WASHINGTON (ABP) — There's more at risk for the separation of church and state than meets the eye in an upcoming Supreme Court case, a panel of legal experts agreed Feb. 21.
The experts previewed oral arguments in Hein v. Freedom From Religion Foundation, slated for Feb. 28.
The American Constitution Society sponsored the discussion between the attorneys who represent groups with friend-of-the-court briefs on opposite sides in the case. It was held at the National Press Club in Washington.
“What this case is really about is the basic question [of] whether citizens have the right to sue to keep the government from violating the First Amendment,” said Richard Katskee, assistant legal director for Americans United for Separation of Church and State.
His organization, the Baptist Joint Committee for Religious Liberty, People for the American Way and other groups supportive of church-state separation have filed a joint friend-of-the-court brief in favor of the Freedom From Religion Foundation's position.
The case will mark the first time the justices deal with President Bush's faith-based initiatives — his attempt to expand the government's ability to fund social services through churches and other religious charities.
However, Hein does not deal directly with whether the program violates the First Amendment's ban on government establishment of religion, as some of its critics contend. Rather, the court will consider a narrower issue — whether a group of taxpayers has “standing,” or the right to sue, over the use of general executive-branch funds to promote the faith-based plan.
According to Judith Schaeffer, attorney for People For the American Way, if a majority of the court rules broadly against the Freedom From Religion Foundation, it will effectively “close the courthouse doors” to Americans trying to prevent the government from violating the First Amendment.
In the case, President Bush's administration appealed a 2005 ruling from the 7th U.S. Circuit Court of Appeals. That decision said a group of taxpayers, represented by the Wisconsin-based Freedom From Religion Foundation, could challenge the White House's practice of spending money on a series of conferences to promote the faith-based initiative.
The taxpayers said they had standing to challenge the practice because government money was being used to promote religion, even though Congress did not specifically appropriate the money for any religious groups.
Attorneys for the government responded that giving taxpayers the right to sue over the conferences would dramatically expand the rules for such lawsuits dealing with the First Amendment's religion clauses.
The Supreme Court has long held that taxpayers do not generally have standing to sue the government over the way it disburses funds because the connection between an individual taxpayer's contributions and the expenditure is too remote. For individuals to sue the government over a constitutional violation, they must prove a specific injury they sustained because of that governmental act.
In 1968, the court carved out an exception to the rule with regard to the First Amendment. In Flast v. Cohen, justices reasoned that 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 underlying issue in the Hein case, the panelists said, is the scope — and even the legitimacy — of the exception that the Flast decision created.
Benjamin Bull, chief counsel for the Alliance Defense Fund, helped craft a friend-of-the-court brief on behalf of several faith-based groups in favor of the White House's position. He said the Flast case expanded taxpayer standing beyond what the Constitution demands.
For starters, Bull argued, the Flast decision dealt with a congressionally authorized expenditure — but the Hein decision deals with a presidential expenditure.
“What Hein is all about is, once again, we have taxpayers without traditional standing … filing a lawsuit against the Executive Branch … for allegedly violating the establishment clause,” he said. “So it's bypassing the holding of Flast — in fact, trying to enlarge Flast.”
Bull — who noted that the establishment clause says “Congress shall make no law respecting an establishment of religion …” — said such an expansion of Flast would open the doors to many more First Amendment lawsuits against government agencies.
But Katskee countered that, in the nearly 40 years since the Flast decision, federal appellate courts have allowed taxpayers to sue for establishment clause violations in “fewer than two dozen cases.”
While the government is not arguing that the Flast expansion be overturned, Bull's friend-of-the-court brief and several others supporting the government's side of the case contend Flast should be curtailed or eliminated altogether. The traditional way to prove standing, Bull argued, would suffice to remedy establishment-clause violations through the courts.
But both Katskee and Schaeffer noted that, in modern times, it is extremely difficult to prove specific injuries in such cases.
“Those violations harm each of us individually because, as the Framers explained it, it harms me personally to take money from me and use it to support a religion I don't believe in,” Katskee said.
Schaeffer said the “more extreme” arguments supporting the government's side, if accepted, could lead to a significant alteration of church-state law in the country.
She cited one brief filed by Roy Moore, the former Alabama chief justice who was removed from office after defying a federal court order to remove a monument to the Ten Commandments that he had erected in the rotunda of the Alabama Supreme Court building.
“Mr. Moore has taken the truly extremist position not only that taxpayers shouldn't have standing in establishment-clause cases, but that no individuals should have,” Schaeffer said. “Religious liberty in America would be radically undermined if a majority of the court would accept this view of the establishment clause.”
But Bull, arguing for those who support the government's position, said his clients wouldn't want the court to accept Moore's view and eliminate the right to sue over First Amendment violations altogether.
“What we're talking about here is not doing away with lawsuits where there are establishment-clause violations. All they're requiring is that there actually be some injury involving some plaintiff … before a lawsuit can be filed,” he said.
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Read more:
Supreme Court to decide if taxpayers can sue over Bush's faith-based plan (12/4/2006)