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Media Analyses of Supreme Court's 5-4 Hein v FFRF Decision
Via NY Transfer News Collective All the News that Doesn't Fit
Freedom From Religion Foundation - Jul 3, 2007
http://www.ffrf.org
Media Analyses of Supreme Court's 5-4 Decision in Hein v FFRF
Media and columnists have started to digest the ramifications of the
Supreme Court's ruling in Hein v. the Freedom From Religion Foundation,
and general analyses of this session's series of retrogressive 5-4
decisions. News articles follow list.
Hard right, by Abdon M. Pallasch, Legal Affairs Reporter, Chicago
Sun-Times, July 2, 2007
http://www.suntimes.com/news/metro/451960,CST-NWS-contro02.article
High court remains politically divided; More 5-4 Rulings mark shift to
right, by Charlie Savage, Boston Globe (June 30, 2007)
http://www.boston.com/news/nation/w...06/30/high_court_remains_politically_divided/
Mark Pelavin, leading lobbying for the Religious Action center of
Jewish Reform movement, in a guest column for Israel's daily, Haaretz,
talks about the disturbing ramifications of Hein v. FFRF (July 1, 2007):
http://www.haaretz.com/hasen/pages/rosnerGuest.jhtml?itemNo=877050
Analysis: Courts only slightly less open to church-state suits after
Hein case, by Robert Marus, Associated Baptist Press (June 28, 2007)
http://www.abpnews.com/2618.article
American Supreme Court swing to the right, undermining First Amendment,
National Secular Society (UK) statement, July 2, 2007
http://www.secularism.org.uk/83429.html
"No Challenge" to US faith scheme, BBC News (straight coverage) (June
25, 2007) http://news.bbc.co.uk/2/hi/americas/6239146.stm
Chicago Sun Times - Jul 2, 2007
Hard Right
By Abdon M. Pallasch
In the locker room of the losing team, each speaker used some version
of this line, which always seemed to get laughs: "It was another 5-4
decision, and I'm not going to waste your time telling you who were the
five and who were the four."
The new conservative majority on the U.S. Supreme Court is delivering
the decisions Republican presidents have sought for decades, five law
professor/practitioners told 170 young attorneys gathered at the
Chicago offices of Mayer, Brown, Rowe & Maw last week.
And here, the lawyers said, is what you can look forward to as a
result: More corporate-funded and union-funded "issue" or "attack" ads
in the waning days of political campaigns; corporations mandating
secrecy of salaries since it's harder now to sue if you don't know how
much less you're earning than your peers; and more price-fixing by
companies less worried about pesky suits, the panelists said.
It's all bad news for the American Constitution Society, a liberal
counterpart to the Federalist Society of conservative law students and
lawyers that helped birth the current majority of conservative jurists
on the court.
While not all starry-eyed liberals, the lawyers and panelists at this
gathering of the Chicago chapter mostly lamented what they saw as a
wholesale overturning of precedents even as the justices wrote that
they were not overturning precedents.
In their ruling overturning the McCain-Feingold ban on "issue" ads in
the final days of a campaign, the justices said they were not
overturning their 2003 decision upholding the ban.
In their ruling upholding the ban on "partial-birth abortion," the
justices said they were not overturning their 2003 decision that found
the ban unconstitutional.
Even the victories for the "liberal" side were only 5-4, with Justice
Anthony Kennedy narrowly siding with them. Indeed, the panelists
agreed, it is Kennedy who holds the balance of power and at whom many
Supreme Court practitioners aim their arguments.
In the 5-4 decision upholding the state of Massachusetts' right to sue
the EPA for failing to enforce clean-air standards, panelist David
Franklin, a DePaul University law professor, noted Justice Antonin
Scalia's strong dissent, that with one more conservative vote on the
court, could become law.
"Scalia said that CO2 is not a pollutant because it does its dirty work
in space," Franklin said. "He got four votes for that, so be afraid. Be
very afraid," he said to laughter from the crowd.
Mayer, Brown partner Jeffrey Sarles started and ended his talk by
emphasizing that "the opinions expressed are those of the speaker and
do not necessarily reflect those of the firm."
Even where the new majority has not overturned precedent, the changes
it has made to "procedural" law "certainly narrows the doorway into the
courthouse," Sarles said.
The majority ruled last Monday that the Wisconsin-based "Freedom From
Religion Foundation" did not have the right to sue President Bush over
his dispensing tax money for "faith-based initiatives."
A woman who said her salary was lower than her male peers did not
have the right to sue because it took her too long to find out her
fellow employees' salaries, the court ruled.
A prisoner who took 17 days instead of 14 to file his request for an
appeal after a judge issued an order that he could have 17 days can't
appeal because the statute says 14 days, the court ruled.
In the days after the meeting, the court issued more rulings along the
same lines, including one Thursday that threw out school affirmative
action programs in two cities while saying it was being "faithful" to
the Brown v. Board of Education decision that outlawed segregated
schools.
Conservative lawyers like the 40 at a Federalist Society dinner at
Maggiano's last Thursday (the "winning" team) believe this court is
swinging the pendulum back from liberal rulings of the last four
decades, and they expect to see rulings to their liking for the
foreseeable future.
The troops will eventually come home from Iraq and President Bush's tax
breaks for the wealthy may end if a Democrat succeeds him. But the
president's youthful, conservative appointees to the court will be
making rulings for decades.
"I don't see any hope for any of the five members of the current
majority threatening to retire any time soon," Sarles said.
Boston Globe - Jun 30, 2007
High court remains politically divided
More 5-4 rulings mark shift to right
By Charlie Savage
Globe Staff
WASHINGTON -- One year ago, Chief Justice John Roberts laid out a
vision of moving the Supreme Court away from its recent history of
politically divided 5-to-4 rulings, saying he hoped to use an approach
to deciding cases that would achieve "broader agreement among the
justices."
"The rule of law is strengthened when there is greater coherence and
agreement about what the law is," Roberts said, telling graduates and
parents at Georgetown University that the court must try harder to
achieve unanimity.
But as the Supreme Court completes its first full term with Roberts and
President Bush's other nominee, Justice Samuel Alito, consensus has
failed to materialize. Instead, the court's term was defined by a
series of 5-to-4 decisions between sharply divided liberal and
conservative factions.
The court handed down 24 such rulings in its 72 cases -- the highest
percentage of one-vote decisions in at least a decade, according to
data compiled by Tom Goldstein , founder of the court-watching website,
SCOTUS Blog.
The close decisions encompassed nearly every major issue to come before
the court, including abortion rights, the use of race in school
integration plans, gender discrimination, campaign finance rules, free
speech, and global warming.
Roberts's faction prevailed in all but one of the major cases decided
by one vote. Fulfilling predictions that the arrival of Roberts and
Alito would shift the court to the right, the just-completed term gave
the conservative legal movement its strongest taste of success in its
multidecade project to reshape the federal judiciary.
Curt Levey of the Committee for Justice, which promotes the
confirmation of conservative judges, called the term "a victory for
moving the court away from its liberal position of the past several
decades." He also said the frequent 5-to-4 outcomes were not
surprising, given the make up of the court.
"I think where we have had these hot-button issues, where there is just
a huge gulf between what the four liberals want and what the rest of
the court wants, it is hard to imagine . . . that there would be
consensus," he said.
Still, Laurence Tribe , a liberal-leaning law professor at Harvard
University, warned that the recent history of 5-to-4 holdings on major
cases, along with the court's change in direction on several
high-profile issues, could erode respect for the court -- a respect
which is based on the idea that its decisions are based on law, not
politics.
"Any member of the general public who pays the slightest attention to
what the court is doing has to regard it now as almost entirely a
political body," Tribe said. "The fact that many people are perceiving
that new faces means new law really undercuts . . . the court's role as
an institution."
The court's term was marked by the views of Justice Anthony M. Kennedy,
who often provided the deciding vote between the factions of four
liberal and four conservative justices. Kennedy alone was in the
majority in every one of the 5-to-4 decisions.
