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Justices Weigh Right to Sue Over Church-State Separation

By Robert Barnes
Washington Post Staff Writer
Thursday, March 1, 2007

The Supreme Court, for the first time under Chief Justice John G. Roberts Jr., confronted yesterday the devilishly complicated issue of church-state separation, and whether ordinary taxpayers have the right to sue over the Bush administration's embrace of faith-based organizations.

With Roberts and newest member Samuel A. Alito Jr. active in the discussion, the justices bombarded the lawyers before them with questions about what kinds of government action could warrant a taxpayer suit. A church built by the government? The number of times a president appears at prayer breakfasts?

Roberts even wondered whether opponents of the administration's initiatives would extend their concerns to the court itself, which opened yesterday's session, as it always does, with a marshal appealing for God to "save the United States and this honorable court."

Constitutional scholars and some justices say that the First Amendment's religion clauses present some of the most difficult questions to interpret. Justices must balance the establishment clause -- Congress shall make no law respecting an establishment of religion-- with the free-exercise clause -- or prohibiting the free exercise thereof-- which immediately follows.

The case before the court involves a lawsuit that the Freedom From Religion Foundation, a Wisconsin-based group of agnostics and atheists, brought against the White House Office of Faith-Based and Community Initiatives. President Bush established the office in 2001 because, he said, he wanted to level the playing field between religious-based and secular groups vying for grants to provide social services. But the foundation said conferences held by the office favored the religious groups over the secular groups.

The question before the justices, though, is whether the complaints can even be brought to court.

The Supreme Court decided decades ago that taxpayers generally do not have the right, or "standing," to challenge government spending decisions simply because they do not agree with them. But it carved out an exception in 1968, in a case called Flast v. Cohen, for taxpayers to challenge congressional spending that violated the establishment clause.

A lower court said the Freedom From Religion Foundation's suit did not meet the Flast test, because it involved the executive branch, not Congress's taxing and spending powers. But the U.S. Court of Appeals for the 7th Circuit disagreed.

The court's 2 to 1 majority opinion said the suit should go forward because "there is so much that executive officials could do to promote religion in ways forbidden by the establishment clause."

Solicitor General Paul D. Clement, who represents the Bush administration, said in a brief asking the Supreme Court to review the case that that decision would "create a roving license for any one of the more than 180 million taxpayers in the United States to challenge any action of the executive branch that offends that individual's own view" of church-state separation.

Conservative groups and 12 states, including Virginia, that support the government would like to see the Flast exception overturned. And while Clement stopped just short of that, he told the court yesterday that the right to sue established in Flast was a very narrow one. Fielding hypotheticals from the justices, he found few instances in which he thought taxpayers would have a standing.

But with helpful commentary from Roberts, he said that citizens who believed that they had been specifically harmed -- for instance, members of one denomination who thought that the government was discriminating against them -- could have the right to sue.

"I think it's important to emphasize that if this Court recognizes that there is not taxpayer standing, that does not mean that there won't be lawsuits, that there won't be directly injured plaintiffs that can bring claims," Clement said.

Alito, Justice Antonin Scalia and Roberts -- whom Clements three times said was "exactly right" in his view of the case -- seemed most sympathetic to the government's argument, and Justice Anthony M. Kennedy worried about the courts "supervising the White House." Justice Clarence Thomas did not ask questions, but has written in the past that he does not think that the establishment clause gives rise to individual complaints.

Justice Stephen G. Breyer seemed most skeptical of the government's position that only congressional action involving taxing and spending was open to taxpayer challenge. "What's wrong with just saying that Flast stands for the proposition that when the government spends money in violation of the establishment clause, a taxpayer -- after all, the money comes from the taxpayer -- can bring a lawsuit?" he asked.

The foundation's lawyer, Andrew Pincus, agreed. "There's no basis in history . . . for the government's claim that executive branch decisions are somehow different and insulated with respect to spending," he said.

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