A breach in the church-state wall
Significant constitutional cases don't always arrive at the ball dressed up as such. Sometimes they come in the modest trappings of an obscure technical dispute too dull to capture public attention.
Wednesday, the US Supreme Court will hear oral arguments in just such a case. Hein v. Freedom From Religion Foundation is unlikely to make headlines, but it could deal a sharp blow to the wall of separation between church and state.
The plaintiffs are ordinary citizens who object to their federal tax dollars being used to fund the president's program for "faith-based and community initiatives." In particular, they claim that several conferences sponsored by the program were propaganda vehicles for religion and therefore violated the establishment clause of the First Amendment, which forbids government promotion of religion.
The government defendants – "Hein" is Jay Hein, director of the White House Office of Faith-Based and Community Initiatives – dispute the plaintiffs' claim about the conferences. But at this stage, the Bush administration is asking the court to throw the case out on grounds that ordinary taxpayers have no legal interest in how the executive branch spends public money.
It seems like the kind of dry, legalistic dispute that only a lawyer could love. But the appearance is deceiving. If the court grants the administration's request, it will eliminate what is often the only effective mechanism for challenging financial support of religion by the executive branch. The effect would be to grant the president and his staff, as well as the vast federal bureaucracy, a license to preach.
The basis for the administration's request is the esoteric doctrine of standing, which determines who has suffered a sufficiently tangible injury to be allowed to bring suit in federal court. Ordinary taxpayers generally cannot sue to challenge the legality of government spending decisions because their contribution to any given expenditure is too small to count as tangible.