A nominee of President Reagan, Kennedy sided with the liberals in just
one major case, Massachusetts v. E.P.A., which allowed states to sue
the federal government for failing to regulate gases that contribute to
global warming. Otherwise, Kennedy sided with conservatives in the most
important 5-to-4 decisions:
In Hain v. Freedom from Religion Foundation, for example, Kennedy and
the conservative bloc ruled that taxpayers could not challenge Bush's
faith-based initiatives program, which helps religious groups win
federal grants.
In Ledbetter v. Goodyear Tire, the court restricted the ability of
women to sue their employers over past gender discrimination, even if
it has an impact on their current salary.
In the so-called "Bong Hits 4 Jesus" case, the court ruled that public
schools may punish a student who displays a sign at school events that
conflicts with the school's anti drug policies.
And in Gonzales v. Carhart, the court upheld the federal Partial-Birth
Abortion Ban Act of 2003. The ruling was the first time the court
upheld an abortion restriction with no exception for the health of the
woman.
The case represented a quick reversal for the court, which had struck
down a similar state law in 2000. The abortion case was one of several
in which the court made an abrupt shift from recent holdings, based on
the views of its newest justices.
In Federal Election Commission v. Wisconsin Right to Life, for example,
the court held that the government couldn't restrict corporations and
unions from running "issue ads" that implicitly criticize candidates
close to an election. In 2002, the court had upheld such restrictions
on corporations and unions.
And in a set of cases involving school systems in Seattle and
Louisville, the court ruled that local governments may not classify
children by race to achieve diversity when assigning students to public
schools. The ruling reversed course from a 2003 case in which the court
had upheld a race-conscious admissions policy at a law school.
The 5-to-4 decision in the race case provoked an unusually bitter
dissent from the court's senior justice, John Paul Stevens, who
suggested that the shifting stance on race was entirely because of
political changes on the court. And Justice Stephen G. Breyer quipped
from the bench that "It is not often in the law that so few have so
quickly changed so much."
Dennis Hutchinson, a University of Chicago law professor and Supreme
Court historian, said that the frequent 5-to-4 votes of the current era
stand in marked contrast to previous periods, when the court more often
managed to reach unanimous decisions. In some eras, justices
consciously tried to maintain consensus to protect the institution's
reputation, especially in politically sensitive cases such as Brown v.
Board of Education, which outlawed school segregation.
When new justices have arrived in the past, he added, many have waited
a few years before seeking to overturn precedents. But this term, he
said, the court moved forward with changes at a "breathtaking rate."
Ha'aretz - Jul 1, 2007
Guest Column: Exchange on Hein v. FFRF
by Mark Pelavin
Leading lobbyist for the Religious Action Center of Jewish Reform
movement will discuss recent decisions by the Supreme Court.
Mark J. Pelavin is the Associate Director of the Religious Action
Center of Reform Judaism (RAC). He is one of the Jewish community's
leading legislative strategists, and, having worked in Washington for
over 15 years, one of its senior lobbyists.
Mr. Pelavin, an attorney, plays a leadership role on the RAC's entire
agenda, although he is particularly recognized for his expertise on
issues concerning the separation of church and state. He is an expert
in confronting the religious right.
Our discussion this week will focus of the recent decisions by the US
Supreme Court. Readers can send questions to
rosnersdomain@haaretz.co.il.
Dear Mark,
You write that "Hein is particularly disturbing for two reasons, over
and above its result". But if the result is what you do not like -
isn't that an expression of political preference rather than law? Would
you complain in the same manner about "ignoring precedent" if it was a
decision you liked better policy wise?
Shumel,
Of course results matter. They matter first and foremost. But process
matters too, and for the Supreme Court, it matters very much.
I think it matters that the Roberts Court is quick to discard
precedent. Our legal system demands consistency and predictability. The
system can not work when the rules keep changing. That does not mean
that there is never a time when an old precedent needs to be overruled,
but it does mean that the Court must do so rarely and carefully. Think
of the contrast between the narrow, fractured rulings in this term?s
school segregation cases and the unanimous 9-0 ruling in Brown v. Board
of Education, where the Court did explicitly overturn its previous
rulings upholding segregation.
I also think, specifically, that it matters that the Court?s rulings
have come from such a deeply divided court. The Court is at the height
of its authority, especially its moral authority, when it speaks with
one voice, or at least with a broad consensus. Further, so many of its
recent ruling have been hyper-technical and have provided lower courts
with the type of guidance they need to apply the law fairly and
accurately.
So, yes, if the Court were reaching decision with results I liked, but
doing do by routinely upsetting precedent by 5-4 votes, I would be
deeply troubled.
As for your broader point, of course taking sides in a case means
expressing a ?political preference.? (I would have said ?policy
preference,? since that might make clear that our involvement is in
support of, or in opposition to, specific policy positions rather than
political parties.)
One of the things which makes Court watching so interesting is that all
of the Justices are working with the same raw material ? the same
statutes, opinions, and, of course, the same Constitution. Yet, they
often reach different conclusions. Your question implies there is
something untoward about that. I don?t see it that way at all.
It is naive to think that political or other ideologies play no role in
Court decisions. Justices aren't automatons, nor would I want them to
be. They bring to the Court their personal backgrounds, experiences,
prior rulings and much more. To say that Justices Scalia and Breyer or
Thomas and Ginsberg are blank slates is ridiculous. That's why they
wind up on differing sides of so many cases. And in the same way, the
history and experiences ? and political views ? of the Reform Movement
shape our approach to individual cases.
This is one reason why the Reform Movement has become increasingly
active in the debates over nominees to the Federal Bench, and,
especially, to the Supreme Court. One clear lesson of this Supreme
Court term, and the last week full of 5-4 decisions in particular, is
that it turns out that it does matter who sits on the Court. Does
anyone doubt that at least some of these cases would have come out
differently if John Roberts was not Chief Justice? Or if Samuel Alito
was not on the Court? And was anyone at all surprised by their votes on
key cases? Although many Jewish groups joined briefs in cases this
term, and many issued statements critical of decisions, only the Reform
Movement and the National Council of Jewish Women opposed Alito?s
nomination. (An insightful, prescient, and well-argued call on Jewish
organizations to participate in the confirmation process is here. It
is, of course, written by your correspondent.)
What does the result in, for example, Hein, mean? It means it will be
far, far more difficult for those who want to challenge government
funds flowing to religious institutions to do so. It means that those
who are working to defend the wall of separation between church and
state, which has meant so much to the American Jewish community, have
lost an effective tool. It is important to remember that it is
precisely that wall, and the principle of separation between church and
state, which has allowed the Jewish community to flourish in the United
States. That wall has protected religion from the often-heavy hand of
government, and sheltered not only our community but an astonishing and
inspiring array of faiths.
The same dynamic can be seen in the school segregation cases, in
Carhart (the late term abortion case), and a dozen other cases this
term. In every Supreme Court case, you make a judgment as to the legal
impact and the policy impact of the case. Under the Warren and Burger
Courts, the pattern had been positive in both, since the Court had
moved to find in the Constitution a robust expansion of the rights of
women and minorities and expansion of our civil liberties and an
expansion of both religion clauses. The result strengthened America?s
culture of religious, racial and ethnic pluralism and tolerance. This
Court however is abandoning those core values with alarming speed, and
with far-reaching implications for both Jewish interests and Jewish
values.
So, Shmuel, I make no apologies for taking sides. Our community has too
much at stake to stand on the sidelines.
Mark
Dear Mark,
Let us start by posing a question that will let readers get a sense of
what you think in general about the current Supreme Court. Of the
several important decisions the court have reached last week, can you
tell us which one you find most disturbing and which one the most
encouraging - and why?
Best
Rosner
Shmuel,
I know you meant to start off with an easy question, but this is much
harder than it might seem! It is hard because there are so many
disturbing cases to comment on, and so few which are at all encouraging.
