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Published in Print: March 7, 2007, as Court Wrestles With Taxpayer Suit on ‘Faith’ Initiative

Court Wrestles With Taxpayer Suit on ‘Faith’ Initiative

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The U.S. Supreme Court heard a lively hour of oral arguments last week on whether taxpayers may press a legal challenge to the Bush administration’s so-called faith-based initiative.

The issue of “standing” arose from a suit by a Wisconsin group that challenged conferences the White House, the Department of Education, and other federal agencies sponsored to inform religious groups about procedures for applying for federal funding and to encourage them to participate in more programs.

Under legal precedents, standing requires a plaintiff to have a personal stake in a case or controversy. Taxpayers are generally denied standing to challenge federal spending, because their interest is small compared with the interests of millions of other taxpayers.

In 1968, however, the Supreme Court carved out an exception to that principle, ruling in Flast v. Cohen that a federal taxpayer had standing to challenge a federal statute that provided federal funding for the purchase of textbooks for parochial schools on the basis that it violated the First Amendment’s prohibition of government establishment of religion.

In oral arguments on Feb. 28 in Hein v. Freedom From Religion Foundation Inc. (Case No. 06-157), U.S. Solicitor General Paul D. Clement tried to convince the justices that the U.S. Court of Appeals for the 7th Circuit, in Chicago, wrongly applied the 1968 precedent in granting standing to a Madison, Wis.-based taxpayers’ group, which had challenged the faith-based initiative.

Many state and local programs involving schools are the subject of establishment-clause challenges, and the case has potential relevance for such lawsuits.

Mr. Clement told the court that the taxpayers did not qualify for standing because, under Flast v. Cohen, they may only challenge spending by Congress—not the spending or other actions of the executive branch.

But some justices seemed confused by the murky distinctions between spending by Congress and spending by executive agencies implementing congressional directives, acting on their own, or hiring outside contractors.

Justice Antonin Scalia tried to restate the Bush administration’s position.

“If Congress enacts a program that favors religion over nonreligion … that’s bad; but if Congress enacts a perfectly valid general program and the president implements it in a fashion that favors religion over nonreligion, that’s OK, insofar as the ability of anybody to challenge it is concerned,” he said to Mr. Clement. “Is that an accurate description?”

No, said Mr. Clement, “I mean, I think that may be sort of over-inclusive and under-inclusive.”

The discussion didn’t get much clearer after that.

Justice Ruth Bader Ginsburg asked whether taxpayers would have standing if the faith-based program had been established not by executive order but by an act of Congress.

Mr. Clement said no, perhaps cognizant that after the Bush administration created the faith-based office, Congress failed to pass his proposed legislation to fund its activities outright. He said the dispute was not over the office’s existence, but over “the way that certain conferences were conducted by executive-branch officials.”

Justice Stephen G. Breyer hypothesized that Congress directed the administration to set up churches dedicated to one religion all across the country. Would taxpayers have standing to challenge that?

Calling it a “horrible example,” Mr. Clement said taxpayers would not have standing, but people of other beliefs could sue based on being personally harmed, if they felt they were discriminated against on the basis of religion.

Seeking a simple principle, Justice Breyer asked Mr. Clement, “So what’s wrong with just saying 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?”

Mr. Clement didn’t like that idea, citing the principle that individual taxpayers are not closely enough affected by such violations.

But Justice Breyer replied, “Because there is a real case or controversy, because people become terribly upset when they see some other religions getting the money from the state.”

Bagel Bites

A key concern of the justices was whether upholding the taxpayers’ standing in this case could open the door to many more lawsuits based on claims that federal executive branch actions violate the establishment clause.

When Andrew J. Pincus, the Washington lawyer representing the Freedom From Religion Foundation, a group of self-professed atheists and agnostics, arrived at the lectern, Chief Justice John G. Roberts Jr. asked whether taxpayers would have standing to sue because the marshal of the Supreme Court begins every public session by calling out, “God save the United States and this honorable court.”

Mr. Pincus said no, because the court’s opinions “require the taxpayer to identify a discrete and identifiable, non-incidental expenditure.”

“I can identify it,” Justice Roberts replied. “It’s the appropriations that Congress extends to this court that pay the salary of the marshal.”

Justice Scalia asked whether the easily identifiable costs of the president’s airplane and security detail would give taxpayers grounds to sue if the president traveled to address religious groups.

No, said Mr. Pincus, because the president always needs transportation and security.

Later, some justices challenged Mr. Pincus’ argument that executive-branch expenditures that were “incidental”—such as providing bagels for a prayer breakfast—would not give rise to establishment-clause lawsuits by taxpayers.

“So there’s not standing to challenge a presidential directive which says we are going to buy bagels for all evangelical Christian breakfasts,” Justice Scalia asked.

Mr. Pincus said there would be standing in that case, because the challenge would be to the discriminatory purchase of bagels for one religious group over others.

“You know, what could be worse than not buying bagels for a Jewish prayer breakfast,” Justice Scalia quipped, provoking laughter in the courtroom.

Besieged by hypotheticals, Mr. Pincus stated what had become obvious to all: “Standing isn’t an area, really, that is susceptible to precise definition.”

The justices are expected to decide the case by the end of their term in June.

Vol. 26, Issue 26, Page 20

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