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Taxpayers can't sue over faith-based initiatives

A White House program to aid religious groups in providing social services survives a court test.

Taxpayers may not sue the White House to challenge alleged violations of the separation of church and state.

In a case that challenged part of President Bush's faith-based initiative program, the US Supreme Court on Monday dismissed the suit – closing an avenue for enforcing the First Amendment clause prohibiting any federal law "respecting an establishment of religion."

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The effect of the 5-to-4 ruling is to somewhat insulate the White House from citizen scrutiny of executive-branch efforts to promote religion or assist the religious.

The ruling, the court's first establishment-clause decision under Chief Justice John Roberts, signals that a majority of justices are prepared to permit a greater sphere of interaction between church and state than were earlier courts.

No right to sue over executive-branch action

In deciding that taxpayers lack legal standing to bring their suit, Justice Samuel Alito said an existing precedent allows such legal action only when it challenges congressional appropriations that touch on the separation of church and state.

The precedent, a 1968 case called Flast v. Cohen, applies only to exercise of congressional power, not executive-branch actions, Justice Alito writes. "In the four decades since Flast was decided, we have never extended its narrow exception [allowing taxpayer lawsuits] to a purely discretionary executive branch expenditure," Alito writes.

Chief Justice John Roberts, Anthony Kennedy, Clarence Thomas, and Antonin Scalia joined the majority opinion.

Justice David Souter wrote a dissent in which Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer joined. Justice Souter said he saw no difference between taxpayers permitted to sue under the Flast precedent to challenge a congressional act and taxpayers trying to sue for a similar alleged constitutional injury because of actions of a federal agency.

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The decision stems from a lawsuit filed by a Wisconsin-based group, The Freedom from Religion Foundation. The suit alleges that Mr. Bush's faith-based initiative program violated the establishment clause by using congressionally appropriated funds to promote religious organizations in conferences run by the executive branch.

Religious groups as government partners

The faith-based initiative reflects Bush's view that religious groups should work in closer partnership with government to provide nonreligious public services such as drug counseling, soup kitchens, and homeless shelters.

In defending it, lawyers for the administration said the 1968 exception applies only to congressional appropriations. The conferences held under the faith-based initiative, they said, were carried out using general appropriations for the executive branch.

Opponents of this approach see it as an unconstitutional breach of the wall separating church and state.

At issue was whether taxpayers had legal standing necessary to wage their court challenge. In general, taxpayers cannot sue the government over how tax revenues are spent, but the Flast precedent did permit lawsuits under the First Amendment challenging Congress's appropriation of money or supplies to religious groups.