Yesterday, the Supreme Court heard oral arguments in the Hein v. Freedom from Religion Foundation case.
The issue in the case is whether taxpayers, merely by being taxpayers, have standing to sue the government when a government expenditure violates the First Amendment's freedom of religion clause. The issue is a sticky one; only in religion cases can taxpayers sue on the basis of being taxpayers. In all other cases, a plaintiff must show more direct harm from government action in order to sue.
The arguments got twisted and heated, as this law.com article shows.
Supreme Court Justice Stephen Breyer looked skyward Wednesday as he tried to come up with a "more amazing" hypothetical during arguments in a key church-state case. With or without divine intervention, he found one: Could the federal government fund churches and ministers of a single religion nationwide "dedicated to the proposition that this particular sect is the true sect," without fear of taxpayer lawsuits against it?
"Horrible hypothetical," growled Solicitor General Paul Clement, but he went on to say yes. "The bottom line is that there would not be taxpayer standing." With a helpful suggestion from Chief Justice John Roberts Jr., Clement qualified his point by asserting that adherents of other religions could file suit against such a program on the basis that they were being discriminated against. But Clement held firm on the point that taxpayers, merely as taxpayers, could not challenge a network of government-funded churches.
Thirty-nine years ago, Flast v. Cohen carved out a religious exception to the rule about taxpayer standing. There have been many challenges to that exception ever since.
There seemed to be some confusion as to what would qualify as a violation and what should not.
Washington, D.C., lawyer Andrew Pincus, representing the foundation, said Clement had drawn "arbitrary lines" that did not conform to Court precedent or to the First Amendment's history. Pincus is a partner at Mayer, Brown, Rowe & Maw.
Roberts, nodding toward the Court's marshal, Pamela Talkin, asked whether, under the foundation's theory, a taxpayer could sue her for saying "God save this honorable Court" at the start of Court sessions.
Scalia offered another hypothetical, asking whether taxpayers could sue when Air Force One and Secret Service agents are used in the course of a presidential trip to a religious event.
Pincus said taxpayer standing would not extend to religious activities that are "incidental" to government expenditures, and he served up his own hypothetical: government funds "paying for bagels at a prayer breakfast" would not, he suggested, trigger a valid lawsuit. Scalia later skewered that hypothetical, arguing that if the bagels went only to prayer breakfasts for evangelical groups, someone who is Jewish might feel that is not incidental or trivial at all: "You know, what could be worse than not buying bagels for a Jewish prayer breakfast?"
I'm sure Scalia's joke will be the important part of the argument on the lefty blogs today.
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