Court leery of suits by taxpayers - Mercedes-Benz Forum

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post #1 of 1 (permalink) Old 03-01-2007, 07:56 AM Thread Starter
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Court leery of suits by taxpayers

WASHINGTON — Supreme Court justices appeared ready Wednesday to limit taxpayers' ability to challenge government funding of groups with religious affiliations.

Several justices were skeptical of a lower court decision allowing a Wisconsin group, the Freedom From Religion Foundation, to sue the White House Office of Faith-Based and Community Initiatives. The foundation says the White House office — created by President Bush to help religious groups compete with secular ones for federal social services grants — aims to support an unconstitutional government endorsement of religion.

Some justices, including Chief Justice John Roberts and Antonin Scalia, suggested that if the lower court's decision were affirmed, taxpayers would bring frivolous lawsuits challenging government spending that touches religion.

Roberts told Andrew Pincus, representing the Wisconsin group, "I don't understand, under your theory, why any taxpayer couldn't sue our marshal for … saying (as is customary at the start of a court session), 'God save the United States and this honorable court.' Her salary comes from Congress."

Taxpayers typically cannot sue over how the government spends money, based on the theory that the link between the expenditure and an individual taxpayer is remote. In a 1968 case, Flast v. Cohen, the court made an exception for lawsuits alleging a breach of the separation of church and state.

At issue now is the breadth of that exception. U.S. Solicitor General Paul Clement, defending the administration, called it narrow and suggested at the close of his argument that the court abandon the exception. Twelve states have urged the court to bar all such lawsuits by taxpayers.

Wednesday's case does not involve a specific grant. It focuses on Bush's executive order that led to a series of regional conferences that promoted the administration's faith-based initiative. Freedom From Religion says the conferences boosted the funding prospects for religion-based groups over secular community-based organizations.

Clement said taxpayers may not challenge a program unless it is funded through a congressional appropriation and the expenditure itself led to a constitutional violation. The First Amendment says government "shall make no law respecting an establishment of religion."

Pincus argued that it should not matter whether the funding comes through the legislative or executive branch. He said an expenditure may be challenged if it is "discrete and identifiable" and "arises with respect to religious activities."

Justice Anthony Kennedy said: "It seems to me unduly intrusive for the courts to tell the president that (he) cannot talk to specific groups … to make sure that all of their energies are used properly."

More sympathetic to the challengers, Justice Stephen Breyer said that "people become terribly upset when they see some other religion getting the money from the state."

"If spending money you don't have is the height of stupidity, borrowing money to give it away is the height of insanity." -- anon
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