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WASHINGTON-The newly constituted Roberts Court gets its first opportunity to wade into the politically sensitive area of church-state separation in a case involving President Bush’s controversial Faith-Based and Community Initiative. The arguments that U.S. Supreme Court justices will hear on Feb. 28 will not focus on the merits of the broad constitutional attack leveled in 2004 against the White House program, an initiative designed to increase religious groups’ involvement in providing social services. Instead, the arguments will target the key to the courthouse door-standing to sue-or, in this case, the ability of taxpayers to challenge the Executive Branch’s expenditure of money in ways that allegedly violate the First Amendment’s establishment clause. Hein v. Freedom from Religion Foundation, No. 06-157. But to the numerous interest groups that have lined up on the side of the Bush administration or its opponent, the Freedom from Religion Foundation, this case is more than an examination of the technical requirements for standing to sue. The Hein case has “far broader implications” and “epitomizes the culture clash” between those who want to eliminate the separation of church and state and those who seek to maintain it, said Judith E. Schaeffer, associate legal director of People for the American Way Foundation, an amicus party opposing the government. Groups such as Pat Robertson’s American Center for Law & Justice are “trying to close the courthouse door to taxpayers when government forces them to subsidize religion,” she said. “They see this case as a vehicle for an end to separation of church and state.” But this “sky is falling” claim is “nothing more than a red herring,” countered Benjamin W. Bull, executive vice president and chief counsel to Alliance Defense Fund, which filed an amicus brief supporting the government. “Neither my client nor the government is arguing to do away with lawsuits to enforce the establishment clause,” said Bull. The high court, he said, needs to return to traditional notions of standing by reversing a 38-year-old precedent which created special standing for taxpayers to challenge federal expenditures that may violate the establishment clause: Flast v. Cohen, 392 U.S. 83 (1968). “ Flast is the battleground here, not Hein,” said Bull. “This case is about whether Flast will survive. Down with Flast!” The Supreme Court announced a general rule against taxpayer standing to challenge federal expenditures in 1923 in Frothingham v. Mellon, 262 U.S. 447. But the Warren Court created an exception to the general rule with Flast, a challenge to congressional appropriation of funds for the purchase of textbooks for parochial schools. The court based the exception on the history of the establishment clause and the founders’ desire to protect taxpayers from being compelled to support any religious faith. Flast requires the taxpayer to show “a logical nexus between the status asserted and the claim sought to be adjudicated.” And the claim must be made against exercises of congressional power under the taxing and spending clause of Article I of the Constitution. There have been two key rulings applying Flast in the ensuing years. In Valley Forge Christian College v. Americans United for Separation of Church and State, the court denied taxpayer standing in a challenge to the executive branch’s transfer of government-owned land to a religious college because the executive’s authority arose under Article IV, not Article I. In Bowen v. Kendrick, the court approved taxpayer standing to challenge executive branch decisions about spending federal appropriations for programs under the Adolescent Family Life Act. Closer to which case? Religion clause scholar Ira Lupu of George Washington University National Law Center said the question in Hein is whether the taxpayer plaintiffs are more like those in Flast and Bowen or closer to those in the Valley Forge case. In its original complaint, the Freedom from Religion Foundation charged that the White House and other departments had spent appropriated funds to hold a series of conferences that-although assertedly neutral between religious and nonreligious organizations-in fact were designed to give a preference to religious organizations with respect to awards of federal grants. The district court found no standing to sue, but the 7th U.S. Circuit Court of Appeals reversed in an opinion by Judge Richard Posner. In the high court, Solicitor General Paul Clement contends that the court’s precedents “have consistently cabined taxpayer standing, permitting only Establishment Clause challenges to Congress’s exercise of its legislative taxing and spending power through direct appropriations to fund the activities of churches and other sectarian institutions.” The taxpayers in this case, he argues in his brief, do not complain that Congress exceeded its tax and spend authority, and so do not allege any direct dollars-and-cents injury that could support taxpayer standing under Flast. The challenge here is to an executive branch expenditure of generally appropriated funds that did not go outside of the government to assist any religious group, he said. Finding taxpayer standing here, the government says, “would transform the doctrine of taxpayer standing into a roving license for any one of the more than 180 million taxpayers in the United States to challenge any action of the Executive Branch that offends that individual’s own view of the Establishment Clause’s proscription.” But his opponent, high court veteran Andrew Pincus of the Washington office of Chicago-based Mayer, Brown Rowe & Maw, counters that this case falls ,squarely within Flast and Bowen, and the government’s position is “sharply inconsistent” with the history on which Flast relied. “The framers were well aware of the potential for abuse of executive power in the area of religion, which included coerced payment of funds that were used by the monarch to aid religion,” said Pincus. “There simply is no basis for concluding that they were less concerned about exercises of executive discretion than about the actions of Congress.” The injury to taxpayers in both situations, he explained, is the very injury targeted by the establishment clause and Flast-expenditures for the support of religion by funds exacted from taxpayers. The government’s approach, added Pincus, would result in “an exclusion of staggering proportions, exempting a broad range of unconstitutional expenditures.” And, he said, “The whole idea there is some flood of litigation to be stopped or that upholding standing will lead to floodgates is just not there.” Richard Katskee, assistant legal director of Americans United for Separation of Church and State, agreed, noting that a survey of federal appellate courts by his group and a law firm found fewer than 24 cases in which appellate courts granted taxpayer standing to bring establishment clause claims in the last 38 years. George Washington’s Lupu said two potentially very large issues lurk in the wake of a decision in Hein. If the justices expand or contract federal taxpayer standing, it may have implications for suits by state and local taxpayers as well. If the decision limits taxpayer standing, it may affect the standing of those who challenge government-sponsored religious expression on the basis of exposure to that expression, for example, in religious display cases. If Flast is overturned, as sought by some groups, Lupu said, “I think it would be almost impossible” to challenge federal grants in support of religion.

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