Establishment Clause redux: Argument 2/28/07
on Feb 27, 2007 at 12:12 pm
Another skirmish in America’s culture war reaches the Supreme Court on Wednesday, in a case that some are trying to turn into a fundamental reexamination of the meaning of the Constitution’s Establishment Clause. The Justice Department does not join in that effort, but it is advocating a bold position on its own, urging the Court to bar any taxpayer from filing any lawsuit to challenge the way the Executive Branch spends public money. These provocative maneuvers seem sure to enliven the Justices’ interest as they hear Hein v. Freedom From Religion Foundation for an hour Wednesday, starting shortly after 10 a.m.
The case has the disarming appearance of being merely a controversy over “standing” — that is, who has the right to sue in federal courts to attack what they consider a government action that injures them? And, even more narrowly, it is about “taxpayer standing” — when can a taxpayer show enough potential injury from the use of public funds to be allowed to sue for a remedy?
But the briefs in the case have elevated it to a possible reexamination, going back to the Founding era, of the separation of powers of the national government, and what the original generation meant in barring government from “esatblishment” of religion as part of the First Amendment. Both sides invoke James Madison and Thomas Jefferson, and move on from there to canvass both antique and modern conceptions of government aid to religion.
Overhanging the case are fundamental constitutional questions about one of the most controversial of President Bush’s domestic programs — the White House’s eager steering of federal funds to “faith-based organizations” to pay for their social programs. While there is no way the core constitutionality of the “faith-based initiative” will be resolved in the Hein case, the outcome could well advance — or stifle — the effort to raise that issue.
The case will have seasoned and respected advocates at the podium — Solicitor General Paul Clement appearing first, representing Jay F. Hein, director of the White House Office of Faith-Based and Community Initiatives, and Andrew J. Pincus of Washington’s Mayer, Brown, Rowe & Maw, representing the Freedom From Religion Foundation, Inc., a “separationist” group, and three of its members. They won in lower courts the right as taxpayers to challenge the White House’s use of public funds in staging regional “faith-based” conferences to encourage religious groups to seek public funding.
The Seventh Circuit ruled in January of last year that, as long as some congressional appropriations are being used to fund conferences that are claimed to be religiously motivated, the taxpayers had a right to sue. The case has not yet gone to trial because the Solicitor General took the “taxpayer standing” issue to the Supreme Court. The Justices agreed on Dec. 1 to hear it.
As a general rule, taxpayers do not have the right, in their role as taxpayers, to challenge the way the federal government spends money. The Court made that clear in 1923 in the case of Frothingham v. Mellon. Because the federal courts can only hear live controversies, and because someone has to claim a direct injury by government before there can be a controversy, taxpayers seldom can show that they personally would suffer from a government expenditure.
The Court, however, made an exception to this ban on taxpayer standing in the 1968 decision in Flast v. Cohen. There, the Court ruled that taxpayers could sue to challenge Congress’ use of its taxing and spending power, provided that the spending of public money not in a generalized way, but through a specific program that favors or promotes religion. The Seventh Circuit ruled in the Hein case that this did not limit taxpayer standing to cases where Congress has specifically earmarked money for a challenged program that is claimed to violate the Establishment Clause. The Circuit Court allowed the lawsuit to go forward to make the claim that the White House was violating that Clause by using money, not earmarked by Congress, but appropriated to the Executive Branch without any strings attached.
The Hein case, as it reaches the Court, appears to offer the Justices three options as they analyze the Flast v. Cohen precedent — confine taxpayer standing to programs using funds specifically earmarked by Congress (the Justice Department position), reading it as the Seventh Circuit did in this case (the challengers’ position), or abandoning the precedent altogether and thus barring any taxpayer lawsuit claiming an Establishment Clause violation (the position of a group of states and several amici lined up on the government’s side).
The government’s brief argues that taxpayers should not be allowed to sue to challenge Executive Branch actions under the Establishment Clause, arguing that the Seventh Circuit ruling “would transform the doctrine of taxpayer standing into a roving license for any one of the more than 180 million taxpayers in the United States to challenge any action of the Executive Branch that offends that individual’s own view of the establishment Clause’s proscriptions.” That, says the federal brief, would mean a “dramatic expansion of judicial power,” violating the separation of powers doctrine.
Among the amici urging the Court simply to overrule Flast v. Cohen are 12 states, which have programs of their own fostering faith-based initiatives. They and several religious groups argue that the Flast decision is based on a flawed reading of the Establishment Clause; that Clause, they argue, confers no rights upon any individual, so there can never be any individual injury that an Establishment Clause challenge could remedy. The Clause, they contend, is merely a “structural” restraint on Congress. The argument that the Clause confers no individual rights is a position that Justice Clarence Thomas has embraced, arguing that the Clause cannot be used to vindicate any individual’s rights.
Some of the amici express concern that, if the Court does not put a halt to taxpayer standing in this case, there will be a flood of challenges in the federal courts to faith-based programs around the country. A group that works to gain public support for such programs, called We Care America, has called for the Court actually to rigorously narrow the right to bring any Establishment Clause case, by a taxpayer or anybody else.
The challengers denounce the Justice Department for presenting the case in “cataclysmic terms,” and argues that the Department position would “dramatically constrict current law” by “exempting all expenditures of discretionary funds and every expenditure other than grants to religious organizations, thereby precluding a broad range of taxpayer claims seeking redress for the precise injury that was at the heart of the Framers’ concern about government support of religion.”
The claim at issue here, this brief says, does not involve a broad challenge to every government official’s ability to talk about religion, but about White House funding and sponsorship of regional conferences that “are designed to promote religious community organizations over secular ones.” Using strong language of its own, the challengers’ brief says that the government argument “would produce an exclusion of staggering proportions, exempting a broad range of unconstitutional expenditures.”
Supporting that side are a group of law scholars and legal and religion historians, arguing that the Founders would not have been indifferent to threats of religious establishment by the Executive Branch. Other civil liberties groups and religious organizations vigorously defend the Flast precedent, and inveigh against the government’s attempt to take Executive Branch spending entirely out of reach of taxpayer lawsuits. Others argue that, even if the Court were to focus primarily upon the actions of Congress, rather than the Executive Branch, it would find that Congress has collaborated with the Bush Administration faith-based program and regularly provides funds to support it.
The Court is expected to decide the case before recessing for the summer in late June.
(NOTE: The blog has been informed that Andrew Pincus, in this argument, will be representing the Foundation through the Yale Supreme Court Advocacy Clinic, which he helps direct, and tjat tje brief was written by students in the clinic, under his supervision.)
