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.
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