Taxpayers should not have the legal right to sue even if the federal government undertakes a program of building houses of worship with public money, a Bush administration lawyer told the Supreme Court Feb. 28.
U.S. Solicitor General Paul D. Clement was arguing before the high court in a case dealing with legal "standing" — the right to sue. Clement asserted that a group of taxpayers in Wisconsin should not have the right to sue President George W. Bush over his use of general operating funds to promote the "faith-based" initiative.
Several justices attempted to pin down Clement on the question of when taxpayers can sue. Justice Stephen G. Breyer asked Clement if a taxpayer should have the right to challenge a law that commemorated the Pilgrims "by building a government church at Plymouth Rock where we will have the regular worship in the Puritan religion?"
"I would say no," Clement replied.
Breyer pressed further, asking about a law that required the government to build churches "all over America" that represented a single denomination.
"Nobody could challenge it?" he asked.
Again Clement replied, "There would not be taxpayer standing."
At this point, Chief Justice John G. Roberts tried to help Clement out by asserting that people opposed to government-built churches would still have the legal right to sue simply by asserting that they were victims of religious discrimination.
Clement agreed, but it’s unclear if other justices hold this view. During the argument, Justice Antonin Scalia ridiculed the idea that people should be able to sue over government promotion of religion simply because it offends them.
The case at issue, Hein v. Freedom From Religion Foundation, concerns a legal challenge to Bush’s allocation of tax money to pay for conferences promoting the faith-based initiative. The lawsuit was brought by three officers of the Freedom From Religion Foundation in Madison, Wis.
A U.S. district court threw out the suit, holding that taxpayers do not have the right to challenge executive department expenditures. But on appeal, the 7th U.S. Circuit Court of Appeals reinstated the case. It was then accepted for review by the Supreme Court.
Several justices seemed clearly sympathetic to the Bush administration. Justice Samuel Alito lobbed several softball questions at Clement, leading the government lawyer at one point to actually thank Alito for a friendly inquiry.
In addition, Justice Anthony Kennedy expressed the view that allowing lawsuits against the executive branch could tie the administration’s hands and force officials to spend too much time in court.
In general, taxpayers do not have the right to sue over government spending with which they disagree. However, the Supreme Court in 1968 carved out an exception for cases dealing with the "establishment of religion" in Flast v. Cohen. The justices reasoned that such lawsuits should be permissible because the founders were opposed to forced support for religion.
Several Religious Right groups filed legal briefs urging the court to overturn Flast and deny the right of taxpayers to file suits alleging violations of the "establishment" part of the First Amendment. It is unclear if the court will go that far.
Andrew J. Pincus, the attorney who argued the case on behalf of the Freedom From Religion Foundation, faced especially aggressive questioning from Roberts, Alito and Scalia.
Pincus was interrupted so often that he barely had time to make his argument before the questions were flying. He asserted that taxpayers should be allowed to challenge government spending that furthers religion — unless religion is an "incidental" part of a larger activity. Pincus argued that such a rule is in place now, and it protects government from frivolous lawsuits.
Under this standard, Pincus said, a taxpayer would not be able to challenge the president’s appearance at a private prayer breakfast but would have the right to challenge an executive department action hiring chaplains to evangelize the population.
Americans United filed a legal brief in the case urging the Supreme Court to allow taxpayer standing. Joining the brief were the American Civil Liberties Union Foundation, the Anti-Defamation League, the Baptist Joint Committee for Religious Liberty and People For the American Way Foundation.
A decision in the case is expected by the end of June.