Last week Christy highlighted a case argued on Wednesday before the Supreme Court that had caught my eye – Hein v. Freedom From Religion Foundation. Said Christy,
This is going to be an interesting decision to watch for when the opinions are released this term, as it pits the religious conservative and libertarian conservative principles in direct opposition to one another, and puts the justices on the spot with regard to prior court precedents versus political expediency arguments. (A big open question on the way to arguments, again, that may or may not result in the chipping away of Roe v. Wade, among may other precedential decisions.)
For those who want to join me in slogging through the weeds, here are a couple primary source material links [all pdfs]: Brief by the Government for Hein; Brief by FFRF; and transcript of the oral arguments.
The case centers on the Bush White House Office of Faith Based and Community Initiatives, with three claims made by FFRF about improper governmental conduct (FFRF Brief, pp. 6-8):
- The Office of FBCI "organized conferences regarding federal grant programs that were intended to and had the effect of preferentially promot[ing] and advocat[ing] a climate conducive to funding for faith-based organizations, without similar advocacy for secular community-based organizations.”
- "Eight federal grant recipients directly and preferentially funded with Congressional taxpayer appropriations used those funds for services that integrate religion as a substantive and integral component in violation of the Establishment Clause.
- Various recipients of grants from the Department of Health and Human Services passed along these FBCI funds as sub-grants to organizations without using appropriate objective (i.e., non-religious) criteria.
Right now, however, these aren't the claims being discussed. Instead, the Court is wrestling with whether the FFRF has the right to bring the case in the first place. The legal term for this is "standing," and it basically means that you have to be the injured party to raise an issue in court. For instance, I can't sue anyone for outing Valerie Plame; she can.
In some cases involving the Freedom of Religion and Establishment Clauses of the first amendment, standing is easy to identify. In Engel v. Vitale, which outlawed school prayer, the case was brought by a group of parents on behalf of their children – people directly affected by having to deal with a teacher-led mandatory prayer. In Sherbert v. Verner, a 7th Day Adventist was fired from her job for not being willing to work on her Sabbath, then was refused unemployment compensation by the government. She could sue the government for treating her unemployment claim as a violation of her freedom of religion, because she was the one who was directly affected.
But who might have standing to challenge the FBCI program? It's a much fuzzier situation, and the FFRF chose the route offered by a 1968 case called Flast v. Cohen. Earlier cases prevented people from using their status as taxpayers to raise a legal challenge to government spending with which they disagreed. The place to argue that, said the court, was in the halls of Congress, not the courtrooms. But the Court left an exception in Flast for taxpayer challenges based on the Establishment Clause, and the FFRF is using that as the basis for their claim of standing.
I'm not a lawyer, just a pastor with more than a passing acquaintance with this branch of SCOTUS cases. After my own fast slogging, two issues stood out for me.
Role of and burden on the courts: Expanding (or refusing to restrict) the ability of taxpayers to sue like this may be a huge drain on the courts, as they sort out who has a legitimate beef. The questioning of the FFRF's lawyer, Andrew Pincus, got into the distinction between likely legitimate incidental spending (for instance, buying bagels for a prayer breakfast) and substantive programmatic spending that might be unconstitutional. Scalia led the questioning here, and described this issue quite clearly: "You really want to condemn the Federal courts to deciding case by case at the instance of all these people who feel passionately about this, case by case whether the expenditure was incidental or not. It doesn't seem to me an intelligent expenditure of any sensible person's time." (p. 46-7) For those justices worried about an overburdened judiciary, or the expansion of judicial power, this is not a small argument.
Executive Power: What appears to me to be the bigger issue in the immediate case, though, is not the religious question but the executive power question. The Government, represented by Solicitor General Paul Clement, argued that because the constitutional language speaks only about Congress (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) and not about the activities of the executive branch, there's no problem here. Again, Scalia gets to the heart of the matter, in raising a hypothetical situation (pp. 15-16):
JUSTICE SCALIA: [The President's] getting the money from Congress under a general, under a general appropriation. If he takes this money and he says here, use it for a religious purpose, that's okay?
GENERAL CLEMENT: He –
JUSTICE SCALIA: As far as standing is concerned, he can't be sued?
GENERAL CLEMENT: If he, if he's taking it from a general appropriation that makes no indication it's to go outside the Government so one could not in any way articulate that as an as-applied challenge to the appropriations, then I suppose that there would not be standing.
I'm not going to hang out at the Supreme Court waiting for the opinion to come down – it could be anytime between now and June! – but I'll be watching for it. Most likely, in my opinion, is that a slim majority will find a way to say the FFRF has standing, and return the case to the District Court to be heard on the merits. When all is said and done, I think a majority will say that there must be a way to test executive branch spending on allegedly religious matters – but exactly what they will come up with to define how standing is granted here is anyone's guess.
Speaking of guesses, here are a few: Jack Balkin of Balkinization stresses "dignitary harm" rather than financial effects as the best mechanism for recognizing standing, which one of his commenters notes appears to be supported by Justice Breyer in the oral arguments. Roger Citron at Findlaw, on the other hand, thinks the case will go to the government, very narrowly. The appellate decision favored the FFRF, and was written by the 7th circuit's Richard Posner, whom he and others consider to be one of the best appellate jurists around. Despite that, Citron feels the "minimalist ambitions of Chief Justice Roberts" may be the final piece that tips the scales against the FFRF. At SCOTUSBlog, Lyle Denniston writes
It is most difficult, however, to say just where the Court might now draw the line on taxpayer lawsuits claiming Establishment Clause violations. One reason to be hesitant about predictions is that Justice Antonin Scalia, who usually lines up on one side of an argument and stays there, this time was almost equally aggressive toward Clement's core argument and toward the basic argument made by the defender of this taxpayer lawsuit, Washington attorney Andrew J. Pincus.
Denniston's bottom line guess is that it might come down to Anthony Kennedy, with Scalia, Roberts, Samuel Alito, and Clarence "The Sphinx" Thomas on the side of the government and Stephen G. Breyer, Jr., Ruth Bader Ginsburg, David H. Souter and John Paul Stevens voting the other way.
One other little note. Say what you will about his politics and his jurisprudence, but Scalia has a wicked sense of snark, as noted by legal scholars across the spectrum, and he got off one of the best lines in a long time during the oral arguments of this case. He and several other justices bantered with the two opposing counsel about expenditures for things like the president's secret service protection or Air Force One travel to a "religious" conference, or paying for the bagels at a prayer breakfast, wondering if the amount of money at issue makes a difference, or whether there must be discrimination practiced in the purchasing for there to be standing. For instance, would a taxpayer have standing if bagels were only purchased for evangelical prayer breakfasts? Quipped Scalia, "what could be worse than not buying bagels for a Jewish prayer breakfast?" One writer (whose link I can't find now – aarrgh!) said that the lawyer being questioned ought to have asked for some time to be "put back on the clock" because of the length of the laughter.
It's a case that deals with religion, but right now the pressing issues are presidential authority and the role of the courts. Sound familiar? For those worried about the coming wiretap cases, the decision in this "religion case" could provide interesting insights into the reasoning of the court on other coming cases, like the warrantless wiretapping cases coming out of the Ninth Circuit courtroom of Judge Vaughn Walker.
Stay tuned — and if it is your style, you might want to pray. This one's going to be close.