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Court appears divided in faith-based case

By Tony Mauro
First Amendment Center legal correspondent

  • Oral argument transcript

    WASHINGTON — It was the first church-state-related case under debate by the newly constituted Roberts Court.

    But in oral arguments yesterday, Supreme Court justices seemed no less divided or perplexed by the First Amendment issues and precedents involved than the Rehnquist Court — a court which, just two terms ago, approved one Ten Commandments display on public property but struck down another.

    In the case of Hein v. Freedom From Religion Foundation, the issue was whether taxpayer status alone gives someone standing to challenge government action as a violation of the First Amendment’s establishment clause. The action in question was a series of conferences funded by President Bush’s faith-based initiative, which in the view of the Wisconsin-based foundation of atheists and agnostics, favored religious organizations over non-religious groups.

    In the 1968 Supreme Court ruling Flast v. Cohen, the Warren Court said that because of the unique history of the establishment clause, taxpayers do have standing when they make establishment-clause challenges — an exception to the usual rule that demands litigants suffer a direct injury before they can sue. That high hurdle for standing was set to limit frivolous lawsuits by taxpayers who simply dislike how an infinitesimal fraction of their tax dollars is being spent.

    The Court in Flast invoked the Framers’ reason for creating the establishment clause in the first place: to prevent government from taxing and spending to favor one religion over another, even if only “three pence” of the taxpayer’s money is used for that purpose, in the words of James Madison. Justice David Souter invoked Madison’s words more than once, quaintly pronouncing it “thruppence” as he appeared to come out in favor of upholding Flast as is.

    Justice Stephen Breyer also seemed ready to uphold the Flast exception, arguing that establishment-clause disputes, more so than in other areas of the law, provoke deep emotions and controversy. “People become terribly upset when they see some other religion getting money from the state,” said Breyer, echoing concerns he has voiced in the past about religious strife worldwide.

    Nonetheless, after the hourlong arguments it seemed possible, if not probable, that a majority of the Court would cut back on the Flast exception, but just how far was hard to predict. As is often the case in the new Court, Justice Anthony Kennedy may be the swing vote.

    One thing was certain: the Court’s newest members, Chief Justice John Roberts and Justice Samuel Alito, were skeptical of Flast, and not happy with the state of the Court’s religion-clause jurisprudence.

    One revealing exchange came after Solicitor General Paul Clement came under a barrage of questions that forced him to make the startling concession that, under his view of the issue of standing, the federal government could build a nationwide network of official churches without fear of being sued by taxpayers on the basis that their tax dollars are being misused. The churches could be challenged on other grounds by other parties — for instance by other denominations claiming discrimination — but Clement said taxpayer status alone was not enough.

    Throwing Clement a lifeline, Alito asked him, “Are you arguing that these lines that you are drawing make a lot of sense … or are you just arguing that this is the best that can be done … within the body of precedent that the Court has handed down in this area?”

    Clement replied, “The latter, Justice Alito. And I appreciate the question.”

    Amid laughter, Justice Antonin Scalia said, “I’ve been trying to make sense out of what you’re saying.”

    Clement shot back, “And I’ve been trying to make sense out of this Court’s precedents.”

    Justice John Paul Stevens interjected, “Do we think we have a duty to follow precedents that don’t make any sense?”

    Clement had argued that the Flast exception allows taxpayer standing only to those challenging congressional spending that benefits an outside party or church — not in cases like the faith-based initiative, in which the executive branch, acting on its own, spends funds for government programs such as the conferences at issue. Broadening the exception to cover executive-branch activities, Clement said, would threaten the separation of powers and invite lawsuits every time a government official makes a religious reference.

    But several justices, including Scalia, seemed to think that was an artificial distinction, especially since executive-branch actions are hard to separate from the congressional appropriations that fund them.

    In the end, Clement urged the justices to overturn Flast altogether if they cannot find a way to narrow or clarify it, to prevent a flood of trivial litigation against all kinds of government actions. Andrew Pincus, the advocate for the foundation, pointed out that in the years since Flast, no such flood has occurred, but the justices still seemed worried.

    Roberts, nodding toward the Court’s marshal, Pamela Talkin, asked whether, under the foundation’s theory, a taxpayer could sue her for saying “God save the United States and this honorable Court” at the start of Court sessions.

    Scalia offered another hypothetical, asking whether taxpayers could sue when Air Force One and Secret Service agents are used in the course of a presidential trip to a religious event.

    More generally, Justice Kennedy also worried aloud that allowing broad taxpayer standing could result in courts “supervising the White House and what it can say — who it can talk to. And it seems to me that’s quite intrusive.”

    Pincus said taxpayer standing would not extend to religious activities that are “incidental” to government expenditures. He offered his own hypothetical: government funds “paying for bagels at a prayer breakfast” would not, he suggested, trigger a valid lawsuit.

    Scalia later knocked down that hypothetical, sarcastically asserting that if the bagels went only to prayer breakfasts for evangelical groups, someone who is Jewish might feel that is not incidental or trivial at all: “You know, what could be worse than not buying bagels for a Jewish prayer breakfast?”

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