The good news first. Perhaps the most encouraging development came last
Friday, the day after the Court formally concluded its term. The Court,
reversing itself, voted to hear the appeal of the prisoners held at
Guantanamo. The case sets up a test of one of the central principles of
the administration's detention policies: that it can hold "enemy
combatants" without allowing them habeas corpus proceedings, which have
been used in English and American law for centuries to challenge the
legality of detentions.
Early this term, the Court had voted to deny a hearing in this exact
same case. Supreme Court watchers have not been able to come up with
another example of the court agreeing to hear a case which it turned
down earlier in the term.
As I will discuss below, and most likely throughout our dialogue, the
barring of the courthouse door has been a recurring theme for this
Court. That is why I'm so appalled by the status of the Guantanamo
detainees; not that they have not won their cases, but that they have
been denied access to the courthouse all together. The fact that the
Court is now willing to hear the case suggests that these detainees
will, after 6 years, get their day in court.
So much for the encouraging news. Disturbing cases are easy to come by;
the challenge is choosing one.
I think that the Term's most significant church/state case - Hein v.
Freedom From Religion Foundation - illustrates many of the disturbing
trends of the term. The case, decided by a 5-4 vote, concerned
President Bush's "Faith Based Initiative," which allows government
funding to flow to religious institutions. However, the specific issue
is one that only a lawyer could love. The case is not about the
constitutionality of the initiative, but rather the question of who is
qualified to bring a lawsuit challenging the program. The general rule
is that taxpayers do not have a right (do not have, in legal terms,
standing) to challenge the expenditure of government funds. The rule
makes sense; you can imagine the chaos which would ensue if anyone who
was unhappy with a governmental policy (the Iraq war, for example)
could bring suit to stop the government from spending funds for that
policy.
For 40 years, however, the Court has recognized an exception to that
general prohibition, allowing "taxpayer standing" for challenges under
the First Amendment's Establishment Clause concerning government
spending in support of religious activities or institutions. That
exemption also makes sense. The Establishment Clause reflects the
Framers of the Constitution's view that religion is so important that
the constitutional rules concerning it are different.
Hein is particularly disturbing for two reasons, over and above its
result. First, as noted above, I am especially leery when a decision
closes off the court house to plaintiffs.
In Hein the Court did not just rule against the challenge; it
effectively told the plaintiff he could not even get into the courtroom.
Second, the Hein decision illustrates the radicalism of the Court, and
its willingness to walk away from its own past decisions. Hein turned
on the interpretation of a 40 year old case - Flast v. Cohen. Flast (an
8-1 decision, by the way) had generally, almost universally, been
understood to allow taxpayers to challenge government spending which,
they believe, violated the Establishment Clause.
In Hein the Court did not overrule Flast (which at least would have had
the virtues of clarity and intellectual honesty). The decision,
instead, rested on the fact that the funding challenged in Hein was
directed by the Executive Branch (under a broad grant of discretion
from Congress) rather than a specific Congressional appropriation.
Writing on the Huffington Post, Geoffrey Stone, Dean of the University
of Chicago Law School, explains how this Court has treated the
principle of stare decisis (respect for past decisions): The tactic, in
short, is to purport to respect a precedent while in fact interpreting
it into oblivion. Every first-year law student understands the
technique. It works like this: "Appellant argues that Smith v. Jones
governs the case before us. But Smith v. Jones arose out of an accident
that occurred on a Tuesday. The accident in this case occurred on a
Thursday. We do not overrule Smith v. Jones, but we limit it to
accidents that occur on Tuesdays."
No less an authority than Justice Scalia made the same point in Hein,
where he wrote that "laying just claim to honoring stare decisis
requires more than beating Flast to a pulp and then sending it out to
the lower courts weakened, denigrated, more incomprehensible than ever,
and yet somehow technically alive." And he was in the majority!
The Court, in my view, spent much of this term beating its own
precedents to a pulp. We will, I hope, talk more about that as our
dialogue continues. Analysis: Courts only slightly less open to
church-state suits after Hein case
Associated Baptist Press - June 28, 2007
Analysis:
Courts only slightly less open to church-state suits after Hein case
By Robert Marus
Associated Baptist Press
WASHINGTON (ABP) -- Church-state experts said the Supreme Court, in a
June 25 decision that limited taxpayers' ability to sue the government
over violations of religious freedom, didn't go as far as it could have.
However, they agreed, the ruling still has the potential to discourage
some lawsuits aimed at stopping government promotion of religion.
Whatever the case, they said, the decision in Hein v. Freedom From
Religion Foundation provides some clues about the high court's First
Amendment future. It shows that the panel's two newest members -- Chief
Justice John Roberts and Justice Samuel Alito -- may not be as inclined
as their more activist conservative colleagues to do away with
well-established precedents on church-state separation.
The Hein ruling "is not a revolutionary decision," said Bob Tuttle, a
professor at George Washington University who also tracks church-state
law for the Roundtable on Religion and Social Welfare Policy, a
non-partisan group sponsored by the Rockefeller Institute and the Pew
Charitable Trusts.
In the 5-4 decision, the court's majority said that status as a
taxpayer does not qualify one to sue over federal expenditures not
clearly tied to congressional action, even when those expenditures
violate religious freedom.
The decision is a victory for the White House -- over whose faith-based
initiative the lawsuit was initially filed -- and something of a
setback for advocates of strong church-state separation. It also marks
the first time the Supreme Court has dealt with President Bush's
efforts to expand the government's ability to fund social services
through churches and other religious charities.
One of the reasons the controlling opinion in Hein is not
revolutionary, the experts said, is because it neither overruled nor
broadened the court's earlier Flast v. Cohen decision, which allows
taxpayers to sue the government over violations of the First
Amendment's establishment clause. The clause -- the first 10 words of
the amendment -- prevents the government from endorsing a religion.
The federal courts have long held that taxpayers do not generally have
standing to sue the government over how it disburses funds -- because
the connection between individual taxpayer contributions and
expenditures is too remote. Individuals must prove a specific "injury,"
in legal terms, in order to sue the government over the way it spends
money.
But in the 1968 Flast ruling, the Supreme Court recognized a special
exception to the generalized standing doctrine in regard to
establishment-clause cases.
The justices reasoned that the exception was necessary because of the
clause's special history. Many of the Constitution's framers -- such as
James Madison -- argued forcefully against European-style state support
and financing of churches, leading to the clause's existence.
Therefore, the Flast court said, the very fact that the government was
using public funds to support religion was in itself injurious to
taxpayers.
But Justice Samuel Alito, who authored the controlling plurality
opinion in the Hein ruling, said the current court believed the lawsuit
that originated the case was not allowable under Flast.
"The link between congressional action and constitutional violation
that supported taxpayer standing in Flast is missing here," he wrote.
He referred to a provision of the earlier ruling that said before the
courts could hear a taxpayer lawsuit in the case there must be a clear
nexus between congressional action to authorize government spending and
the fact that money was spent to promote religion.
In the Hein case, the Wisconsin-based Freedom From Religion Foundation
sued the White House over conferences it held to promote Bush's plan to
expand government support for religious charities. However, the funds
that paid for the conferences came from a general congressional
appropriation for White House activities.
Alito said taxpayers would have needed to challenge specific funding
decisions pursuant to congressional action in order to gain standing in
the case.
The court's four dissenters said such a distinction made no sense in
terms of upholding the establishment clause. Melissa Rogers, a
church-state lawyer who is a visiting professor at Wake Forest Divinity
School, agreed.
"The crux of the problem is that there's no principled basis for saying
that the injury to the taxpayer is any different when it is the
executive branch spending money to promote religion at its own
discretion and when the executive branch is spending money to promote
religion pursuant to specific directions by Congress," she wrote, in a
post analyzing the decision on her blog (melissarogers.typepad.com).
She said one consequence of such reasoning could be "the executive
branch doing some things it would not have done if the threat of
taxpayer lawsuits hung over its head."
Holly Hollman, general counsel for the Baptist Joint Committee for
Religious Liberty, said that's a special concern today, because
presidents and their administrations have shown far more willingness in
recent years to fund religious entities than they did 30 or 40 years
ago.
