Supreme Court takes up church-state case

President Bush's faith-based initiative is a signature program of his administration. But not all Americans share the president's belief that the government should work in close partnership with religious organizations willing to perform nonreligious public services, like running homeless shelters or drug counseling programs.

Wednesday, the US Supreme Court takes up a case that examines to what extent those opponents have legal standing to file federal lawsuits alleging that the White House's faith-based initiative amounts to unconstitutional entanglement of church and state.

The case stems from a 2002 lawsuit filed by a Wisconsin-based group called the Freedom From Religion Foundation. Members of the group filed the suit as taxpayers who objected to having their tax money used to support religion.

Although the case revolves around the esoteric issue of taxpayer standing to sue, analysts say the case could foreshadow a shift in the Supreme Court's church-state jurisprudence. It marks the first opportunity for the high court to rule in a major religion case since the retirement of key swing voter Sandra Day O'Connor and the addition of Chief Justice John Roberts and Associate Justice Samuel Alito.

"To evaluate the importance of the case you have to look at ... what might come out of it," says Ira Lupu, a professor at George Washington University Law School and church-state scholar.

In opposing the suit in 2002, government lawyers said the Freedom From Religion Foundation had no authority to wage such a legal battle since none of the plaintiffs were able to show that they had suffered a direct and personal injury. It wasn't enough to object as taxpayers.

Friend-of-the-court briefs filed in the case highlight starkly different visions of religious liberty in America. On one side are those who favor less or no contact between government and religion. On the other side are those who believe that separation between church and state has gone too far, triggering government hostility toward religion and the religious.

In most instances taxpayers lack legal standing to sue the government merely because they object to how the government is spending tax dollars. Instead, the courts require that someone suffer a direct and personal injury that entitles them to sue. This requirement of legal standing helps prevent the courts from becoming a quasi-legislature where policy arguments are debated rather than a forum to decide specific legal disputes.

The same principle applies in most constitutional cases. If the government violates a constitutional right, like the Eighth Amendment's prohibition on cruel and unusual punishment, the injured individual can sue in court to hold the government accountable for its abuses.

But what happens when the alleged constitutional violation involves the First Amendment's establishment clause that prohibits the government from promoting religion?

"The establishment clause is different. It is designed to limit the government from doing things which tend to favor or help people without necessarily hurting anybody in any obvious material way," Professor Lupu says. "Because of that, the rules about who can sue to complain about alleged violations of the clause are unusually important."

If you follow the normal rules that you have to be injured in some direct way before you can complain about what the government has done, the establishment clause would never get enforced in the courts, Lupu says. "The government would put up crèches and crosses and menorahs and would spend money on religion, and nobody could challenge it because nobody is hurt in obvious ways by those kinds of activities."

Had the courts consistently enforced the rule on standing, establishment-clause cases filed by ordinary Americans would be rare to nonexistent. But in 1968 the Supreme Court carved out an exception that allows taxpayers to file establishment-clause lawsuits challenging congressional spending that benefits religion.

It is that 1968 exception that is at the center of Hein v. Freedom From Religion Foundation. The Hein in the case is Jay Hein, director of the White House Office of Faith-Based and Community Initiatives.

The Bush administration is arguing that the 1968 exception only permits taxpayer lawsuits challenging appropriations by Congress that raise church-state concerns. The portion of the faith-based initiative under challenge is an activity of the executive branch that does not involve outlays of government money earmarked to religious groups.

The lawsuit challenges "executive branch activities, not a congressional program and not any financial disbursements to outside entities," writes US Solicitor General Paul Clement in his brief to the court.

"Only Congress can extract and spend 'tax money' in aid of religion, and only challenges to such exercises of congressional power will support taxpayer standing," Mr. Clement writes.

Lawyers for the Freedom From Religion Foundation counter that the 1968 exception applies to alleged establishment-clause violations by the government – not just Congress.

"Given their knowledge of English history, the framers [of the Constitution] were well aware of the potential for abuse of executive power in the area of religion, which included coerced payment of funds that were used by the monarch to aid religion," writes Richard Bolton of Madison, Wis., in his brief to the court on behalf of the Wisconsin group. "There simply is no basis for concluding that they were less concerned about exercises of executive discretion than about the actions of Congress."

A more freewheeling debate over the case takes place in friend-of-the-court briefs. Some urge the high court to eliminate the 1968 exception. Others want the court to expand the 1968 exception to foster greater public oversight and involvement in policing the ever-shifting line between church and state.