Supreme Court Set To Hear Arguments in Key Church-State Case

By Jennifer Siegel

Published February 23, 2007, issue of February 23, 2007.
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The Supreme Court is set to hear arguments in a case that Jewish organizations say could reduce oversight of the executive branch and limit the ability of advocacy groups to bring church-state legal challenges.

The case, known as Hein v. Freedom From Religion Foundation, Inc. and slated to be heard February 28, pits the Bush administration against church-state watchdog groups alleging that the White House Office of Faith-Based and Community Initiatives and other similar executive branch programs have impermissibly favored religious organizations. That substantive question has been largely set aside since the original lawsuit was filed in 2004, because the Western Wisconsin District Court ruled that the plaintiff, the Freedom From Religion Foundation, did not have standing to sue the federal government over the alleged executive branch violations.

In practical terms, the Supreme Court’s upcoming deliberations are expected to determine whether taxpayers may challenge executive-spending decisions under the Establishment Clause, if the behavior at issue is not specifically legislated by Congress and does not involve the disbursement of government money to outside groups or individuals. More broadly, constitutional experts say, the case could influence the balance of power among the president, the courts and Congress.

The government’s argument is that “the executive stands on its own and is not subject to close checking by Congress and by the courts,” said Marc Stern, general counsel for the American Jewish Congress, which has filed a friend-of-the-court brief in support of the foundation. “If the government’s position prevails here, you will have a reinforcement of the tendency, which this administration has nurtured, of a very powerful executive, more powerful and immune from congressional control.”

In general, citizens may mount legal challenges on constitutional grounds only if they themselves are harmed by the alleged breach. But a singular and highly significant exception involves Establishment Clause cases — which may be initiated by any federal taxpayer, due to an influential Supreme Court case brought by the AJCongress in the late 1960s that challenged federal grants providing textbooks to religious schools.

In part, the Hein case hinges on whether the AJCongress’s earlier lawsuit, known as Flast v. Cohen, applies to certain actions of the executive branch. While the First Amendment specifically mandates only that “Congress shall make no law respecting the establishment of religion,” the Freedom From Religion Foundation and its allies in the case — including the Anti-Defamation League, the Baptist Joint Committee for Religious Liberty and the American Civil Liberties Union — argue that the constitutional clause also applies to executive branch actions that involve discretionary funding, as in the case of the Office of Faith-Based and Community Initiatives.

If the government prevails, “there would just be no review of the actions of the executive branch,” said Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation, in an interview with the Forward. “James Madison said even threepence was too much taxpayer money to go to the support of religion. Well, this is tens of millions of dollars, and this is setting up a bureaucracy.”

The foundation’s brief argues that a ruling in favor of the government would allow the executive branch to use discretionary money for overtly religious purposes with legal impunity. “An agency could establish a chaplain’s office, hiring clergy of only one denomination whose job it would be to hold meetings around the country to spread their faith,” the brief argues. “As long as the positions were created administratively and funded out of discretionary funds — as were the Faith-Based Offices here — the government’s theory would preclude taxpayer standing.”

In response, the government and its allies argue that a ruling for the Freedom From Religion Foundation could open up to judicial review potentially every executive branch decision.

“It’s only these freestanding litigation factories that wouldn’t otherwise have a hook on which to hang their lawsuits that have a problem,” said Nathan Diament, Washington director of the Orthodox Union, which did not file a friend-of-the-court brief in the case. “So yeah, the American Jewish Congress might not be able to bring a lawsuit, or the Freedom From Religion Foundation might not to be able to bring a lawsuit, but if you’re an entity that’s been denied a grant for discriminatory reasons, then you have a harm and you can bring a lawsuit.”

The AJCongress’s Stern counters that the idea “that any bystander who doesn’t like what the government does brings a lawsuit… [is] an exaggerated bugaboo.” Stern said he worries that Jewish groups may have difficulty proving individual harms if the taxpayer remedy is taken away from Establishment Clause cases, and that harm-based lawsuits may ultimately prove unpalatable for Jewish groups, like the network of Jewish charitable federations, which depend on the federal government for a significant percentage of their funding.


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