"Any narrowing of Flast is more problematic today than it was at the
time Flast was decided, because we are now at a time where we have seen
executive-branch action that pushes the envelope on establishment of
religion," she said.
Hollman -- who authored a friend-of-the-court brief in support of the
Freedom From Religion Foundation's argument in the Hein case -- noted,
as an example, the way Bush has advanced his plan for funding religious
charities. When he failed repeatedly to get congressional authorization
for expanding religious groups' eligibility for various charity-program
grants, he simply did it through executive orders.
"Now that we've been in this era of the faith-based initiative and
executive action, the threats are more real -- and we have a decision
that says some of those threats are practically immune from lawsuits,"
she said.
But George Washington Law School's Tuttle said most
establishment-clause lawsuits should still be able to proceed in the
wake of Hein.
"Assuming that there wasn't this very, very narrow reading of Flast ]
you should be able to find a plaintiff in most cases. There are all
kinds of bases for standing that aren't based on taxpayer standing," he
said.
Tuttle referred to many establishment-clause cases where plaintiffs can
claim injury other than simply as a taxpayer. For instance, there's the
case of a lawsuit against a monument of the Ten Commandments that
former Alabama Chief Justice Roy Moore had placed in the rotunda of the
state's judicial headquarters building. A group of attorneys who
regularly practiced in the building and took offense at seeing the
monument regularly sued successfully to have it removed.
Rogers noted that, in Hein, the justices also "kept the door open to
taxpayer challenges that target grants and other monies that are
disbursed by the executive branch pursuant to statutory programs. That
is where the bulk of the lawsuits are focused, and those lawsuits will
proceed unimpeded."
Perhaps the most important part of the decision, however, was the
apparent division over judicial temperament it revealed between Roberts
and Alito and the court's most conservative members.
Justice Antonin Scalia, in a blistering opinion concurring in the
judgment but not in Alito's reasoning, argued forcefully that the court
should have overturned Flast, doing away with taxpayer standing in
church-state cases altogether.
Scalia characterized Alito's reasoning in distinguishing the taxpayers
in Hein from those in Flast as "meaningless and disingenuous
distinctions" of the sort "that deaden the soul of the law."
He continued, "Either Flast was correct, and must be accorded the wide
application that it logically dictates, or it was not, and must be
abandoned in its entirety." Justice Clarence Thomas joined Scalia in
the opinion, which echoed arguments found in friend-of-the-court briefs
on the case that some conservative Christian groups submitted.
But the fact that Alito -- who was joined by Chief Justice John Roberts
and Justice Anthony Kennedy -- did not accept those arguments and
overturn Flast is a small victory for those who support strong
enforcement of the establishment clause, the experts said.
It may indicate that Alito and Roberts, who had ruled little on
establishment-clause cases in their judicial careers, are not willing
to make radical changes to the precedents in that area. The court's
decisions on the First Amendment in the middle part of the 20th Century
placed a high value on preventing any government support for religion.
"[W]ith a new court in place, hopes (or fears, depending which side you
are on) were high that the court would begin to wipe the
establishment-clause slate clean in many respects," wrote Rogers. "The
Hein case was the first opportunity for the Roberts Court to begin this
project."
David Stras, writing for the Supreme Court-tracking website SCOTUSblog
(www.scotusblog.com), said the decision suggests Alito and Roberts,
even if they disagree with the precedents' view of the establishment
clause, will nonetheless be gradualists rather than radicals in
charting a new course.
"Perhaps more than any other case, yesterday's decision in Hein
demonstrates that Chief Justice Roberts and Justice Alito value
judicial norms differently than Justices Scalia and Thomas," Stras
wrote. Roberts and Alito, he continued, "are satisfied in making
incremental moves in the law rather than taking the bold steps
advocated by" Scalia and Thomas.
The Hein decision is No. 06-157.
National Secular Society (UK) statement - July 2, 2007
American Supreme Court swing to the right, undermining First Amendment
National Secular Society
President George W. Bush got what he hoped for from his new Supreme
Court this week " a distinct swing to the right.
Among decisions that have alarmed liberals, the Court threw out a
lawsuit from the Freedom from Religion Foundation which challenged
Bushs faith-based initiative. This now gives the born-again President
the right to continue the programme which he created by executive order
without congressional approval.
The faith-based decision now protects Bush's programs from legal
challenges and indicates that the court will be less concerned about
keeping church and state separate, so later decisions will be more
sympathetic to government's cooperating with religious institutions,
said said Tom Goldstein, a Harvard Law School lecturer on Supreme Court
litigation
The plaintiffs in the case, including taxpayers from the Freedom From
Religion Foundation, had argued that the funding of the White House
Office of Faith-Based and Community Initiatives, violated the
established separation of church and state, putting the government in
the position of steering hundreds of millions of taxpayer dollars to
groups with strong religious affiliations. The plaintiffs argued that
Bush was spending taxpayer funds to hold conferences at which religious
groups were urged to apply for federal grants.
But the Supreme Court, while not ruling directly on the First Amendment
church-state issue, found that the taxpayers who sued the government
can not do so simply because they pay taxes.
Between 2001 and 2005, the United States awarded $1.7 billion to 159
faith-based groups for work overseas, none of which was being directly
monitored for church-state separation compliance. Some secular groups
that did not receive the grants criticised several conditions attached
to the expenditures on grounds that they were designed to favour
religious organizations.
Bush explained that he created the White House office on faith-based
initiatives after Congress refused to pass the legislation. "I got a
little frustrated in Washington because I couldn't get the bill
passed," Bush said in March 2004. "Congress wouldn't act, so I signed
an executive order -- that means I did it on my own."
Bush hailed the court decision, calling it "a substantial victory for
efforts by Americans to more effectively aid our neighbours in need of
help. The faith-based and community initiative can remain focused on
strengthening America's armies of compassion and expanding their good
works."
But Annie Laurie Gaylor, a plaintiff in the case and co president of
the Freedom From Religion Foundation, said the court's ruling has
prevented a legal examination of the larger issue of church-state
relations.
BBC News - June 25, 2007
'No challenge' to US faith scheme
Taxpayers cannot challenge a White House initiative that helps
religious groups get federal funds for social programmes, the US
Supreme Court says.
The justices ruled by 5-4 that a group called Freedom From Religion
Foundation had no legal right to bring the case.
The group had objected to government conferences held to encourage
religious groups to apply for federal grants.
The ruling did not address whether the scheme violates the
constitutionally required church-state separation.
The White House's Office of Faith-Based and Community Initiatives was
set up soon after George W Bush became president in 2001.
It was designed to help religious and community groups better compete
for federal funds for programmes tackling problems such as poverty,
substance abuse and homelessness.
'Parade of horribles'
The Freedom From Religion Foundation said officials for the group
violated the constitution by holding conferences which favoured
faith-based groups over secular ones.
The foundation's lawsuit was based on a 1968 Supreme Court ruling that
allowed taxpayers to challenge the government over programmes promoting
religion in schools.
But government lawyers successfully argued that the precedent allowed
challenges only if the programme in question was funded by a specific
bill in Congress.
The funding for Mr Bush's faith-based social programmes came from a
White House discretionary fund.
Giving the majority ruling, Justice Samuel Alito said the group had
"set out a parade of horribles that they claim could occur" if the
faith-based initiative were not stopped.
"Of course none of these things has happened," he wrote, adding that
Congress could quickly step in if there were a problem.
White House spokeswoman Emily Lawrimore said the ruling was "a
substantial victory for efforts by Americans to more effectively aid
our neighbours in need of help".
The Rev Barry Lynn, of the group Americans United for Separation of
Church and State, said the decision was disappointing but would not
prevent other cases being brought.
"Taxpayers should be allowed to challenge public funding of religion,
whether the money is allocated by Congress or the White House," he said.
