November 12, 2007
Sheila Suess Kennedy
Wronged by the court's fine print
http://www.indystar.com/apps/pbcs.dll/article?AID=2007711120302
The most lasting legacy of the Bush administration will be its success in
remaking the Supreme Court, and arguably the structure of American
government.
Most public debate over court appointees revolves around the so-called
culture war issues: abortion, gay rights, perhaps the death penalty.
These are important issues, but ultimately -- despite all the invective
about activist judges -- they'll be settled in the court of popular
opinion. Rhetoric aside, the court rarely gets all that far ahead of the
electorate in such matters.
The profound changes being wrought by this court are of a different order.
This is a court that consistently favors government power and authority
over citizens' rights. Americans are losing constitutional liberties, but
we don't notice, because it's all being done in "technical" rulings, in the
fine print that few understand.
Last year, for example, the court handed down a relatively obscure ruling
in Hein v. Freedom from Religion Foundation. FFRF had sued the federal
government, challenging parts of the president's faith-based initiative.
The court didn't rule on the merits of the case; instead, it tightened a
doctrine called "taxpayer standing" and ruled that the plaintiffs, being
mere taxpayers, had no right to complain.
The standing doctrine has a legitimate purpose. If any taxpayer could sue
any government agency or official willy-nilly, the number of frivolous,
costly and time-consuming lawsuits would bring government to a halt. But
previous courts have recognized the importance of balance, of protecting
fundamental rights against government overreaching. It's fine to say, "You
have the right to worship as you please," but simply saying it doesn't make
it so. If no one has the right to sue when government denies you that right
-- if there is nothing you can do when government breaks the rules -- there
really isn't a right. By definition, rights are enforceable.
After Hein, taxpayers who complain that a government agency is violating
the First Amendment can't just point to the improper expenditure of tax
dollars. They have to identify a statute that specifically directs that the
funds be spent in the allegedly unconstitutional way. If the challenged
expenditures were made in the discretion of an elected or appointed
official, too bad.
Proponents of Christian legislative prayer applauded when the 7th U.S.
Circuit Court of Appeals used the new restrictions announced in Hein to
reverse the earlier ruling against such prayer. The court may find future
applications of the doctrine less to its liking. Government officials
violate the Free Exercise provisions of the First Amendment as well as the
Establishment Clause, and conservative taxpayers are just as likely to sue
as liberal ones. The ruling in Hein reduced the rights of all taxpayers,
whatever their position on a particular issue.
Someone once joked that Justice Antonin Scalia would uphold the death
penalty for littering if the government wanted to impose it. His new
colleagues would join him. Enthusiastically.
The current Supreme Court is neither liberal nor conservative. It's
authoritarian.
Kennedy is associate professor of law and public policy at the Indiana
University School of Public and Environmental Affairs in Indianapolis.
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RELATED STORY
Ruling has 'quick and dramatic' impact on church-state cases
http://wcco.com/wisconsinwire/22.0.html?type=local&state=WI&category=n&filename=WI--Church-StateRulin.xml
* Thu, 08 Nov 2007 18:10:05 GMT
Ruling has 'quick and dramatic' impact on church-state cases
MADISON, Wis. (AP) A months-old U.S. Supreme Court ruling quickly weakened
the ability of taxpayers to sue government for violating the separation of
church and state, legal experts say.
The court ruled in June that taxpayers could not sue over executive branch
spending that allegedly promoted religion. The 5-4 decision dismissed a
lawsuit by the Madison-based Freedom From Religion Foundation that
challenged President Bush's faith-based initiative.
Taxpayers only have the standing to sue when Congress specifically
authorizes money for religious purposes, Justice Samuel Alito wrote.
Otherwise, courts would be clogged with cases complaining about the
day-to-day activities of government employees, he wrote.
At the time, advocates for the separation of church and state said the
ruling's impact would be limited. But less than six months later, legal
observers are startled by the fallout in cases claiming violations of the
Establishment Clause of the First Amendment, which prohibits
government-sponsored religion.
``This is a bigger deal than anybody realized and can really change the
dynamics of when these cases get brought,'' said George Washington
University law professor Ira Lupu. ``This could actually turn out to be
quite sweeping in the way it limits the ability of people to challenge what
the government does as a violation of the Establishment Clause.''
Lupu and his colleague Robert Tuttle argue in the draft of a new paper that
the ruling's impact was ``quick and dramatic'' across the nation.
Just last week, the 7th Circuit Court of Appeals cited the new precedent in
ruling 2-1 that taxpayers cannot challenge the practice by the Indiana
House of Representatives of opening its sessions with prayer.
A federal judge previously ruled the practice was unconstitutional. But the
appeals court said taxpayers could not sue since lawmakers had not set
aside money for the prayers and the incidental costs associated with them
came from its general budget.
``The plaintiffs have not tied their status as taxpayers to the House's
allegedly unconstitutional practice of regularly offering a sectarian
prayer,'' Judge Kenneth Ripple wrote for the majority.
Government lawyers are asking the same appeals court to dismiss a lawsuit
that objects to the U.S. Department of Veterans Affairs' use of religion in
treating ailing veterans.
The Madison-based foundation is suing over the agency's use of chaplains,
its practice of giving patients spiritual assessments and its drug and
alcohol treatment programs that incorporate religion.
In a brief filed last week, Department of Justice lawyers said the case
``runs afoul of each of the principles adopted'' in the June decision. The
plaintiffs cannot point to specific funding earmarks for the religious
activities they claim are unconstitutional, they wrote. A decision on that
issue is expected in coming weeks.
The department did not object to the foundation's ability to sue in the
district court, where a judge upheld the constitutionality of the Veterans
Affairs programs.
``It was previously assumed entirely that taxpayers would have standing to
sue a program of this pervasive nature that is funded by Congress,'' said
Annie Laurie Gaylor, the foundation's co-president. ``That is very
revealing of how the ruling will be used.''
In another case, the foundation recently dropped a suit that targeted a
taxpayer-funded Christian ministry program at a women's prison in New
Mexico. The foundation voluntarily dismissed the 2-year-old case after a
judge warned its members likely did not have standing in light of the
Supreme Court ruling.
Gaylor said that decision was painful because they had strong evidence the
program was illegally indoctrinating inmates with Christian teachings.
The foundation has also dropped plans to sue several states and
universities over faith-based programs that were created by the executive
branch, she said.
Daniel Mach, director of litigation at the ACLU Program on Freedom of
Religion and Belief in Washington, said the ruling should not affect cases
where money is specifically earmarked for religious purposes. He pointed to
a ruling in Louisiana last month, where a federal judge blocked two
churches from receiving taxpayer-funded grants.
He said cases where observers and participants not taxpayers object to
prayer in schools or other government programs should also still be allowed
to move forward. As a result, he said the overall impact should be limited.
``Proponents of government-sponsored religion are trying to expand the
Supreme Court's narrow decision,'' he said.
Judith Schaeffer, legal director for People For The American Way
Foundation, a liberal-leaning advocacy group, said in an interview she was
disturbed by the recent legal developments.
``The ruling has created a 'Get out of jail free' card for certain
government officials to engage in unconstitutional conduct because it
cannot be challenged by taxpayers,'' she said. ``It is another instance
where the courthouse doors will be closed to Americans who are seeking
justice.''
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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/
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.. . . 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)
.. . .
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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.
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THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
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