God Save The United States and This Honorable Court

Earlier this week, the Supreme Court heard oral arguments in a case brought by the Freedom From Religion Foundation.  The Supreme Court has an important opportunity to put an end to federal taxpayer lawsuits by church-state separationists that is long overdue.  The a focuses on a challenge of using taxpayer dollars to fund a program of President Bushs faith-based initiative.  At the ACLJ, we filed a brief with the high court in support of the federal governments position.

There is no constitutional conflict in using taxpayer dollars to fund faith-based initiatives. This is a position weve advocated for years.  The Supreme Court should leave the faith-based initiative alone and focus instead on removing the special privileges that are afforded to atheists and others who are antagonistic to religion.  These church-state separationists have been given a free pass in federal court to bring Establishment Clause lawsuits simply because something is taking place that they dont like.  They have not had to show that a law or government activity actually injured them in any way before they could challenge it in federal court.  All they had to do was show that they were taxpayers somewhere. That is not only unfair, but wrong.  In no other area of the law are plaintiffs given a free pass to federal court simply because they are taxpayers.  This Religion Clause exception to the traditional rules of legal standing should be put to an end.  I am hopeful that the Supreme Court will put an end to this special treatment given to groups like the Freedom From Religion Foundation.

In the Freedom From Religion Foundation case, the separationist taxpayers challenged the federal faith-based initiatives program involving conferences that took place throughout the United States.  The federal district court in Wisconsin dismissed the case, ruling that the Freedom From Religion Foundation had no standing capacity to sue because there was no federal grant at issue.  Unfortunately, a federal appeals court reinstated the lawsuit ruling that the separationists had standing to challenge the use of federal funds to run the challenged program. The federal government appealed to the Supreme Court.

In our friend-of-the-court brief in support of the federal government, we pointed out that no federal taxpayer suits are allowed in any other context aside from Establishment Clause suits challenging federal spending.  That exception rests on the 1968 decision in Flast v. Cohen.  Subsequent to Flast, however, the Supreme Court has refused to expand Flast and has rejected every argument that the Court has made in the Flast decision.

All that was at issue here was federal funding going to conferences that encourage faith-based organizations to participate in meeting community needs.  This should not constitute a constitutional crisis.  Nor should this case be used as a test case on how taxpayer funds are spent.  Instead, the high court needs to bring an end to the special treatment given to atheists and other separationists in these lawsuits.  The Flast precedent has created an uneven playing field because it empowered every disgruntled atheist to make a federal case out of any hint of religion in government action.  This is simply wrong.

It appeared that Justice Kennedy understood the significance of the impact of this case. He noted that the Supreme Court of the United States starts each session with the phrase, God Save The United States and This Honorable Court.  The statement is made by a Court Marshall, who is a federal employee.  Justice Kennedy duly noted that if the proportion of the salary of this federal employee could be determined so that an allocation could be made which shows that federal tax dollars are being used to promote the phrase, God Save The United States and This Honorable Court, then, under the Plaintiffs theory, anybody in the United States could bring a lawsuit challenging this time-honored practice.  Justice Kennedy is right.  These standing rules have created a field day for separationists who want to remove all vestiges of religion from Americas public life.  The Court has an opportunity to end this abuse of the federal court system.  I am hopeful that the Court will hold that there is no standing present, and that God will continue to save the United States and the Honorable Court so that it can address real issues of constitutional significance.