Freedom From Religion Foundation
PO Box 750 Madison, WI 53701 (608) 256-8900
http://www.ffrf.org
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Media Analyses of Supreme Court's 5-4 Hein v FFRF Decision
Via NY Transfer News Collective All the News that Doesn't Fit
Freedom From Religion Foundation - Jul 3, 2007
http://www.ffrf.org
Media Analyses of Supreme Court's 5-4 Decision in Hein v FFRF
Media and columnists have started to digest the ramifications of the
Supreme Court's ruling in Hein v. the Freedom From Religion Foundation,
and general analyses of this session's series of retrogressive 5-4
decisions. News articles follow list.
Hard right, by Abdon M. Pallasch, Legal Affairs Reporter, Chicago
Sun-Times, July 2, 2007
http://www.suntimes.com/news/metro/451960,CST-NWS-contro02.article
High court remains politically divided; More 5-4 Rulings mark shift to
right, by Charlie Savage, Boston Globe (June 30, 2007)
http://www.boston.com/news/nation/w...06/30/high_court_remains_politically_divided/
Mark Pelavin, leading lobbying for the Religious Action center of
Jewish Reform movement, in a guest column for Israel's daily, Haaretz,
talks about the disturbing ramifications of Hein v. FFRF (July 1, 2007):
http://www.haaretz.com/hasen/pages/rosnerGuest.jhtml?itemNo=877050
Analysis: Courts only slightly less open to church-state suits after
Hein case, by Robert Marus, Associated Baptist Press (June 28, 2007)
http://www.abpnews.com/2618.article
American Supreme Court swing to the right, undermining First Amendment,
National Secular Society (UK) statement, July 2, 2007
http://www.secularism.org.uk/83429.html
"No Challenge" to US faith scheme, BBC News (straight coverage) (June
25, 2007) http://news.bbc.co.uk/2/hi/americas/6239146.stm
Chicago Sun Times - Jul 2, 2007
Hard Right
By Abdon M. Pallasch
In the locker room of the losing team, each speaker used some version
of this line, which always seemed to get laughs: "It was another 5-4
decision, and I'm not going to waste your time telling you who were the
five and who were the four."
The new conservative majority on the U.S. Supreme Court is delivering
the decisions Republican presidents have sought for decades, five law
professor/practitioners told 170 young attorneys gathered at the
Chicago offices of Mayer, Brown, Rowe & Maw last week.
And here, the lawyers said, is what you can look forward to as a
result: More corporate-funded and union-funded "issue" or "attack" ads
in the waning days of political campaigns; corporations mandating
secrecy of salaries since it's harder now to sue if you don't know how
much less you're earning than your peers; and more price-fixing by
companies less worried about pesky suits, the panelists said.
It's all bad news for the American Constitution Society, a liberal
counterpart to the Federalist Society of conservative law students and
lawyers that helped birth the current majority of conservative jurists
on the court.
While not all starry-eyed liberals, the lawyers and panelists at this
gathering of the Chicago chapter mostly lamented what they saw as a
wholesale overturning of precedents even as the justices wrote that
they were not overturning precedents.
In their ruling overturning the McCain-Feingold ban on "issue" ads in
the final days of a campaign, the justices said they were not
overturning their 2003 decision upholding the ban.
In their ruling upholding the ban on "partial-birth abortion," the
justices said they were not overturning their 2003 decision that found
the ban unconstitutional.
Even the victories for the "liberal" side were only 5-4, with Justice
Anthony Kennedy narrowly siding with them. Indeed, the panelists
agreed, it is Kennedy who holds the balance of power and at whom many
Supreme Court practitioners aim their arguments.
In the 5-4 decision upholding the state of Massachusetts' right to sue
the EPA for failing to enforce clean-air standards, panelist David
Franklin, a DePaul University law professor, noted Justice Antonin
Scalia's strong dissent, that with one more conservative vote on the
court, could become law.
"Scalia said that CO2 is not a pollutant because it does its dirty work
in space," Franklin said. "He got four votes for that, so be afraid. Be
very afraid," he said to laughter from the crowd.
Mayer, Brown partner Jeffrey Sarles started and ended his talk by
emphasizing that "the opinions expressed are those of the speaker and
do not necessarily reflect those of the firm."
Even where the new majority has not overturned precedent, the changes
it has made to "procedural" law "certainly narrows the doorway into the
courthouse," Sarles said.
The majority ruled last Monday that the Wisconsin-based "Freedom From
Religion Foundation" did not have the right to sue President Bush over
his dispensing tax money for "faith-based initiatives."
A woman who said her salary was lower than her male peers did not
have the right to sue because it took her too long to find out her
fellow employees' salaries, the court ruled.
A prisoner who took 17 days instead of 14 to file his request for an
appeal after a judge issued an order that he could have 17 days can't
appeal because the statute says 14 days, the court ruled.
In the days after the meeting, the court issued more rulings along the
same lines, including one Thursday that threw out school affirmative
action programs in two cities while saying it was being "faithful" to
the Brown v. Board of Education decision that outlawed segregated
schools.
Conservative lawyers like the 40 at a Federalist Society dinner at
Maggiano's last Thursday (the "winning" team) believe this court is
swinging the pendulum back from liberal rulings of the last four
decades, and they expect to see rulings to their liking for the
foreseeable future.
The troops will eventually come home from Iraq and President Bush's tax
breaks for the wealthy may end if a Democrat succeeds him. But the
president's youthful, conservative appointees to the court will be
making rulings for decades.
"I don't see any hope for any of the five members of the current
majority threatening to retire any time soon," Sarles said.
Boston Globe - Jun 30, 2007
High court remains politically divided
More 5-4 rulings mark shift to right
By Charlie Savage
Globe Staff
WASHINGTON -- One year ago, Chief Justice John Roberts laid out a
vision of moving the Supreme Court away from its recent history of
politically divided 5-to-4 rulings, saying he hoped to use an approach
to deciding cases that would achieve "broader agreement among the
justices."
"The rule of law is strengthened when there is greater coherence and
agreement about what the law is," Roberts said, telling graduates and
parents at Georgetown University that the court must try harder to
achieve unanimity.
But as the Supreme Court completes its first full term with Roberts and
President Bush's other nominee, Justice Samuel Alito, consensus has
failed to materialize. Instead, the court's term was defined by a
series of 5-to-4 decisions between sharply divided liberal and
conservative factions.
The court handed down 24 such rulings in its 72 cases -- the highest
percentage of one-vote decisions in at least a decade, according to
data compiled by Tom Goldstein , founder of the court-watching website,
SCOTUS Blog.
The close decisions encompassed nearly every major issue to come before
the court, including abortion rights, the use of race in school
integration plans, gender discrimination, campaign finance rules, free
speech, and global warming.
Roberts's faction prevailed in all but one of the major cases decided
by one vote. Fulfilling predictions that the arrival of Roberts and
Alito would shift the court to the right, the just-completed term gave
the conservative legal movement its strongest taste of success in its
multidecade project to reshape the federal judiciary.
Curt Levey of the Committee for Justice, which promotes the
confirmation of conservative judges, called the term "a victory for
moving the court away from its liberal position of the past several
decades." He also said the frequent 5-to-4 outcomes were not
surprising, given the make up of the court.
"I think where we have had these hot-button issues, where there is just
a huge gulf between what the four liberals want and what the rest of
the court wants, it is hard to imagine . . . that there would be
consensus," he said.
Still, Laurence Tribe , a liberal-leaning law professor at Harvard
University, warned that the recent history of 5-to-4 holdings on major
cases, along with the court's change in direction on several
high-profile issues, could erode respect for the court -- a respect
which is based on the idea that its decisions are based on law, not
politics.
"Any member of the general public who pays the slightest attention to
what the court is doing has to regard it now as almost entirely a
political body," Tribe said. "The fact that many people are perceiving
that new faces means new law really undercuts . . . the court's role as
an institution."
The court's term was marked by the views of Justice Anthony M. Kennedy,
who often provided the deciding vote between the factions of four
liberal and four conservative justices. Kennedy alone was in the
majority in every one of the 5-to-4 decisions.
