Slamming the courthouse door on church-state cases?

IN FEBRUARY the Supreme Court heard oral arguments in an important case that could affect the right of all U.S. citizens to be free from government-sponsored religion.

The case, Hein v. Freedom From Religion Foundation, looks complex and esoteric on the surface but presents a compelling question: When do citizens have the right to challenge government actions that promote religion?

Hein deals with a three-year-old controversy over the so-called "faith-based" initiative. In 2004 the leaders of the Madison, Wisconsin-based Freedom From Religion Foundation sued various federal agencies, asserting that governmental advocacy of the initiative through the establishment of various faith-based offices and a series of regional conferences for clergy violates the separation of church and state.

In legal documents, the organization's attorneys argued that these conferences were clearly designed to urge religious organizations to seek taxpayer support. Thus, they favored religion over non-religion in violation of the First Amendment.

The case was rejected by a federal court, then reinstated on appeal and has now reached the nation's highest court. But interestingly, no court has yet addressed the core question raised by the case: Did these actions by government officials to promote the faith-based initiative violate the First Amendment? Rather, the legal fight has become bogged down in a dispute over "standing"--the right to sue.

Americans hear so much about lawsuits that the right to sue is taken as a given. Many Americans assume that as taxpayers they have an automatic right to challenge government actions. This isn't always so.

When it comes to church-state cases that center on tax funding of religion, the right to sue rests on a landmark 1968 Supreme Court case called Flast v. Cohen. In that decision a court majority ruled that taxpayers could challenge aspects of a federal education law that aided religious schools. Thus, a right that many Americans take for granted was codified less than forty years ago, and some far-right activists want to roll it back completely.

Other rulings have already curbed the right to sue in different contexts. In 1982 Americans United for Separation of Church and State (AU) lost a case at the Supreme Court challenging the federal government's decision to give surplus land to a religious college. A court majority ruled that AU had no standing to bring the case. Thus, the central issue of the land transfer was never seriously examined by any court.

The Hein case is important because it challenges an executive action. President George W. Bush, unable to get his faith-based initiative through Congress, has implemented much of it through executive orders and regulatory changes. The conferences in question were paid for with discretionary funds through the White House Office of Faith-Based and Community Initiatives. In court papers, the Justice Department argues that the Freedom From Religion Foundation has no right to sue because no congressional appropriations are involved.

At the U.S. Seventh Circuit Court of Appeals, Judge Richard A. Posner was clearly skeptical of this contention. He pointed out that under this rule, there would be nothing to stop the Department of Homeland Security from using discretionary funds to set up a mosque and pay an imam to preach a moderate version of Islam.

Some religious right groups hope the Supreme Court uses the Hein case to go even further and curb taxpayer standing as well. Jay Sekulow, chief lawyer for the American Center for Law and Justice, a group founded by television preacher Pat Robertson, issued a fund-raising plea asking supporters to pay for the cost of his group's friend-of-the-court brief. Sekulow asserted that taxpayers should no longer have the right to challenge government funding of religion in court.

Even worse is the legal brief filed by the Foundation for Moral Law, an extreme group founded by Roy Moore, former chief justice of the Alabama Supreme Court. Moore's group insists that the portion of the First Amendment barring laws "respecting an establishment of religion" confers no rights on individuals--a view that has unfortunately been adopted by Supreme Court Justice Clarence Thomas.

Obviously, slamming the courthouse door in the face of most plaintiffs in church-state lawsuits would quickly make portions of the religion clauses of the First Amendment a dead letter. Under a narrow doctrine of standing, an individual would no longer have the ability to sue unless he or she could show some specific, highly individualized legal injury--and tax money being diverted to religion wouldn't be enough.

Thanks to popular culture, we are all familiar with the claim, "I'll take my case all the way to the Supreme Court!" In fact, the odds are always against getting a case that far. The high court hears less than 2 percent of the disputes it is asked to take.

The rest are disposed of by the lower courts--and now some activists on the right would choke off access even there. Sekulow calls the Freedom From Religion Foundation's case frivolous. I disagree, but even if frivolous cases are sometimes filed, that hardly justifies making it harder for everyone to get a case into the federal courts. In fact, most church-state litigation raises questions that are anything but frivolous and seeks to prevent the government from using the coercive power of taxation to compel citizens to support religion.

Bear in mind that the people who bring these legal challenges aren't demanding the right to win every time. Clearly they hope to win, but when these challenges get tossed out due to battles over standing, plaintiffs are denied the right to even make their argument in court.

There should be no doubt about taxpayer standing. It was forced tax support for religion, after all, that riled so many people in colonial America. Thomas Jefferson noted that allowing the government to force a person to contribute just "three pence" to religion was too much.

If Bush and his allies have their way, today's taxpayers will be forced to cough up a lot more than three pence to pay for various faith-based programs. Taxpayers should always have the right to challenge spending decisions they believe violate constitutional principles. Anything else is simply un-American.

(Note: my column on the November election results in the January/February 2007 issue incorrectly characterized a Missouri ballot referendum. The measure prevents legislators from banning stem-cell research but does not deal with tax funding of it.)

Rob Boston is assistant director of communications for Americans United for Separation of Church and State.