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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. That exchange may prove crucial in determining the outcome of the case before the Court, Hein v. Freedom From Religion Foundation. The Wisconsin-based foundation filed a taxpayer lawsuit against the Bush administration’s funding of faith-based initiatives, claiming that conferences sponsored under the funding program favor religious groups. The government defended the program, claiming the plaintiffs did not have standing, but the U.S. Court of Appeals for the 7th Circuit said the foundation could continue with its suit. The case is an important test not only for the faith-based initiative but also for a 39-year-old precedent that has treated First Amendment establishment-clause cases differently when it comes to standing. In other contexts, taxpayers can’t challenge government programs in court solely on the grounds that their tax dollars are being misused. To prevent trivial lawsuits, the high court has required plaintiffs to show a more direct injury or a bigger stake, such as a violation of rights or a denial of benefits. But in the 1968 case of Flast v. Cohen, the Court made an exception. It ruled that taxpayer status alone was enough to achieve standing when the claim is that a congressional expenditure violates the First Amendment’s bar against establishment of religion. In making the exception, the Flast Court hearkened back to the Framers’ reason for creating the Establishment Clause in the first place: to prevent government from taxing and spending to favor one religion over another, even if only “three pence” of the taxpayer’s money is used for that purpose, in the words of James Madison. Madison’s formulation was invoked often on Wednesday � Justice David Souter quaintly pronounced it “thruppence” � as the justices struggled to figure out how and whether to honor that Madisonian goal. Clement argued that the Flast exception allows taxpayer standing only to those challenging congressional spending that benefits an outside party or church � not in cases like the faith-based initiatives, in which the executive branch, acting on its own, has done something that the taxpayer dislikes. Broadening the exception to cover executive-branch activities, Clement said, would threaten the separation of powers and invite lawsuits every time a government official makes a religious reference. Several justices seemed to think that was an artificial distinction and taxpayers might have standing whether a congressional or executive-branch activity is involved. Clement struggled to define the difference, and when Breyer pinned him down with his hypothetical, it appeared that Clement may have taken his point too far by suggesting that taxpayers could not challenge even such an overtly religious program. But both Roberts and Justice Samuel Alito Jr. threw Clement lifelines. At one point, as justices tried to follow Clement’s answers, Alito pointedly asked him, “Are you arguing that these lines that you are drawing make a lot of sense . . . or are you just arguing that this is the best that can be done . . . within the body of precedent that the Court has handed down in this area?” Clement replied, “The latter, Justice Alito. And I appreciate the question.” Amid laughter, Scalia said, “I’ve been trying to make sense out of what you’re saying.” Clement shot back, “And I’ve been trying to make sense out of this Court’s precedents.” At which point Justice John Paul Stevens chimed in, “Do we think we have a duty to follow precedents that don’t make any sense?” But as much as the justices seemed troubled with Clement’s position, they also seemed troubled about siding with the foundation. 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?”
Tony Mauro can be contacted at [email protected].

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