A nominee of President Reagan, Kennedy sided with the liberals in just
one major case, Massachusetts v. E.P.A., which allowed states to sue
the federal government for failing to regulate gases that contribute to
global warming. Otherwise, Kennedy sided with conservatives in the most
important 5-to-4 decisions:
In Hain v. Freedom from Religion Foundation, for example, Kennedy and
the conservative bloc ruled that taxpayers could not challenge Bush's
faith-based initiatives program, which helps religious groups win
federal grants.
In Ledbetter v. Goodyear Tire, the court restricted the ability of
women to sue their employers over past gender discrimination, even if
it has an impact on their current salary.
In the so-called "Bong Hits 4 Jesus" case, the court ruled that public
schools may punish a student who displays a sign at school events that
conflicts with the school's anti drug policies.
And in Gonzales v. Carhart, the court upheld the federal Partial-Birth
Abortion Ban Act of 2003. The ruling was the first time the court
upheld an abortion restriction with no exception for the health of the
woman.
The case represented a quick reversal for the court, which had struck
down a similar state law in 2000. The abortion case was one of several
in which the court made an abrupt shift from recent holdings, based on
the views of its newest justices.
In Federal Election Commission v. Wisconsin Right to Life, for example,
the court held that the government couldn't restrict corporations and
unions from running "issue ads" that implicitly criticize candidates
close to an election. In 2002, the court had upheld such restrictions
on corporations and unions.
And in a set of cases involving school systems in Seattle and
Louisville, the court ruled that local governments may not classify
children by race to achieve diversity when assigning students to public
schools. The ruling reversed course from a 2003 case in which the court
had upheld a race-conscious admissions policy at a law school.
The 5-to-4 decision in the race case provoked an unusually bitter
dissent from the court's senior justice, John Paul Stevens, who
suggested that the shifting stance on race was entirely because of
political changes on the court. And Justice Stephen G. Breyer quipped
from the bench that "It is not often in the law that so few have so
quickly changed so much."
Dennis Hutchinson, a University of Chicago law professor and Supreme
Court historian, said that the frequent 5-to-4 votes of the current era
stand in marked contrast to previous periods, when the court more often
managed to reach unanimous decisions. In some eras, justices
consciously tried to maintain consensus to protect the institution's
reputation, especially in politically sensitive cases such as Brown v.
Board of Education, which outlawed school segregation.
When new justices have arrived in the past, he added, many have waited
a few years before seeking to overturn precedents. But this term, he
said, the court moved forward with changes at a "breathtaking rate."
Ha'aretz - Jul 1, 2007
Guest Column: Exchange on Hein v. FFRF
by Mark Pelavin
Leading lobbyist for the Religious Action Center of Jewish Reform
movement will discuss recent decisions by the Supreme Court.
Mark J. Pelavin is the Associate Director of the Religious Action
Center of Reform Judaism (RAC). He is one of the Jewish community's
leading legislative strategists, and, having worked in Washington for
over 15 years, one of its senior lobbyists.
Mr. Pelavin, an attorney, plays a leadership role on the RAC's entire
agenda, although he is particularly recognized for his expertise on
issues concerning the separation of church and state. He is an expert
in confronting the religious right.
Our discussion this week will focus of the recent decisions by the US
Supreme Court. Readers can send questions to
rosnersdomain@haaretz.co.il.
Dear Mark,
You write that "Hein is particularly disturbing for two reasons, over
and above its result". But if the result is what you do not like -
isn't that an expression of political preference rather than law? Would
you complain in the same manner about "ignoring precedent" if it was a
decision you liked better policy wise?
Shumel,
Of course results matter. They matter first and foremost. But process
matters too, and for the Supreme Court, it matters very much.
I think it matters that the Roberts Court is quick to discard
precedent. Our legal system demands consistency and predictability. The
system can not work when the rules keep changing. That does not mean
that there is never a time when an old precedent needs to be overruled,
but it does mean that the Court must do so rarely and carefully. Think
of the contrast between the narrow, fractured rulings in this term?s
school segregation cases and the unanimous 9-0 ruling in Brown v. Board
of Education, where the Court did explicitly overturn its previous
rulings upholding segregation.
I also think, specifically, that it matters that the Court?s rulings
have come from such a deeply divided court. The Court is at the height
of its authority, especially its moral authority, when it speaks with
one voice, or at least with a broad consensus. Further, so many of its
recent ruling have been hyper-technical and have provided lower courts
with the type of guidance they need to apply the law fairly and
accurately.
So, yes, if the Court were reaching decision with results I liked, but
doing do by routinely upsetting precedent by 5-4 votes, I would be
deeply troubled.
As for your broader point, of course taking sides in a case means
expressing a ?political preference.? (I would have said ?policy
preference,? since that might make clear that our involvement is in
support of, or in opposition to, specific policy positions rather than
political parties.)
One of the things which makes Court watching so interesting is that all
of the Justices are working with the same raw material ? the same
statutes, opinions, and, of course, the same Constitution. Yet, they
often reach different conclusions. Your question implies there is
something untoward about that. I don?t see it that way at all.
It is naive to think that political or other ideologies play no role in
Court decisions. Justices aren't automatons, nor would I want them to
be. They bring to the Court their personal backgrounds, experiences,
prior rulings and much more. To say that Justices Scalia and Breyer or
Thomas and Ginsberg are blank slates is ridiculous. That's why they
wind up on differing sides of so many cases. And in the same way, the
history and experiences ? and political views ? of the Reform Movement
shape our approach to individual cases.
This is one reason why the Reform Movement has become increasingly
active in the debates over nominees to the Federal Bench, and,
especially, to the Supreme Court. One clear lesson of this Supreme
Court term, and the last week full of 5-4 decisions in particular, is
that it turns out that it does matter who sits on the Court. Does
anyone doubt that at least some of these cases would have come out
differently if John Roberts was not Chief Justice? Or if Samuel Alito
was not on the Court? And was anyone at all surprised by their votes on
key cases? Although many Jewish groups joined briefs in cases this
term, and many issued statements critical of decisions, only the Reform
Movement and the National Council of Jewish Women opposed Alito?s
nomination. (An insightful, prescient, and well-argued call on Jewish
organizations to participate in the confirmation process is here. It
is, of course, written by your correspondent.)
What does the result in, for example, Hein, mean? It means it will be
far, far more difficult for those who want to challenge government
funds flowing to religious institutions to do so. It means that those
who are working to defend the wall of separation between church and
state, which has meant so much to the American Jewish community, have
lost an effective tool. It is important to remember that it is
precisely that wall, and the principle of separation between church and
state, which has allowed the Jewish community to flourish in the United
States. That wall has protected religion from the often-heavy hand of
government, and sheltered not only our community but an astonishing and
inspiring array of faiths.
The same dynamic can be seen in the school segregation cases, in
Carhart (the late term abortion case), and a dozen other cases this
term. In every Supreme Court case, you make a judgment as to the legal
impact and the policy impact of the case. Under the Warren and Burger
Courts, the pattern had been positive in both, since the Court had
moved to find in the Constitution a robust expansion of the rights of
women and minorities and expansion of our civil liberties and an
expansion of both religion clauses. The result strengthened America?s
culture of religious, racial and ethnic pluralism and tolerance. This
Court however is abandoning those core values with alarming speed, and
with far-reaching implications for both Jewish interests and Jewish
values.
So, Shmuel, I make no apologies for taking sides. Our community has too
much at stake to stand on the sidelines.
Mark
Dear Mark,
Let us start by posing a question that will let readers get a sense of
what you think in general about the current Supreme Court. Of the
several important decisions the court have reached last week, can you
tell us which one you find most disturbing and which one the most
encouraging - and why?
Best
Rosner
Shmuel,
I know you meant to start off with an easy question, but this is much
harder than it might seem! It is hard because there are so many
disturbing cases to comment on, and so few which are at all encouraging.
