Just Above Sunset
Volume 5, Number 10
March 11, 2007

The Law Laughs

 The world as seen from Just Above Sunset -

"Notes on how things seem from out here in Hollywood..."

Any Judge with a Sense of Humor Can Be Dangerous

Well, Hein v. Freedom From Religion Foundation finally made it to the Supreme Court. The link is to the docket item - 06-157.

Dahlia Lithwick provides a summary -

    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.

The Associated Press sees it a bit differently in High Court Mulls Faith-Based Initiatives -

    The Supreme Court wrestled Wednesday with the question of whether taxpayers have the right to challenge the White House's aggressive promotion of federal financial aid for religious charities.

    At issue is whether a Wisconsin-based group of atheists and agnostics have legal standing, by virtue of being taxpayers, to bring their complaint in the federal court system.

So we're dealing with two things.  The first is whether the plaintiffs have any standing at all to seek redress - to force an end to such things - or whether they should just go back to the land of cheese and forget about it.  The second is that, if they have standing, whether they have a case here regarding the administration misusing taxpayer funds on religious matters - de facto and de jure violation of that clause about the government not being constitutionally permitted to do anything that smacks of "establishing" religion, or more generally, stuff that moves us toward a state religion.  The founding fathers knew that always led to trouble.

It all got a little strange - Justice Stephen Breyer asked the lawyer for the White House whether a taxpayer would be able to challenge a law in which Congress sets up a church at Plymouth Rock. Solicitor General Paul D. Clement responded to that with "I would say no" - but then he said if folks were upset with that they had lots of alternatives. He scoffed at the idea that any taxpayer could essentially say funds were being misused.

Justice Antonin Scalia had his own hypothetical too - he asked one of the lawyers for the grumpy Wisconsin group, Andrew Pincus, whether Pincus was arguing taxpayers had the right to sue over the use of security money for a presidential trip where religion is just discussed.  Pincus said that taxpayers would not have standing to do so in that case - the money spent would be "incidental," and not central to the issue, so let's get serious here and all that.

The whole thing may well come down to a 1968 Supreme Court decision - an 8-1 decision by Chief Justice Earl Warren - that created an exception to the prohibition on taxpayer challenges to the government spending of tax revenue.  There the court allowed taxpayers to challenge congressional spending for private religious schools.  That Warren court was nothing but trouble in the eyes of many conservatives, of course.  And now it seems the Bush administration is saying that spending our tax money for speeches and meetings of executive branch officials really does not involve spending federal money outside the government - so taxpayers are not entitled to challenge it.  It's not like they're funding religious schools where they teach the infallibility of Dobson's view what the Bible says about the real truth about how very wrong all of science and history is, or anything like that. The Bush administration simply organizes conferences where faith-based organizations are allowed to explain what they've been up to - to see which are particularly worthy of receiving federal money.  After all, the federal government cannot do everything, and needs some help on the social-needs stuff from wherever they can get it - or something like that. The idea is, we are told, quite benign - to help religious and community groups compete for federal funding to fight poverty, substance abuse and other social problems.

But the Wisconsin folks are claiming that such White House's initiatives, singling out of faith-based organizations, necessarily exclude other organizations - and kind of looks like using our tax money to support the "right" religions - or, as some of us see it, a way of shoveling big blocks of money at the religious right, the most powerful part of "the base" for the Republicans.  It just keeps a key group fat and happy.

After all, instead of going through Congress, where people do ask questions, President Bush issued executive orders to create the White House office of "faith-based initiatives" and subsidiary offices in ten federal agencies. And that was during his first term - when Congress was always on his side. The administration must have known the whole effort was a bit dicey.

Dahlia Lithwick, being both a lively writer and a lawyer, and having sat through the whole of the "if it's Wednesday it must be the grumpy Wisconsin troublemakers" session at the Supreme Court, offers a great deal of detail about what happened in chambers - and it is amusing.

She links to the transcript of the argument in that morning's case - but that is an awfully dry read.  The give and take was more than that what appears in the transcript.

And she sets the stage with the comment that "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.

Yes, the word "God" on coins and the Christmas trees in government buildings are really not much of an issue now.  No one much cares.  That's hardly religion anymore - it's just general noise. A national shrug is probably appropriate regarding such things.

And now these Wisconsin people are arguing over a few meetings about divvying up scarce federal dollars when things need to be done to make things better in this sorry world? They are actually arguing about the misuse of some federal funds.

As she puts it -

    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 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.

Ah, the only issue is whether the plaintiffs have standing.  If they do, then we can move on to the other business.

But the route to the Supreme Court is, as always, circuitous - using the term literally and figuratively.  And no case gets up there unless there are good arguments on both sides.  It seems a federal district court ruled against these Wisconsin atheists. Then the 7th Circuit Court of Appeals determined that the taxpayers actually had standing to sue - in an opinion written by Judge Richard Posner (a man mentioned often in these pages)  The alternative, as Posner said, could allow "crazy amounts of unchecked executive-branch spending on religion" (Lithwick's summary of Posner).

So it comes up to the Supreme Court - and it was wild. Here's a bit of Lithwick on the scene -

    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.

So that's what goes on in there!

  • "I'm just trying to think of something even more amazing than what I just thought of."
  • "And here I was trying to make sense of what you're saying!"

Pincus, the fellow representing the Freedom From Religion Foundation, fares no better than the administration's Solicitor General -

    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 is having none of it. Is the sum the government spends on religion identifiable in this case - and thus more than incidental? That's the question as he sees it. The answer is kind of obvious that it is.

All he gets from the bench is hypothetical comedy. Scalia wonders whether there would be standing for taxpayers to challenge a presidential directive that would only fund the bagels for evangelical prayer breakfasts.

Lithwick notes that got a big laugh, and that set Scalia on his roll, as they say down the street at the Laugh Factory -

    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?"


But the nub here is that it seems clear that Solicitor General is the winner here, for the administration -

    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.

She comments that "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."

Actually the enduring lesson here may be that the end of what we thought the constitution meant - at least the part of saying the business of government was the nuts and bolts of the everyday, and thus essentially secular and quite different from the concerns of religion - not better than religion and not worse, just a different matter - isn't any longer what the constitution means.  These "activist judges" - what they really are - want some changes made.

Carl Sandburg said the fog in Chicago crept in "on little cats' feet." Here we can see theocracy creeping in with playful laughter about how none of this is a serious matter - a good time was had by all.

Comedy can be dangerous in many ways. 

Robert Frost - "Humor is the most engaging cowardice."

This item posted in final version - March 4, 2007

[The Law Laughs]

Last updated Saturday, March 10, 2007, 10:30 pm Pacific Time

All text and photos, unless otherwise noted, Copyright © 2003, 2004, 2005, 2006, 2007 - Alan M. Pavlik