President Bush's faith-based initiative is a signature program of
his administration. But not all Americans share the president's
belief that the government should work in close partnership with
religious organizations willing to perform nonreligious public
services, like running homeless shelters or drug counseling
Wednesday, the US Supreme Court takes up a case that examines to
what extent those opponents have legal standing to file federal
lawsuits alleging that the White House's faith-based initiative
amounts to unconstitutional entanglement of church and state.
The case stems from a 2002 lawsuit filed by a Wisconsin-based
group called the Freedom From Religion Foundation. Members of the
group filed the suit as taxpayers who objected to having their tax
money used to support religion.
Although the case revolves around the esoteric issue of taxpayer
standing to sue, analysts say the case could foreshadow a shift in
the Supreme Court's church-state jurisprudence. It marks the first
opportunity for the high court to rule in a major religion case
since the retirement of key swing voter Sandra Day O'Connor and the
addition of Chief Justice John Roberts and Associate Justice Samuel
"To evaluate the importance of the case you have to look at ...
what might come out of it," says Ira Lupu, a professor at George
Washington University Law School and church-state scholar.
In opposing the suit in 2002, government lawyers said the Freedom
From Religion Foundation had no authority to wage such a legal
battle since none of the plaintiffs were able to show that they had
suffered a direct and personal injury. It wasn't enough to object as
Sharp divide over wall of separation
Friend-of-the-court briefs filed in the case highlight starkly
different visions of religious liberty in America. On one side are
those who favor less or no contact between government and religion.
On the other side are those who believe that separation between
church and state has gone too far, triggering government hostility
toward religion and the religious.
In most instances taxpayers lack legal standing to sue the
government merely because they object to how the government is
spending tax dollars. Instead, the courts require that someone
suffer a direct and personal injury that entitles them to sue. This
requirement of legal standing helps prevent the courts from becoming
a quasi-legislature where policy arguments are debated rather than a
forum to decide specific legal disputes.
The same principle applies in most constitutional cases. If the
government violates a constitutional right, like the Eighth
Amendment's prohibition on cruel and unusual punishment, the injured
individual can sue in court to hold the government accountable for
But what happens when the alleged constitutional violation
involves the First Amendment's establishment clause that prohibits
the government from promoting religion?
"The establishment clause is different. It is designed to limit
the government from doing things which tend to favor or help people
without necessarily hurting anybody in any obvious material way,"
Professor Lupu says. …