Roberts, who appeared amenable to Clement's contentions during the first portion of the argument, challenged Pincus. “I don't understand, under your theory, why any taxpayer couldn't sue our [Supreme Court] marshal for standing up and saying, 'God save the United States and this honorable court.' Her salary comes from Congress.”
Pincus responded that Flast requires religion funded by government expenditures to be more than “incidental” in order to justify taxpayer standing for a lawsuit.
Two key justices in the case — Justice Anthony Kennedy and the court's newest member, Justice Samuel Alito — questioned Pincus closely. Kennedy seemed concerned about whether taxpayer standing under Flast would, as the government asserts, “open up the floodgates” to frivolous First Amendment lawsuits.
“It seems to me unduly intrusive for the courts to tell the president that he cannot talk to specific groups to see if they have certain talents that the government may use,” Kennedy said.
Kennedy is generally considered one of the court's “swing votes” on contentious church-state issues. Neither Roberts nor Alito, who replaced retired Justice Sandra Day O'Connor, has passed judgment on an establishment-clause case since joining the high court.
The case will likely be decided before the Supreme Court ends its 2006-2007 term in June.
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Read more:
Experts: More danger than meets eye in upcoming Supreme Court case (2/22)
Supreme Court to decide if taxpayers can sue over Bush's faith-based plan (12/22/20006)