Even Scalia Showed Some Skepticism: Highlights From Yesterday's
Supreme Court Argument
http://groups.yahoo.com/group/HRSepCnS/message/8484
By DonByrd Thu Mar 01, 2007 at 02:19:00 PM EST
topic: Church/State Separation section:Front Page printable version
Supreme Court arguments yesterday morning in Hein v. Freedom From
Religion Foundation demonstrated the importance of allowing taxpayers
the standing to sue the government for violating the separation of
church and state in spending our money. The position argued by the
Bush Administration's solicitor general, Paul Clement, was that money
spent by the Executive branch from its general budget did not allow
taxpayer standing, no matter how egregiously violative of church-state
separation those actions may be. As Lyle Denniston at ScotusBlog also
noted, even Justice Scalia was skeptical of this line that disallowed
certain legislative spending, but allowed the transfer of money to the
Executive for the same essential purpose.
JUSTICE SCALIA: If I understand your position correctly, if
Congress enacts a program that favors religion over non-religion,
which is supposedly what the establishment clause prohibits, that's
bad; but if Congress enacts a perfectly valid general program and the
President implements it in a fashion that favors religion over
non-religion, that's okay, insofar as the ability of anybody to
challenge it is concerned.
....
And you think there is a real difference insofar as whether the
taxpayer is harmed between the Congress saying we're going to give the
money to a religious organization to build a church and Congress
saying we're going to build a church. You really think there's a
difference?
GENERAL CLEMENT: I think there's a difference in the extent to
which there is a conceptually direct injury for the taxpayer as taxpayer.
So, a crafty and determined legislature that wanted to promote
religion could make filing a lawsuit intensely more difficult (if not
impossible - who gets to file it?) by simply sending the money to the
Executive in its general appropriation, knowing that he will use it in
a way to benefit religion over non-religion.
That instance is what Justice Breyer was getting at in his amazing
hypothetical that still left Clement claiming there would be no
taxpayer standing. Read on for that and other quotes from, and
thoughts about, yesterday's argument.
JUSTICE BREYER: Suppose -- I'm just trying to understand. Suppose
that Congress passes a law and it says it's a very nice thing to
commemorate the Pilgrims by building a Government church at Plymouth
Rock, where we will have the regular worship in the Puritan religion.
Now can a taxpayer from California in your view challenge that?
GENERAL CLEMENT: I would say that that's a much harder case than
this -
JUSTICE BREYER: Yes, but -
GENERAL CLEMENT: -- but I say no. I would say no, no.
....
JUSTICE BREYER: So you're saying that if the Government has the
most amazing, let's -- I'm trying to think of something more amazing
that what I just thought of.
(Laughter.)
JUSTICE BREYER: All over America, they build churches dedicated to
one religion; and Congress passes a statute and says in every city,
town, and hamlet, we are going to have a minister, a Government
minister, a Government church, and dedicated to the proposition that
this particular sect is the true sect; and they pass a statute like
that, nobody could challenge it?
GENERAL CLEMENT: Horrible hypothetical.
JUSTICE BREYER: Is that what you're saying, then?
GENERAL CLEMENT: I mean, I think the bottom line is that there
would not be taxpayer standing.
There would still be other means of establishing standing. But under
this view, an aware legislature working together with the Executive
could leave the taxpayer standing principle under Flast fairly
toothless. The government could spend any amount of our money on the
promotion of religion and the Administration's view is that so long as
the money does not go to outside groups through a congresional
appropriation, we would not be harmed as taxpayers.
The question facing the Court is, short of undoing the principle,
where and how would they draw the line? The Bush Administration's
position is that allowing a suit like this one will open floodgates of
frivolous claims concerning every dime the government spends with any
tangential relationship to religion (Scalia's example later involved
the paycheck of the secret service tasked with protecting the
President when he goes to church, or to a prayer breakfast). Opponents
counter that disallowing such challenges will have a chilling effect
on citizens' ability to demonstrate harm and to bring challenges at
all to unconstitutional actions of the Executive.
Stuck in the middle, as always, seems to be Justice Kennedy, who
likely wouldn't want to empower the President to violate the
separation of church and state, but also is worried about the Court
interfering with the way the Executive carries out its duties.
JUSTICE KENNEDY: It seems to me unduly intrusive for the courts to
tell the President that it cannot talk to specific groups to see if
they have certain talents that the Government may use to make sure
that all of their energies are used properly by the Federal
Government. It's almost like a speech rationale. And perhaps you
would say that's just a judgment on the merits, but it seems to me
that there's a standing concern here, too, that we would be
supervising the White House and what it can say, what it can -- who it
can talk to. And it seems to me that's quite intrusive from the
standpoint of standing purposes. . . .
Whether or not a decision can be crafted that will allow taxpayer
standing in Establishment Clause cases involving the Executive branch
while also assuaging Justice Kennedy about this separation of powers
concern will likely determine the outcome of the case. Stay tuned...
************************************************************************************
***************************************************************
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Historical Reality SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
***************************************************************
.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
****************************************************************
USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote
"You pilot always into an unknown future;
facts are your only clue. Get the facts!"
That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.
It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.
*****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
****************************************************************
.
|
