WASHINGTON (BP)–The federal government argued before the U.S. Supreme Court Feb. 28 that taxpayers do not have legal standing to challenge the Bush administration’s faith-based initiative.
The justices challenged lawyers for both sides during the hour-long arguments in a case that involves the First Amendment’s prohibition on government establishment of religion but hinges on whether citizens may contest in court an executive branch program.
The high court’s doctrine for more than 80 years has been that taxpayers may not challenge the federal government’s use of funds. The justices made an exception in a 1968 case, Flast v. Cohen, ruling taxpayers may sue in establishment clause cases involving Congress’ taxing and spending authority.
In the case before the court, the justices will determine if a suit brought by the Freedom From Religion Foundation (FFRF) against the White House’s faith-based initiative may go forward. The program, which was inaugurated by President Bush after he took office in 2001, is designed to free religious organizations to seek government grants for the provision of social services to the needy. The FFRF is especially concerned about the White House conferences that educate faith-based and other organizations on applying for federal grants.
Solicitor General Paul Clement told the high court the Flast v. Cohen opinion “recognized narrow circumstances” but did not permit “taxpayer standing for all establishment clause challenges.” The court’s rulings since then have demonstrated the narrowness of that ruling, making it clear the exception applied only to congressional actions, he said.
Washington lawyer Andrew Pincus, representing the FFRF, argued the Flast decision was not limited to just the specific expenditure of funds as determined by Congress.
There is no historical foundation for claiming decisions by the executive branch “are somehow different and insulated with respect to spending,” Pincus said. “It’s the spending of the same threepence, and if history indicates anything, it’s that concerns about establishment were focused just as much on the king as on the Parliament in terms of the history that the framers understood.”
The court — especially Chief Justice John Roberts and Associate Justices Antonin Scalia and Stephen Breyer — questioned the lawyers frequently.
At the start, the justices sought clarification on the government’s position, and Clement seemed to be unable to satisfy them.
Finally, Associate Justice Samuel Alito asked Clement, “[A]re you … arguing that these lines that you’re drawing make a lot of sense in an abstract 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?”
“The latter, Justice Alito,” Clement said, producing laughter. The next quick exchange resulted in more laughter.
“Why didn’t you say so?” Scalia said. “I’ve been trying to make sense out of what you’re saying.”
Clement replied, “Well, and I’ve been trying to make sense out of this court’s precedents.”
When Pincus said the funds do not have to go outside the government to provide taxpayers with standing, Roberts told him, “I don’t understand under your theory why any taxpayer couldn’t sue our marshal for standing up and saying, ‘God save the United States and this honorable court.’ Her salary comes from Congress.”
The court’s marshal makes that statement as part of calling the courtroom to order each time the justices arrive for a session.
Pincus said he did not think a taxpayer would have standing in such a case, because he would not be able “to identify a discrete and identifiable non-incidental expenditure.”
Associate Justice Anthony Kennedy expressed concern the judicial branch would be intruding too much on the executive branch if the justices accepted Pincus’ view.
“It seems to me unduly intrusive for the courts to tell the president that [he] cannot talk to specific groups to see if they have certain talents that the government may use to make sure that all of their energies are used properly by the federal government,” Kennedy said. “[I]t seems to me that there’s a standing concern here, too, that we would be supervising the White House and what it can say, … who it can talk to.”
The White House’s faith-based initiative has expanded since its inception, with more than $2.1 billion in competitive social service grants being made to faith-based groups in fiscal year 2005, the third consecutive year there was an increase in such grants. The White House has sponsored 28 conferences to inform faith-based organizations about grants through the initiative. Eleven executive branch agencies have faith-based offices.
A federal judge in Wisconsin had ruled the FFRF and three people affiliated with it did not have standing to bring a legal challenge on establishment clause grounds. A panel of the Seventh Circuit Court of Appeals, based in Chicago, overturned the decision, determining in a 2-1 decision the organization could go forward with its suit.
A decision in Hein v. FFRF is expected before the court adjourns in early summer. Jay Hein is director of the White House’s Office of Faith-based and Community Initiatives.
Among those signing on to friend-of-the-court briefs in support of the FFRF were the Baptist Joint Committee for Religious Liberty, Americans United for Separation of Church and State, American Atheists Inc., American Civil Liberties Union and People for the American Way.
The Christian Legal Society, American Center for Law and Justice and 12 states were among those filing briefs on the government’s side.
Before the arguments, supporters of the FFRF held a rally in front of the Supreme Court building. Among participating organizations were the American Humanist Association, American Atheists and Secular Coalition for America.
The FFRF, which is based in Madison, Wis., says on its website it has more than 8,000 members, making it the largest group of atheists and agnostics in North America.