Law & Courts

Court Wrestles With Taxpayer Suit on ‘Faith’ Initiative

By Andrew Trotter — March 06, 2007 5 min read
  • Save to favorites
  • Print

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.

A version of this article appeared in the March 07, 2007 edition of Education Week as Court Wrestles With Taxpayer Suit on ‘Faith’ Initiative

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Personalized Learning Webinar
Personalized Learning in the STEM Classroom
Unlock the power of personalized learning in STEM! Join our webinar to learn how to create engaging, student-centered classrooms.
Content provided by Project Lead The Way
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Student Well-Being Webinar
Students Speak, Schools Thrive: The Impact of Student Voice Data on Achievement
Research shows that when students feel heard, their outcomes improve. Join us to learn how to capture student voice data & create positive change in your district.
Content provided by Panorama Education
School & District Management Live Online Discussion A Seat at the Table: How Can We ‘Disagree Better’? A Roadmap for Educators
Experts in conflict resolution, psychology, and leadership skills offer K-12 leaders skills to avoid conflict in challenging circumstances.

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Court Upholds Injunction on Arizona Transgender Sports Ban for Young Athletes
A federal appeals court upholds an injunction against an Arizona law, allowing two transgender girls to compete on female teams.
3 min read
Arizona State Superintendent of Public Instruction Tom Horne, left, a Republican, takes the ceremonial oath of office from Arizona Supreme Court Chief Justice Robert Brutinel, right, as wife Carmen Horne, middle, holds the bible in the public inauguration ceremony at the state Capitol in Phoenix, Thursday, Jan. 5, 2023.
Arizona schools chief Tom Horne, left, takes the ceremonial oath of office at the state Capitol in Phoenix in January 2023. The Republican is the lead defendant in a lawsuit filed by two transgender girls challenging the Save Women's Sports Act, which bars transgender women and girls from female sports.
Ross D. Franklin/AP
Law & Courts How Moms for Liberty's Legal Strategy Has Upended Title IX Rules for Schools
The grassroots group's tactic is confounding schools across the country trying to keep up with which Title IX rules apply to them.
7 min read
Moms for Liberty co-founder Tina Descovich speaks before Republican presidential nominee former President Donald Trump at the Moms for Liberty annual convention in Washington, Friday, Aug. 30, 2024.
Moms for Liberty co-founder Tina Descovich speaks before Republican presidential nominee former President Donald Trump addressed the group's annual convention in Washington on Aug. 30. One popular session was about Moms for Liberty's lawsuit challenging the Biden administration's Title IX regulation.
Mark Schiefelbein/AP
Law & Courts Supreme Court Leaves Biden's Title IX Rule Fully Blocked in 26 States
The court's action effectively leaves in place broad injunctions blocking the entire regulation in 26 states and at schools in other states.
5 min read
The Supreme Court building is seen on Thursday, June 13, 2024, in Washington.
The Supreme Court building is seen on Thursday, June 13, 2024, in Washington.
Mark Schiefelbein/AP
Law & Courts Iowa's Book Ban Is Reinstated by Appeals Court But Case Against It Will Continue
The Iowa law bars books depicting sex in school libraries and discussions of sexual orientation and gender identity in preK-6.
4 min read
An LGBTQ+ related book is seen on shelf at Fabulosa Books a store in the Castro District of San Francisco on Thursday, June 27, 2024. "Books Not Bans" is a program initiated and sponsored by the store that sends boxes of LGBTQ+ books to LGBTQ+ organizations in conservative parts of America, places where politicians are demonizing and banning books with LGBTQ+ affirming content.
An LGBTQ+ book section is seen at Fabulosa Books, a store in San Francisco, on June 27, 2024. A federal appeals court has reinstated an Iowa law that prohibits books depicting sex from public school libraries. Challengers claim the law has led school districts to remove scores of books out of fear of violating the law.
Haven Daley/AP