A lower court had blocked a lawsuit challenging conferences the White House office holds for the purpose of teaching religious organizations how to apply and compete for federal grants. That constitutional challenge, by a group advocating the strict separation of church and state, was reinstated by an appeals court; the administration in turn appealed to the Supreme Court.
The case is one of three appeals the justices added to their calendar for argument in February. A question in one of the other cases is whether a public school principal in Juneau, Alaska, violated a student’s free-speech rights by suspending him from school for displaying, at a public off-campus event, a banner promoting drug use.
Together with a third new case, on whether federal land-management officials can be sued under the racketeering statute for actions they take against private landowners, the additions to the court’s docket raised the metabolism of what had begun to look like an unusually quiet term. It had been just short of a month since the justices accepted any new cases.
As in the case the justices heard on Wednesday on the administration’s refusal to regulate automobile emissions that contribute to climate change, the question in the White House case is the technical one of “standing to sue.” And as the argument on Wednesday demonstrated, standing is a crucially important aspect of litigation against the government.
In its lawsuit challenging the White House conferences, filed in Federal District Court in Madison, Wis., in 2004, an organization called the Freedom From Religion Foundation named as defendants more than a dozen administration officials who oversaw or participated in the conferences.
The lawsuit alleged that the officials were using tax dollars in ways that violated the separation of church and state required by the Establishment Clause of the First Amendment. For example, the complaint quoted Rod Paige, then the secretary of education, as telling the audience at a 2002 White House conference that “we are here because we have a president, who is true, is a true man of God” and who wanted to enable “good people” to “act on their spiritual imperative” by running social service programs with federal financial support.
Judge John C. Shabaz of Federal District Court dismissed the lawsuit for lack of standing, finding that the officials’ activities were not sufficiently tied to specific Congressional appropriations. Taxpayers’ objections to the use of general appropriations could not be a basis for standing, he said. The president’s Faith-Based and Community Initiative was created through a series of executive orders and not by Congress, he noted.
The decision was overturned, and the lawsuit reinstated, in a 2-to-1 ruling by the United States Court of Appeals for the Seventh Circuit, in Chicago. Writing for the majority, Judge Richard A. Posner said the distinction cited by Judge Shabaz made no difference. Judge Posner said the plaintiffs were entitled to challenge the conferences “as propaganda vehicles for religion,” even if they were neither financed through a specific Congressional appropriation nor made grants directly to religious groups.
As a general matter, people do not have standing, based solely on their status as taxpayers, to challenge the expenditure of federal money. The Supreme Court’s precedents have carved out religion cases as an exception to this general rule.
In its appeal, Hein v. Freedom From Religion Foundation, No. 06-157, the administration is arguing the exception is a narrow one, “designed to prevent the specific historic evil of direct legislative subsidization of religious entities,” a definition that the administration says does not apply to the conferences. For the federal courts to permit such a lawsuit, its brief asserts, would upset “the delicate balance of power between the judicial and executive branches” and open the courthouse door to anyone with a “generalized grievance.”
The student free-speech case the justices accepted, Morse v. Frederick, No. 06-278, is an appeal by a high school principal, Deborah Morse, who suspended a student, Joseph Frederick, after an incident during the Olympic Torch Relay that came through Juneau in 2002. Students were allowed to leave class to watch the parade. Mr. Frederick and some friends unfurled a 20-foot-long banner proclaiming “Bong hits 4 Jesus,” a reference to smoking marijuana.
When the student refused to take down the banner, claiming a First Amendment right to display it off school property, the principal confiscated it and eventually suspended him for 10 days. Mr. Frederick filed a lawsuit, which the Federal District Court in Juneau dismissed.
But the United States Court of Appeals for the Ninth Circuit held that the punishment violated the student’s First Amendment rights and, further, that the principal was liable for damages, in an amount to be determined by the district court. Ms. Morse’s Supreme Court appeal challenges both the appeals court’s interpretation of the First Amendment and its refusal to shield her from financial liability through a doctrine known as qualified immunity.
The third new case, Wilkie v. Robbins, No. 06-219, is a government appeal on behalf of employees of the Bureau of Land Management in a dispute with a Wyoming landowner who charged them with using tactics amounting to extortion to get him to grant public access to his property. The federal appeals court in Denver held that a racketeering suit based on the extortion charge could proceed.