WASHINGTON — The Supreme Court wrestled today with the question of whether
taxpayers have the right to challenge the White House's aggressive promotion of
federal financial aid for religious charities.
At issue is whether a Wisconsin-based group of atheists and agnostics have
legal standing, by virtue of being taxpayers, to bring their complaint in the
federal court system.
Taking one extreme, Justice Stephen Breyer asked a lawyer for the White House
whether a taxpayer would be able to challenge a law in which Congress sets up a
church at Plymouth Rock.
"I would say no," responded Solicitor General Paul D. Clement, but he added
that such a church could be challenged in other ways — just not on the basis
that a taxpayer has been injured. Clement is representing the Bush
administration, which is trying to prevent the taxpayer suit over its aggressive
promotion, through the White House Office of Faith-Based and Community
Initiatives, of federal financial aid for religious charities.
Taking the opposite extreme, Justice Antonin Scalia asked a lawyer for the
Wisconsin group, Andrew Pincus, whether taxpayers would be able to sue over the
use of security money for a presidential trip where religion is discussed.
Pincus said that taxpayers would not have standing to do so, arguing that in
such a case the money spent would be "incidental," and not central to the
The case may turn on a 1968 Supreme Court decision — Flast v. Cohen —
that created an exception to the general prohibition on taxpayer challenges to
the government spending of tax revenue. In an 8-1 decision authored by Chief
Justice Earl Warren, the Court allowed taxpayers to challenge congressional
spending for private religious schools.
But the Bush administration says spending for speeches and meetings of
executive branch officials does not involve spending federal money outside the
government and therefore taxpayers are not entitled to challenge it.
In the current case, the Bush administration organizes conferences where
faith-based organizations are allegedly singled out as being particularly worthy
of receiving federal money.
The group challenging the Bush administration, called the Freedom From
Religion Foundation Inc., characterizes the White House's initiative as a
singling out of faith-based organizations to the exclusion of other
Last year, a federal appeals court allowed the group to pursue its lawsuit.
Instead of going through Congress, President Bush issued executive orders to
create the White House office and similar centers in 10 federal agencies during
his first term.
One of the goals Bush set for these offices was to help religious and
community groups compete for federal funding to fight poverty, substance abuse
and other social problems.
The 7th U.S. Circuit Court of Appeals in Chicago sided with the anti-religion
group, and the Justice Department wants the Supreme Court to overturn the lower
The case argued today is Hein
v. Freedom From Religion Foundation Inc., 06-157.