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The New York Times
Justices Reject Suit
on Federal Money
for Faith-Based
Office
By LINDA GREENHOUSE,
nytimes.com on the Web, June 26, 2007
WASHINGTON, June 25 — The
Supreme Court on Monday closed the courthouse door on a lawsuit challenging the
Bush administration’s use of taxpayer money to support its Office of Faith-Based
and Community Initiatives.
By a vote of 5 to 4, the court ruled that taxpayers could not sue to block
federal expenditures that they allege violate the constitutional separation of
church and state.
For 39 years, the court has recognized an exception to a general rule that
taxpayers do not have standing to sue to stop government expenditures with which
they disagree. That exception, created in the 1968 case of Flast v.
Cohen, allowed taxpayers to challenge spending on programs that they
believed promoted religion. But yesterday’s decision said that precedent
did not apply in this case.
The five-member majority was split between those justices who would have
overruled the precedent entirely and those who, interpreting it narrowly, held
that it did not apply to the lawsuit at issue. While there was no opinion
for the court, the narrower basis for disposing of the case prevailed in an
opinion by Justice Samuel A. Alito Jr. that was joined by Chief Justice John G.
Roberts Jr. and Justice Anthony M. Kennedy.
These three said that, properly interpreted, the Flast v. Cohen precedent
permits taxpayer challenges to religion programs explicitly set up and
specifically financed by Congress. Since the Bush administration created
the White House Office of Faith-Based and Community Initiatives by executive
order and is paying for it out of general appropriations, the precedent does not
apply, the three justices said.
The other two in the majority, Justices Antonin Scalia and Clarence Thomas,
objected that “there is no intellectual justification for this limitation.”
Declaring that “if this court is to decide cases by rule of law rather than show
of hands, we must surrender to logic and choose sides,” Justice Scalia made
clear which side he was on, in an opinion that Justice Thomas signed.
Flast v. Cohen was “an inkblot on our jurisprudence,” they said.
The dissenters also objected, from the other direction, to the distinction that
the Alito opinion drew. “If the executive could accomplish through the
exercise of discretion exactly what Congress cannot do through legislation,
Establishment Clause protection would melt away,” Justice David H. Souter wrote
in a dissenting opinion that was also signed by Justices John Paul Stevens, Ruth
Bader Ginsburg and Stephen G. Breyer.
The case began as a lawsuit brought against the administration in 2004 by a
secular advocacy group, the Freedom From Religion Foundation, to challenge the
constitutionality of conferences that the White House Office of Faith-Based and
Community Initiatives has been running to instruct religious organizations on
how to apply for federal grants.
Annie Laurie Gaylor, co-president of the foundation, said in an interview on
Monday that her organization, based in Madison, Wis., was relieved that the
court had not used the case as an occasion to overturn Flast v. Cohen.
She said that many of the foundation’s other cases were either challenges to
state programs in state court, or challenges to federal programs established by
Congressional action. Neither category of lawsuits will be affected by the
ruling, Hein v. Freedom From Religion Foundation, No. 06-157.
Justice Alito’s opinion, while concluding that “we leave Flast as we found it,”
was implicitly quite critical of the precedent. “It is significant that,
in the four decades since its creation, the Flast exception has largely been
confined to its facts,” he said. That is a description of a decision that
has become a dead end in the law, a description that often precedes a decision
to revisit and overrule such a precedent.
But it was apparent from a brief concurring opinion by Justice Kennedy that the
day of reckoning has not yet arrived for Flast v. Cohen. Justice
Kennedy described the Establishment Clause in the First Amendment as conveying
“the Constitution’s special concern that freedom of conscience not be
compromised by government taxing and spending in support of religion.” He
added, “In my view the result reached in Flast is correct and should not
be called into question.”
However, Justice Kennedy said, he agreed that the precedent should be limited as
Justice Alito’s opinion proposed. Otherwise, he said, “courts would soon
assume the role of speech editors for communications issued by executive
officials and event planners for meetings they hold.”
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