Supreme Court takes up church-state case
A Wisconsin group says the president's faith-based initiative is illegal. But can taxpayers sue the government over funding?
from the February 28, 2007 edition
Page 3 of 3
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.
Can the executive branch be sued, too?
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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