Church-state case heard

Justices are urged to shield Bush's `faith-based initiative' from lawsuits

March 01, 2007|By David G. Savage | David G. Savage,LOS ANGELES TIMES

Washington -- In a closely watched church-state separation case, a Bush administration lawyer urged the Supreme Court yesterday to shield the president's "faith-based initiative" from legal challenges in court.

U.S. Solicitor General Paul Clement said taxpayers who believe the White House is unconstitutionally promoting religion should not be accorded legal standing to sue in court. It would be too "intrusive on the executive branch" to permit lawsuits contesting the way the president and his advisers conduct their affairs, he said.

The case involves Freedom From Religion, a Wisconsin group that sued in 2004 to challenge the faith-based initiative on First Amendment grounds. The group said White House officials were using public money to help church-based groups win grants and contracts.

It is the first major religion case to come before the high court since President Bush's two appointees took their seats. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. sounded as though they sided with the administration.

The nine justices seemed to be closely split during the hourlong argument, however. If they accept the administration's view, the ruling could make it much harder for critics to sue if officials use public money to promote religion. If they rule in favor of Freedom From Religion, the group would still have to prove its case in court.

Roberts made clear that he thought these claims should be thrown out of court. If taxpayers can sue the government whenever an official invokes God or religion, why couldn't anyone "sue our marshal for standing up and saying `God save the United States and this honorable court'?" asked Roberts, citing the invocation heard each day when the justices enter the court.

Justice Antonin Scalia appeared to agree. Otherwise, he said, taxpayers could sue the president for having spent tax money to promote religion simply because he flew across the country to give a speech to a religious group. "The whole trip is about religion," Scalia said, but "it really doesn't make any sense" to permit lawsuits challenging this spending.

Taking the opposite view, Justice Stephen G. Breyer said courts and lawsuits are needed to enforce the separation of church and state. "People become terribly upset when they see some other religion getting the money from the state" to subsidize their faith, he said.

"We have a pretty clear, simple rule," he said, that allows lawsuits "when the government spends money in violation of the establishment clause." The First Amendment says "Congress shall make no law respecting an establishment of religion."

The issue of who has standing is technical but crucial. It can determine whether the government's conduct can be challenged in court.

Usually, people must say they have suffered a personal injury of some sort before they are allowed to sue in court.

But nearly 40 years ago, under Chief Justice Earl Warren, the Supreme Court made an exception for challenges to government spending that promotes religion. Taxpayers may sue to object if tax money is used to favor religion, the court said in Flast vs. Cohen.

Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation, said in an interview with the Associated Press that there was no way to challenge the White House initiative other than a taxpayer lawsuit.

"Because who could sue? I can't even conceive of another entity that would have standing," she said. "It's pretty much conceded if we [as taxpayers] can't sue over this, nobody can."

Clement urged the court to narrow the exception considerably. In one exchange, he said taxpayers should not be allowed to sue even if officials use tax money to build a church.

The Bush administration said Freedom From Religion's suit should be thrown out on grounds that such challengers did not have standing to sue in court.

The U.S. appeals court in Chicago allowed the suit to go forward. In a 2-1 ruling, Judge Richard Posner said plaintiffs sought to show that the White House-sponsored meetings were "propaganda vehicles for religion."

Before the suit could be heard, the Supreme Court agreed to hear the administration's appeal filed on behalf of Jay Hein, who directs the White House Office of Faith-based and Community Initiatives.

The case, Hein v. Freedom From Religion, will be decided in several months.

David G. Savage writes for the Los Angeles Times.

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