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Oyez, Oyez…


The Supreme Court of the United States heard arguments today regarding an issue of standing — whether or not the plaintiffs in the case could actually bring it before the federal bench.  These sorts of arguments occur with frequency as an effort to cut a case off at the knees before it can even get started.  But it was the subject matter of this particular argument today that made it more than the usual procedural wrangle.  This case involves an issue of separation of church and state, and whether or not American taxpayers have standing to challenge the Bush Administration's growing list of faith-based initiatives expenditures.

All of this goes back to a 1968 case, Flast v. Cohen, and a long-held Warren Court precedent regarding the standing for citizens — any citizens — to challenge these types of issues, a decision that the Bush Administration has concluded needs to be weakened, if not discarded outright.

From the NYTimes:

The real question by the end of the argument was whether a majority would be content simply to scale back a Warren court precedent that allows taxpayers to challenge the use of public money for religious purposes or whether the court would disavow the precedent altogether and keep such suits out of federal court.

Solicitor General Paul D. Clement revealed his hand slowly, bringing his argument to a pinpoint landing at the precise close of a three-minute rebuttal. If the justices could not see their way to applying the precedent narrowly, Mr. Clement said, the court should simply overrule it. “If something has to go in this area,” he said, “I think it’s an easy choice.”

Under either option the administration advocated, the court would reject a suit that the federal appeals court in Chicago reinstated last year, a challenge to conferences that Bush administration officials have held to advise religious groups on how to apply for federal grants as part of the effort to bolster the role of such groups in social service programs.

The plaintiff is the Freedom From Religion Foundation Inc. of Madison, Wis., which advocates strict separation of church and state. In a complaint filed initially in 2004, the organization argued that officials who convened and addressed the conferences used congressionally appropriated money in a way that “violated the fundamental principle of the separation of church and state.”

Under the ordinary doctrine of “standing,” which defines who may bring a suit, people who object to a government policy but who cannot claim a concrete injury from that policy have no right to sue. But in a 1968 decision, the court carved out an exception for religion cases. The case, Flast v. Cohen, gave taxpayers standing to challenge federal laws that authorized expenditures for purposes alleged to violate the First Amendment prohibition against the “establishment” of religion.

The administration position in the case argued on Wednesday, Hein v. Freedom From Religion Foundation Inc., No. 06-157, is that the Flast decision should be understood to include two limitations. First, Mr. Clement said, taxpayers should be limited to challenging Congressional statutes, not executive branch programs like that in this suit. Second, the solicitor general argued, taxpayers should be able to challenge only spending outside the government, not internal spending like that cited by the Freedom From Religion Foundation.

The WaPo and the AP have more on the arguments. This is going to be an interesting decision to watch for when the opinions are released this term, as it pits the religious conservative and libertarian conservative principles in direct opposition to one another, and puts the justices on the spot with regard to prior court precedents versus political expediency arguments. (A big open question on the way to arguments, again, that may or may not result in the chipping away of Roe v. Wade, among may other precedential decisions.)  I'll be keeping an eye on this one, and wanted to give everyone a heads up about it as well.

One final note:  if you haven't seen before, I wanted to bring it to everyone's attention.  They have a number of the arguments before the Supreme Court in listening format.  You can find a particular case of interest and, if they have the arguments in their database, you can listen to them — the back and forth between the attorneys and the justices as it moves forward.  It is fascinating stuff, and a wonderful glimpse behind the rarified curtain of the Court.  If you have never participated in an appellate argument, or have not been privy to watching one (and you can often do so as a member of the public, just FYI), this is a treat.  (Maybe it's my law nerdiness showing, but I truly find this sort of thing fascinating.)

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com