c. 2007 Religion News Service
WASHINGTON _ When do taxpayers have the right to challenge the government’s links to religion?
The justices of the Supreme Court grappled with that question Wednesday (Feb. 28) when they heard arguments related to the constitutionality of the White House Office of Faith-based and Community Initiatives.
“It’s an Executive Branch decision to use funds in a way that’s impermissible under the Establishment Clause,” argued Washington-based lawyer Andrew J. Pincus, who represented the Freedom From Religion Foundation.
U.S. Solicitor General Paul D. Clement, arguing on behalf of the Bush administration, said the case is really about whether the White House spends too much time talking about faith-based organizations and not enough about community groups.
“If that isn’t intrusive on the Executive Branch, I don’t know what is,” he argued.
The case marks the first time the high court has considered a lawsuit involving the White House office. It’s also the first opportunity for the court’s newest justices, Chief Justice John Roberts and Associate Justice Samuel Alito, to hear a case relating to church-state separation.
The case, Hein v. Freedom From Religion Foundation, concerns the use of taxpayer money to fund the executive branch’s faith-based offices and related conferences. Challengers say this violates the First Amendment’s Establishment Clause. The White House office, created by President Bush in 2001, is directed by Jay Hein.
The justices will determine if taxpayers _ in this case, the Wisconsin-based foundation _ can sue the government. If the court determines the taxpayers have standing, the merits of their suit will be argued in lower courts.
On Wednesday, the justices fired numerous hypothetical questions at lawyers for both sides.
Associate Justice Stephen Breyer wondered if a taxpayer could challenge the government’s building of a church at Plymouth Rock to commemorate the Pilgrims. Clement said there would not be taxpayer standing in that case, though there might be other ways to challenge such a government action.
Roberts asked whether citizens could sue over the high court’s marshal saying “God save the United States and this honorable court” when justices take the bench.
“I don’t think that lawsuit could be brought,” responded Pincus.
Pincus said “incidental” government spending or an occasional meeting with ministers at a government office can be legal. He suggested that five meetings or less could be called “incidental.”
“What about 10?” asked Associate Justice Antonin Scalia. It seems federal courts are being asked to decide these issues on a “case-by-case” basis, the justice said.
The lawyers and justices discussed a 1968 case, Flast v. Cohen, in which the high court ruled that taxpayers had the right to sue when Congress provided financial aid to public and private schools, including parochial schools.
Hein, director of the faith-based office, expressed confidence about continuing his work no matter what the outcome.
“We don’t question the mission of our office or the administration of our duties,” he said in an interview. “We think that we have a very careful understanding of the church-state separation issue.”
About two dozen protesters rallied outside the court before the arguments. One held a sign that read, “How about some reason-based initiatives for a change!”
“If taxpayers cannot sue, then who can sue?” asked Fred Edwords, communications director for the American Humanist Association. “We want to be able to do more than throw the bums out every two years.”
(OPTIONAL TRIM FOLLOWS)
After the arguments, Dan Barker, a plaintiff in the case and co-president of the Freedom From Religion Foundation, said his group feels the Bush administration is “more than overly friendly toward religion.”
Annie Laurie Gaylor, another plaintiff and co-president, said the group has about 9,000 members with about 500 joining in the last week in the wake of publicity over the case.
Melissa Stee contributed to this report.
DSB/LFEND
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