Posted 3:32 PM by Robert

Is The Court Planning To Excise The Religion Exception?

The New York Times reports regarding a federal court challenge to some aspects of the President's faith-based initiatives:

Judge John C. Shabaz of Federal District Court dismissed the lawsuit for lack of standing, finding that the officials activities were not sufficiently tied to specific Congressional appropriations. Taxpayers objections to the use of general appropriations could not be a basis for standing, he said. The president's Faith-Based and Community Initiative was created through a series of executive orders and not by Congress, he noted.

The decision was overturned, and the lawsuit reinstated, in a 2-to-1 ruling by the United States Court of Appeals for the Seventh Circuit, in Chicago. Writing for the majority, Judge Richard A. Posner said the distinction cited by Judge Shabaz made no difference. Judge Posner said the plaintiffs were entitled to challenge the conferences as propaganda vehicles for religion even if they were neither financed through a specific Congressional appropriation nor made grants directly to religious groups.

As a general matter, people do not have standing, based solely on their status as taxpayers, to challenge the expenditure of federal money. The Supreme Court's precedents have carved out religion cases as an exception to this general rule.

In its appeal, Hein v. Freedom From Religion Foundation, No. 06-157, the administration is arguing the exception is a narrow one, designed to prevent the specific historic evil of direct legislative subsidization of religious entities, a definition that the administration says does not apply to the conferences. For the federal courts to permit such a lawsuit, its brief asserts, would upset the delicate balance of power between the judicial and executive branches and open the courthouse door to anyone with a generalized grievance.

The Administration's position may be insufficiently ambitious. The exception that the Court has carved out for religion cases to the general rule that plaintiffs do not have "standing" based solely on their status as taxpayers to challenge the expenditure of federal money is all but indefensible. There is no good reason to treat religion as a special case. Indeed, the Court's exception runs quite contrary in spirit to the growing body of Court precedent affirming that generally applicable rules may not carve out religious exceptions. Moreover, there are many signs that at least the conservatives on the Court view the Court's "standing" rules as needing tightening. That was, for example, much in evidence during the Court's recent hearing regarding "global warming." Federal court "standing" requirements are essential to upholding the Constitution's requirement that federal court jurisdiction be limited to "cases and controversies." There is no good reason to suspend or weaken that requirement just because religion is involved. And there are plenty of indications that the Court is fed up with the annual deluge of religion cases brought on what often seem like general policy grounds by plaintiffs with no real connection to the issues supposedly driving the action. (One can almost hear the annual wails from the great white palace on Capitol Hill: "What, yet another damn slew of annual creche cases!?")

Looking at the matter from another perspective, one might ask: Why has the Court accepted review of a Seventh Circuit case written by one of the most able judges in the country, Richard Posner, where there is no split in the Circuits, and Judge Posner's opinion itself is probably correct - and certainly not seriously wrong? It is highly unlikely that Judge Posner needs "correcting" - he knows how to construe existing Supreme Court precedent better than almost any other person in the world. Moreover, the "exception to the exception" his opinion overturned has little independent merit if one accepts the Court's existing precedent. So why did the Supreme Court agree to review Judge Posner's decision?

Well, if the Court wants to reverse its own precedent and abolish the exception that the Court has carved out for religion cases, one would expect the Court to accept an appeals court decision that gets the existing law (that is, existing the Supreme Court precedent) right - and then reverse. (UPDATE: In fact, that appears to be just what the Court is doing to reverse its own recent decision permitting the limited use of racial criteria in public education.) Is that what the Court is up to now?

We'll just have to wait and see.