Of all the crazy ironies in modern church-state jurisprudence, none is more vexing than the notion that some fundamentally religious ideas and symbols have been so completely drained—by time or overuse—of religious significance that they are now essentially secular. The word God on coins and the Christmas in trees are oft-touted examples. And at argument in this morning's case, Hein v. Freedom From Religion Foundation, we discover that the next casualty of lost religious symbolism is, well, the bagel.
In 2001 President Bush established the White House Office of Faith-Based and Community Initiatives, whose purpose was to "level the playing field" between religious and secular social-service providers. The government hosted a bunch of conferences that helped such religious groups compete for federal grant money. The Freedom From Religion Foundation likened those conferences to "revival meetings" and sued, claiming that the government was using taxpayer dollars to favor sectarian groups, in violation of the First Amendment's bar on state "establishment" of religion.
Now you may be thinking: "Hey, wait a second. If being a taxpayer means I get to sue the government for every lame thing it does, there are some highways/health clinics/wars I'd rather to go to court about." To which my answer would be the doctrinally important, if yawn-worthy, "You don't have standing as a taxpayer to sue the government over every little thing that aggrieves you." Nevertheless, a narrow exception has been carved out when the state pushes religion. That you can sue over, thanks to the 1968 Warren Court case Flast v. Cohen, which allowed taxpayers to sue the government for spending funds on religion. Whether the atheists can squeeze through this mouse hole and into court is the only question today. No one has yet determined whether Bush's faith-based program in fact violated the Establishment Clause.
The federal district court ruled against the atheists. The 7thCircuit Court of Appeals, in an opinion authored by the prodigious Judge Richard Posner, determined that the taxpayers had standing to sue. The alternative, Posner said, could allow crazy amounts of unchecked executive-branch spending on religion.
Solicitor General Paul Clement represents the Bush administration, and he has the misfortune of being at the court on one of Justice Antonin Scalia's all-time record-breaking "laugh-episode" days. Scalia appears to have forgotten that he is largely on Clement's side in this fight. Perhaps purely in the service of the laughter gods, he gives the SG a pretty hard time.
Clement opens by explaining that the Flast taxpayer exception is a narrow one that has only been narrowed further by the cases that followed. He claims that only if the government gives funds directly to outside religious groups could taxpayers sue.
Scalia asks why Congress can't pass a statute authorizing the construction of a church, if, as Clement insists, allowing the government to build a church itself would be OK? Justice David Souter agrees that the test should be a Madisonian one: Has the state itself spent "thruppence" on religion? He rolls the R's in thruppence, thus getting as close as a New Englander gets to gleeful.
Justice Stephen Breyer offers a hypothetical in which the Congress passes a statute authorizing the building of a massive church at Plymouth Rock. Does a California taxpayer have standing to sue, he asks? Clement says no; Breyer comes back with, "I'm just trying to think of something even more amazing than what I just thought of." What if, he asks, all over America, in every city, town, and hamlet, the government builds Pilgrim churches? Chief Justice John Roberts replies that any religious group that felt excluded from that program would still have standing to sue, but not "just because he was paying taxes."
Justice Samuel Alito has to jump in to save Clement when the Pilgrim hypo becomes too silly. He asks whether the line Clement is drawing "makes sense in an abstract sense or whether this is just the best that can be done with the body of precedent the court has handed down in this area?" When Clement grins, "The latter, Justice Alito," Scalia snaps back with, "Well why didn't you say so? And here I was trying to make sense of what you're saying!"
When most of the justices are treating the key precedent as a punch line, it's a good clue they are preparing to pull the plug. Breyer tries to defend the Flast exception with the rationale that people become "real upset when they see other religions receiving government money to build a church." Which prompts Scalia to recall that he's actually on Clement's side after all. He purrs, "So getting upset is now a constitutionally valid basis on which to bring lawsuits?" Breyer looks annoyed.
Andrew J. Pincus is representing the Wisconsin-based Freedom From Religion Foundation, and the laugh episodes only ramp up on his beat. Chief Justice Roberts opens with a query as to why taxpayers can't sue the court's marshal for standing up at each argument session and "saying 'God save the court.' " Alito asks Pincus to show him how striking down the administration's faith-based program would reduce anyone's tax rates. Then Scalia asks whether spending federal tax dollars on Air Force One violates the constitution if the president travels in it to attend a church service.
Justice Anthony Kennedy performs some feat of acrobatic reframing by claiming this is all a speech issue somehow. He does make it clear where he ultimately stands, however, when he suggests that it's "unduly intrusive" for the courts to "tell the president he can't talk to specific groups about better using their talents."
Pincus tries to lay out a clear test: Is the sum the government spends on religion identifiable and more than incidental? But Alito, Scalia, and Roberts just keep poking him with the crazy hypos. Which eventually leads Scalia (who is on some kind of comedic crack today) to wonder whether there would be standing for taxpayers to challenge a presidential directive that would only fund the bagels for evangelical prayer breakfasts. Cross talk. Laughter. Then Scalia, with only a hint of an accent, wonders if there is taxpayer standing because, after all, "What could be worse than not buying bagels for the Jewish prayer breakfast?"
Pincus sits down.
Now, I could watch Paul Clement do two-minute rebuttals until the cows come home. He's just that good. And this morning is no exception. By the time he sits down, he seems to have convinced a majority of the court that there's no harm in obliterating the taxpayer exception for religion cases because suits can still be filed on other grounds. And that if the court has to put a torch to Flast in order to preserve the constitutional well-being of the rest of the universe, well, hey. Some court watchers expect this to be a close case. It didn't look close today. But the enduring lesson of Hein may just be that the law is so confusing that it's unclear whether the constitutional violation is the hypothetical prayer breakfasts or just the hypothetical bagels.