Thursday, March 01, 2007

An Executive Power of Establishing A Particular Religion?

Court hears religion case

Los Angeles Times

WASHINGTON — In a closely watched church-state separation case, a Bush administration lawyer urged the Supreme Court on Wednesday to shield the president's "faith-based initiative" from court challenges.

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 how the president and his advisers conduct their affairs, he said.

The case involves a Wisconsin group called Freedom From Religion that sued in 2004 to challenge the "faith-based initiative" on First Amendment grounds. The group said the 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 Supreme Court since President Bush's two appointees — Chief Justice John Roberts and Justice Samuel Alito — took their seats.

Overall, the nine justices seemed split during the hourlong argument. If they adopt the administration's view, the ruling could make it harder for critics to sue officials who use public money in ways that support religion. If the justices rule in favor of Freedom From Religion, the group would still have to prove its case in court.

Roberts made clear he thought the group's 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.

But Justice Stephen 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.

Normally, people must say they have suffered a personal injury of some sort before they can sue in court. For example, taxpayers cannot sue to stop the war in Iraq simply because they disagree with it. But nearly 40 years ago, the court under then-Chief Justice Earl Warren made an exception for challenges to government spending that promotes religion.

A coalition of liberal groups filed a friend-of-the-court brief that urged the court to reject the administration's argument.

"Tax dollars may not be used to subsidize religious activity," said Steven Shapiro, the American Civil Liberties Union's legal director. "Barring taxpayers from enforcing this fundamental principle in court would effectively license the government to violate the Constitution."

The case will be decided in several months.

(02-28) 19:08 PST WASHINGTON (AP) --

The Supreme Court wrestled Wednesday with the question of whether taxpayers have the right to challenge the White House's aggressive promotion of federal financial aid for religious charities.

At issue is whether a Wisconsin-based group of atheists and agnostics have legal standing, by virtue of being taxpayers, to bring their complaint in the federal court system.

Taking one extreme, Justice Stephen Breyer asked a lawyer for the White House whether a taxpayer would be able to challenge a law in which Congress sets up a church at Plymouth Rock.

"I would say no," responded Solicitor General Paul D. Clement, but he added that such a church could be challenged in other ways — just not on the basis that a taxpayer has been injured. Clement is representing the Bush administration, which is trying to prevent the taxpayer suit over its aggressive promotion, through the White House Office of Faith-Based and Community Initiatives, of federal financial aid for religious charities.

Taking the opposite extreme, Justice Antonin Scalia asked a lawyer for the Wisconsin group, Andrew Pincus, whether taxpayers would be able to sue over the use of security money for a presidential trip where religion is discussed.

Pincus said that taxpayers would not have standing to do so, arguing that in such a case the money spent would be "incidental," and not central to the issue.

The case may turn on a 1968 Supreme Court decision that created an exception to the general prohibition on taxpayer challenges to the government spending of tax revenue. In an 8-1 decision by Chief Justice Earl Warren, the court allowed taxpayers to challenge congressional spending for private religious schools.

But the Bush administration says spending for speeches and meetings of executive branch officials does not involve spending federal money outside the government and therefore taxpayers are not entitled to challenge it.

In the current case, the Bush administration organizes conferences where faith-based organizations are allegedly singled out as being particularly worthy of receiving federal money.

The group challenging the Bush administration, called the Freedom From Religion Foundation Inc., characterizes the White House's initiative as a singling out of faith-based organizations to the exclusion of other organizations.

Last year, a federal appeals court allowed the group to pursue its lawsuit. Instead of going through Congress, President Bush issued executive orders to create the White House office and similar centers in 10 federal agencies during his first term.

One of the goals Bush set for these offices was to help religious and community groups compete for federal funding to fight poverty, substance abuse and other social problems.

The 7th Circuit U.S. Court of Appeals in Chicago sided with the anti-religion group, and the Justice Department wants the Supreme Court to overturn the lower court.

The case is Hein v. Freedom From Religion Foundation Inc., 06-157.

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