A breach in the church-state wall

A case before the US Supreme Court could deal a sharp blow to the separation of church and state.

from the February 28, 2007 edition

Page 2 of 2

Page 1 | 2

That, of course, is how the Bush administration prefers its constitutional constraints.

To be sure, the administration does not advocate the wholesale abolition of taxpayer standing in establishment clause cases. It would allow taxpayers to challenge specific congressional spending programs, but not executive branch spending from general funds. This is hardly a consolation, as the Court of Appeals recognized in rejecting the administration's argument.

Suppose, as the lower court suggested, the secretary of Homeland Security used general executive funds to build a mosque and hire an imam in the belief that such visible support for Islam would reduce the risk of Islamist terrorist attacks against America. Would this traducing of the establishment clause not allow taxpayers to sue?

If one accepts the administration's view, it would not. The prospect boggles the mind. Not only would serious violations of the establishment clause go unremedied, but Congress might be encouraged to pad the executive's general funds, with an implicit understanding that the extra money would be available to fund executive branch programs promoting religion. These results would be deeply inconsistent with the core purpose of the establishment clause: to ensure that no taxpayer is forced to contribute to government support of religion.

Unfortunately, the Supreme Court rarely takes a case to affirm the decision from below. That, together with the recent shoring up of the court's conservative majority, strongly suggest that the administration's position will prevail, despite the threat it poses to the separation of church and state. If it does, everyone at the ball will take notice. But by that time, the party will be over.

• Andrew B. Coan is a fellow at Stanford Law School. He clerked for the Seventh US Circuit Court of Appeals but did not work on the Hein opinion. ©2007 Los Angeles Times Syndicate.

1 | Page 2