The good news first. Perhaps the most encouraging development came last
Friday, the day after the Court formally concluded its term. The Court,
reversing itself, voted to hear the appeal of the prisoners held at
Guantanamo. The case sets up a test of one of the central principles of
the administration's detention policies: that it can hold "enemy
combatants" without allowing them habeas corpus proceedings, which have
been used in English and American law for centuries to challenge the
legality of detentions.
Early this term, the Court had voted to deny a hearing in this exact
same case. Supreme Court watchers have not been able to come up with
another example of the court agreeing to hear a case which it turned
down earlier in the term.
As I will discuss below, and most likely throughout our dialogue, the
barring of the courthouse door has been a recurring theme for this
Court. That is why I'm so appalled by the status of the Guantanamo
detainees; not that they have not won their cases, but that they have
been denied access to the courthouse all together. The fact that the
Court is now willing to hear the case suggests that these detainees
will, after 6 years, get their day in court.
So much for the encouraging news. Disturbing cases are easy to come by;
the challenge is choosing one.
I think that the Term's most significant church/state case - Hein v.
Freedom From Religion Foundation - illustrates many of the disturbing
trends of the term. The case, decided by a 5-4 vote, concerned
President Bush's "Faith Based Initiative," which allows government
funding to flow to religious institutions. However, the specific issue
is one that only a lawyer could love. The case is not about the
constitutionality of the initiative, but rather the question of who is
qualified to bring a lawsuit challenging the program. The general rule
is that taxpayers do not have a right (do not have, in legal terms,
standing) to challenge the expenditure of government funds. The rule
makes sense; you can imagine the chaos which would ensue if anyone who
was unhappy with a governmental policy (the Iraq war, for example)
could bring suit to stop the government from spending funds for that
policy.
For 40 years, however, the Court has recognized an exception to that
general prohibition, allowing "taxpayer standing" for challenges under
the First Amendment's Establishment Clause concerning government
spending in support of religious activities or institutions. That
exemption also makes sense. The Establishment Clause reflects the
Framers of the Constitution's view that religion is so important that
the constitutional rules concerning it are different.
Hein is particularly disturbing for two reasons, over and above its
result. First, as noted above, I am especially leery when a decision
closes off the court house to plaintiffs.
In Hein the Court did not just rule against the challenge; it
effectively told the plaintiff he could not even get into the courtroom.
Second, the Hein decision illustrates the radicalism of the Court, and
its willingness to walk away from its own past decisions. Hein turned
on the interpretation of a 40 year old case - Flast v. Cohen. Flast (an
8-1 decision, by the way) had generally, almost universally, been
understood to allow taxpayers to challenge government spending which,
they believe, violated the Establishment Clause.
In Hein the Court did not overrule Flast (which at least would have had
the virtues of clarity and intellectual honesty). The decision,
instead, rested on the fact that the funding challenged in Hein was
directed by the Executive Branch (under a broad grant of discretion
from Congress) rather than a specific Congressional appropriation.
Writing on the Huffington Post, Geoffrey Stone, Dean of the University
of Chicago Law School, explains how this Court has treated the
principle of stare decisis (respect for past decisions): The tactic, in
short, is to purport to respect a precedent while in fact interpreting
it into oblivion. Every first-year law student understands the
technique. It works like this: "Appellant argues that Smith v. Jones
governs the case before us. But Smith v. Jones arose out of an accident
that occurred on a Tuesday. The accident in this case occurred on a
Thursday. We do not overrule Smith v. Jones, but we limit it to
accidents that occur on Tuesdays."
No less an authority than Justice Scalia made the same point in Hein,
where he wrote that "laying just claim to honoring stare decisis
requires more than beating Flast to a pulp and then sending it out to
the lower courts weakened, denigrated, more incomprehensible than ever,
and yet somehow technically alive." And he was in the majority!
The Court, in my view, spent much of this term beating its own
precedents to a pulp. We will, I hope, talk more about that as our
dialogue continues. Analysis: Courts only slightly less open to
church-state suits after Hein case
Associated Baptist Press - June 28, 2007
Analysis:
Courts only slightly less open to church-state suits after Hein case
By Robert Marus
Associated Baptist Press
WASHINGTON (ABP) -- Church-state experts said the Supreme Court, in a
June 25 decision that limited taxpayers' ability to sue the government
over violations of religious freedom, didn't go as far as it could have.
However, they agreed, the ruling still has the potential to discourage
some lawsuits aimed at stopping government promotion of religion.
Whatever the case, they said, the decision in Hein v. Freedom From
Religion Foundation provides some clues about the high court's First
Amendment future. It shows that the panel's two newest members -- Chief
Justice John Roberts and Justice Samuel Alito -- may not be as inclined
as their more activist conservative colleagues to do away with
well-established precedents on church-state separation.
The Hein ruling "is not a revolutionary decision," said Bob Tuttle, a
professor at George Washington University who also tracks church-state
law for the Roundtable on Religion and Social Welfare Policy, a
non-partisan group sponsored by the Rockefeller Institute and the Pew
Charitable Trusts.
In the 5-4 decision, the court's majority said that status as a
taxpayer does not qualify one to sue over federal expenditures not
clearly tied to congressional action, even when those expenditures
violate religious freedom.
The decision is a victory for the White House -- over whose faith-based
initiative the lawsuit was initially filed -- and something of a
setback for advocates of strong church-state separation. It also marks
the first time the Supreme Court has dealt with President Bush's
efforts to expand the government's ability to fund social services
through churches and other religious charities.
One of the reasons the controlling opinion in Hein is not
revolutionary, the experts said, is because it neither overruled nor
broadened the court's earlier Flast v. Cohen decision, which allows
taxpayers to sue the government over violations of the First
Amendment's establishment clause. The clause -- the first 10 words of
the amendment -- prevents the government from endorsing a religion.
The federal courts have long held that taxpayers do not generally have
standing to sue the government over how it disburses funds -- because
the connection between individual taxpayer contributions and
expenditures is too remote. Individuals must prove a specific "injury,"
in legal terms, in order to sue the government over the way it spends
money.
But in the 1968 Flast ruling, the Supreme Court recognized a special
exception to the generalized standing doctrine in regard to
establishment-clause cases.
The justices reasoned that the exception was necessary because of the
clause's special history. Many of the Constitution's framers -- such as
James Madison -- argued forcefully against European-style state support
and financing of churches, leading to the clause's existence.
Therefore, the Flast court said, the very fact that the government was
using public funds to support religion was in itself injurious to
taxpayers.
But Justice Samuel Alito, who authored the controlling plurality
opinion in the Hein ruling, said the current court believed the lawsuit
that originated the case was not allowable under Flast.
"The link between congressional action and constitutional violation
that supported taxpayer standing in Flast is missing here," he wrote.
He referred to a provision of the earlier ruling that said before the
courts could hear a taxpayer lawsuit in the case there must be a clear
nexus between congressional action to authorize government spending and
the fact that money was spent to promote religion.
In the Hein case, the Wisconsin-based Freedom From Religion Foundation
sued the White House over conferences it held to promote Bush's plan to
expand government support for religious charities. However, the funds
that paid for the conferences came from a general congressional
appropriation for White House activities.
Alito said taxpayers would have needed to challenge specific funding
decisions pursuant to congressional action in order to gain standing in
the case.
The court's four dissenters said such a distinction made no sense in
terms of upholding the establishment clause. Melissa Rogers, a
church-state lawyer who is a visiting professor at Wake Forest Divinity
School, agreed.
"The crux of the problem is that there's no principled basis for saying
that the injury to the taxpayer is any different when it is the
executive branch spending money to promote religion at its own
discretion and when the executive branch is spending money to promote
religion pursuant to specific directions by Congress," she wrote, in a
post analyzing the decision on her blog (melissarogers.typepad.com).
She said one consequence of such reasoning could be "the executive
branch doing some things it would not have done if the threat of
taxpayer lawsuits hung over its head."
Holly Hollman, general counsel for the Baptist Joint Committee for
Religious Liberty, said that's a special concern today, because
presidents and their administrations have shown far more willingness in
recent years to fund religious entities than they did 30 or 40 years
ago.
