Supreme Court takes up church-state case

"The establishment clause is different. It is designed to limit the government from doing things which tend to favor or help people without necessarily hurting anybody in any obvious material way," Professor Lupu says. "Because of that, the rules about who can sue to complain about alleged violations of the clause are unusually important."

If you follow the normal rules that you have to be injured in some direct way before you can complain about what the government has done, the establishment clause would never get enforced in the courts, Lupu says. "The government would put up crèches and crosses and menorahs and would spend money on religion, and nobody could challenge it because nobody is hurt in obvious ways by those kinds of activities."

Had the courts consistently enforced the rule on standing, establishment-clause cases filed by ordinary Americans would be rare to nonexistent. But in 1968 the Supreme Court carved out an exception that allows taxpayers to file establishment-clause lawsuits challenging congressional spending that benefits religion.

It is that 1968 exception that is at the center of Hein v. Freedom From Religion Foundation. The Hein in the case is Jay Hein, director of the White House Office of Faith-Based and Community Initiatives.

The Bush administration is arguing that the 1968 exception only permits taxpayer lawsuits challenging appropriations by Congress that raise church-state concerns. The portion of the faith-based initiative under challenge is an activity of the executive branch that does not involve outlays of government money earmarked to religious groups.

The lawsuit challenges "executive branch activities, not a congressional program and not any financial disbursements to outside entities," writes US Solicitor General Paul Clement in his brief to the court.

"Only Congress can extract and spend 'tax money' in aid of religion, and only challenges to such exercises of congressional power will support taxpayer standing," Mr. Clement writes.

Lawyers for the Freedom From Religion Foundation counter that the 1968 exception applies to alleged establishment-clause violations by the government – not just Congress.

"Given their knowledge of English history, the framers [of the Constitution] were well aware of the potential for abuse of executive power in the area of religion, which included coerced payment of funds that were used by the monarch to aid religion," writes Richard Bolton of Madison, Wis., in his brief to the court on behalf of the Wisconsin group. "There simply is no basis for concluding that they were less concerned about exercises of executive discretion than about the actions of Congress."

A more freewheeling debate over the case takes place in friend-of-the-court briefs. Some urge the high court to eliminate the 1968 exception. Others want the court to expand the 1968 exception to foster greater public oversight and involvement in policing the ever-shifting line between church and state.

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