Government by Law, Not Faith
New York Times Editorial
February 28, 2007
The Supreme Court hears arguments today
in a case that could have a broad impact on whether the courthouse
door remains open to ordinary Americans who believe that the
government is undermining the separation of church and state.
The question before the court is
whether a group seeking to preserve the separation of church and
state can mount a First Amendment challenge to the Bush
administrationís "faith based" initiatives. The arguments turn on a
technical question of whether taxpayers have standing, or the right
to initiate this kind of suit, but the real-world implications are
serious. If the court rules that the group does not have standing,
it will be much harder to stop government from giving
unconstitutional aid to religion.
Soon after taking office, President
Bush established the White House Office of Faith-Based and Community
Initiatives, and faith-based offices in departments like Justice and
Education. They were intended to increase the federal grant money
going to religious organizations, and they seem to have been highly
effective. The plaintiffs cited figures showing that from 2003 to
2005, the number of federal grants to religious groups increased 38
percent. The Freedom From Religion Foundation and several of its
members sued. They say that because the faith-based initiatives
favor religious applicants for grants over secular applicants, they
violate the Establishment Clause of the First Amendment, which
prohibits government support for religion.
These are profound issues, but because
the administration challenged the right of the foundation and its
members to sue, the courts must decide whether the plaintiffs have
the right to sue in this case before they can consider the
constitutionality of the faith-based programs. An appeals court has
ruled, correctly, that the plaintiffs have standing.
In many cases, taxpayers are not in
fact allowed to sue to challenge government actions, but the Supreme
Court has long held that they have standing to allege violations of
the Establishment Clause. Without this sort of broad standing, many
entanglements between church and state would never make it to court.
The Bush administration is pushing an
incorrect view of standing as it tries to stop the courts from
reaching the First Amendment issue. Taxpayers can challenge the
financing of religious activity, the administration claims, only
when a Congressional statute expressly authorizes the spending.
There is no statute behind the faith-based initiative.
In his decision for the appeals court,
Judge Richard Posner of the United States Court of Appeals for the
Seventh Circuit, in Chicago, convincingly explained why this
argument is inconsistent with the Supreme Courtís precedents on the
Procedural issues like standing can
have an enormous impact on the administration of justice if they
close the courthouse door on people with valid legal claims. The
Supreme Court has made it clear that taxpayers may challenge
government assistance to religion. The justices should affirm Judge
Posnerís ruling so the courts can move on to the important question:
Do the Bush administrationís faith-based policies violate the