"Any narrowing of Flast is more problematic today than it was at the
time Flast was decided, because we are now at a time where we have seen
executive-branch action that pushes the envelope on establishment of
religion," she said.
Hollman -- who authored a friend-of-the-court brief in support of the
Freedom From Religion Foundation's argument in the Hein case -- noted,
as an example, the way Bush has advanced his plan for funding religious
charities. When he failed repeatedly to get congressional authorization
for expanding religious groups' eligibility for various charity-program
grants, he simply did it through executive orders.
"Now that we've been in this era of the faith-based initiative and
executive action, the threats are more real -- and we have a decision
that says some of those threats are practically immune from lawsuits,"
she said.
But George Washington Law School's Tuttle said most
establishment-clause lawsuits should still be able to proceed in the
wake of Hein.
"Assuming that there wasn't this very, very narrow reading of Flast ]
you should be able to find a plaintiff in most cases. There are all
kinds of bases for standing that aren't based on taxpayer standing," he
said.
Tuttle referred to many establishment-clause cases where plaintiffs can
claim injury other than simply as a taxpayer. For instance, there's the
case of a lawsuit against a monument of the Ten Commandments that
former Alabama Chief Justice Roy Moore had placed in the rotunda of the
state's judicial headquarters building. A group of attorneys who
regularly practiced in the building and took offense at seeing the
monument regularly sued successfully to have it removed.
Rogers noted that, in Hein, the justices also "kept the door open to
taxpayer challenges that target grants and other monies that are
disbursed by the executive branch pursuant to statutory programs. That
is where the bulk of the lawsuits are focused, and those lawsuits will
proceed unimpeded."
Perhaps the most important part of the decision, however, was the
apparent division over judicial temperament it revealed between Roberts
and Alito and the court's most conservative members.
Justice Antonin Scalia, in a blistering opinion concurring in the
judgment but not in Alito's reasoning, argued forcefully that the court
should have overturned Flast, doing away with taxpayer standing in
church-state cases altogether.
Scalia characterized Alito's reasoning in distinguishing the taxpayers
in Hein from those in Flast as "meaningless and disingenuous
distinctions" of the sort "that deaden the soul of the law."
He continued, "Either Flast was correct, and must be accorded the wide
application that it logically dictates, or it was not, and must be
abandoned in its entirety." Justice Clarence Thomas joined Scalia in
the opinion, which echoed arguments found in friend-of-the-court briefs
on the case that some conservative Christian groups submitted.
But the fact that Alito -- who was joined by Chief Justice John Roberts
and Justice Anthony Kennedy -- did not accept those arguments and
overturn Flast is a small victory for those who support strong
enforcement of the establishment clause, the experts said.
It may indicate that Alito and Roberts, who had ruled little on
establishment-clause cases in their judicial careers, are not willing
to make radical changes to the precedents in that area. The court's
decisions on the First Amendment in the middle part of the 20th Century
placed a high value on preventing any government support for religion.
"[W]ith a new court in place, hopes (or fears, depending which side you
are on) were high that the court would begin to wipe the
establishment-clause slate clean in many respects," wrote Rogers. "The
Hein case was the first opportunity for the Roberts Court to begin this
project."
David Stras, writing for the Supreme Court-tracking website SCOTUSblog
(www.scotusblog.com), said the decision suggests Alito and Roberts,
even if they disagree with the precedents' view of the establishment
clause, will nonetheless be gradualists rather than radicals in
charting a new course.
"Perhaps more than any other case, yesterday's decision in Hein
demonstrates that Chief Justice Roberts and Justice Alito value
judicial norms differently than Justices Scalia and Thomas," Stras
wrote. Roberts and Alito, he continued, "are satisfied in making
incremental moves in the law rather than taking the bold steps
advocated by" Scalia and Thomas.
The Hein decision is No. 06-157.
National Secular Society (UK) statement - July 2, 2007
American Supreme Court swing to the right, undermining First Amendment
National Secular Society
President George W. Bush got what he hoped for from his new Supreme
Court this week " a distinct swing to the right.
Among decisions that have alarmed liberals, the Court threw out a
lawsuit from the Freedom from Religion Foundation which challenged
Bushs faith-based initiative. This now gives the born-again President
the right to continue the programme which he created by executive order
without congressional approval.
The faith-based decision now protects Bush's programs from legal
challenges and indicates that the court will be less concerned about
keeping church and state separate, so later decisions will be more
sympathetic to government's cooperating with religious institutions,
said said Tom Goldstein, a Harvard Law School lecturer on Supreme Court
litigation
The plaintiffs in the case, including taxpayers from the Freedom From
Religion Foundation, had argued that the funding of the White House
Office of Faith-Based and Community Initiatives, violated the
established separation of church and state, putting the government in
the position of steering hundreds of millions of taxpayer dollars to
groups with strong religious affiliations. The plaintiffs argued that
Bush was spending taxpayer funds to hold conferences at which religious
groups were urged to apply for federal grants.
But the Supreme Court, while not ruling directly on the First Amendment
church-state issue, found that the taxpayers who sued the government
can not do so simply because they pay taxes.
Between 2001 and 2005, the United States awarded $1.7 billion to 159
faith-based groups for work overseas, none of which was being directly
monitored for church-state separation compliance. Some secular groups
that did not receive the grants criticised several conditions attached
to the expenditures on grounds that they were designed to favour
religious organizations.
Bush explained that he created the White House office on faith-based
initiatives after Congress refused to pass the legislation. "I got a
little frustrated in Washington because I couldn't get the bill
passed," Bush said in March 2004. "Congress wouldn't act, so I signed
an executive order -- that means I did it on my own."
Bush hailed the court decision, calling it "a substantial victory for
efforts by Americans to more effectively aid our neighbours in need of
help. The faith-based and community initiative can remain focused on
strengthening America's armies of compassion and expanding their good
works."
But Annie Laurie Gaylor, a plaintiff in the case and co president of
the Freedom From Religion Foundation, said the court's ruling has
prevented a legal examination of the larger issue of church-state
relations.
BBC News - June 25, 2007
'No challenge' to US faith scheme
Taxpayers cannot challenge a White House initiative that helps
religious groups get federal funds for social programmes, the US
Supreme Court says.
The justices ruled by 5-4 that a group called Freedom From Religion
Foundation had no legal right to bring the case.
The group had objected to government conferences held to encourage
religious groups to apply for federal grants.
The ruling did not address whether the scheme violates the
constitutionally required church-state separation.
The White House's Office of Faith-Based and Community Initiatives was
set up soon after George W Bush became president in 2001.
It was designed to help religious and community groups better compete
for federal funds for programmes tackling problems such as poverty,
substance abuse and homelessness.
'Parade of horribles'
The Freedom From Religion Foundation said officials for the group
violated the constitution by holding conferences which favoured
faith-based groups over secular ones.
The foundation's lawsuit was based on a 1968 Supreme Court ruling that
allowed taxpayers to challenge the government over programmes promoting
religion in schools.
But government lawyers successfully argued that the precedent allowed
challenges only if the programme in question was funded by a specific
bill in Congress.
The funding for Mr Bush's faith-based social programmes came from a
White House discretionary fund.
Giving the majority ruling, Justice Samuel Alito said the group had
"set out a parade of horribles that they claim could occur" if the
faith-based initiative were not stopped.
"Of course none of these things has happened," he wrote, adding that
Congress could quickly step in if there were a problem.
White House spokeswoman Emily Lawrimore said the ruling was "a
substantial victory for efforts by Americans to more effectively aid
our neighbours in need of help".
The Rev Barry Lynn, of the group Americans United for Separation of
Church and State, said the decision was disappointing but would not
prevent other cases being brought.
"Taxpayers should be allowed to challenge public funding of religion,
whether the money is allocated by Congress or the White House," he said.
Freedom From Religion Foundation
PO Box 750 Madison, WI 53701 (608) 256-8900
http://www.ffrf.org
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