December 2, 2006

"Suppose the Secretary of Homeland Security, who has unearmarked funds in his budget, decided to build a mosque..."

Enough about "Bong Hits 4 Jesus," let's pay attention to another of the cases the Court decided to hear -- same link as the previous post -- Hein v. Freedom From Religion Foundation. This case raises the question of who may sue to enforce the Establishment Clause. The plaintiff (which filed the case in Madison, Wisconsin) relied on the status of its members as taxpayers to challenge the practice of holding conferences the White House to assist religious groups in applying for federal grants -- part of President Bush's Faith-Based and Community Initiative. Judge Shabaz dismissed the case on the ground that Congress hadn't earmarked the money to go to religion and therefore that the plaintiffs could not use the special doctrine -- articulated in Flast v. Cohen, 392 U.S. 83, (1968) -- that allows taxpayers to enforce the Establishment Clause. The Seventh Circuit reversed, with Judge Posner writing the opinion.

Here's Posner's opinion. (I'm linking to the opinion at "Project Posner," a website devoted to Posner's judicial opinions.)
The Court decided in Flast that they should not stand in the way of challenges to "exercises of congressional power under the taxing and spending clauses of Art. I, § 8, of the Constitution," provided that the expenditure complained of is not just "an incidental expenditure of tax funds in the administration of an essentially regulatory statute" and that "the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8." 392 U.S. at 102-03. The Court found that this two-part test was satisfied by a challenge to the use of "the taxing and spending power . . . to favor one religion over another or to support religion in general." Id. at 103....

At argument the plaintiffs' counsel was unable to identify the appropriations that fund the conferences. The complaint does, however, allege that the conferences are funded by money derived from appropriations, which means from exercises of Congress's spending power rather than from, say, voluntary donations by private citizens. There is no suggestion that these are appropriations earmarked for these conferences, or for any other activities of the various Faith-Based and Community Initiatives programs, or for a statute pursuant to which the programs were created. The money must come from appropriations for the general administrative expenses, over which the President and other executive branch officials have a degree of discretionary power, of the departments that sponsor the conferences. Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, 118 Stat. 2809, 2853, 3115-16, 3136, 3150, 3311-12; Department of Homeland Security Appropriations Act, 2005, Pub. L. No. 108-334, 118 Stat. 1298-99.

The difference, then, between this case on the one hand and Flast and Kendrick on the other is that the expenditures in those cases were pursuant to specific congressional grant programs, while in this case there is no statutory program, just the general "program" of appropriating some money to executive-branch departments without strings attached. The difference cannot be controlling. Suppose the Secretary of Homeland Security, who has unearmarked funds in his budget, decided to build a mosque and pay an Imam a salary to preach in it because the Secretary believed that federal financial assistance to Islam would reduce the likelihood of Islamist terrorism in the United States. No doubt so elaborate, so public, a subvention of religion would give rise to standing to sue on other grounds, just as in the St. Charles cross case; taxpayer standing in the hypothetical mosque case would not be essential to enabling a suit to be brought in federal court to challenge the violation of the establishment clause. But it would be too much of a paradox to recognize taxpayer standing only in cases in which the violation of the establishment clause was so slight or furtive that no other basis of standing could be found, and to deny it in the more serious cases.
Citing precedent, Posner identified the standing problem here as involving only the "prudential" limitations on federal court jurisdiction -- as opposed to the Article III constitutional limitations. Since "the prudential principles of standing, like other common law principles, are protean and mutable," Posner thereby freed himself to speak in practical terms and to avoid the Article III doctrine -- which has tightened up in the years since Flast and which has long made Flast seem like an anomalous safe harbor for Establishment Clause litigants.

Since the constitutionalized standing doctrine of the Burger and Rehnquist Courts presents a problem for those who want to argue that Flast was correctly decided, I should think it would be quite hard to argue nowadays that Flast ought to be broadened. Yet Flast is stare decisis, and Posner's practical reasoning is impressive. What if the Secretary of Homeland Security used general funds to build a mosque and pay an Imam?

26 comments:

Gerry said...

"What if the Secretary of Homeland Security used general funds to build a mosque and pay an Imam?"

Sounds like it would be a great reason to not vote for that President, or his party, ever again, nor for any of the idiot Senators who voted to confirm. Do the people already have the means to rectify abuses such as the one you posit? If so, then there is no need for the courts to act, especially if doing so basically removes the people's right to act according to their judgment and sensibilities.

Ann Althouse said...

You don't accept that there is such a thing as constitutional law? It's all democracy to you. When will you cry foul?

Roger Sweeny said...

Since "the prudential principles of standing, like other common law principles, are protean and mutable," Posner thereby freed himself to speak in practical terms and to avoid the Article III doctrine --

Ann, you are an artist with words.

BTW: The link above ("So your 5-year-old boy wants to dress like a girl.... How far should you go in supporting him?") actually goes to this case.

The Drill SGT said...

My simplistic view is that the founder's meant the Establishment Clause (like the No Religious Test text) to prevent the government from favoring ONE religion above others, rather than being an anti-religious statement in general.

There are lots of places where the Feds support or fund religion in general, the most obvious being military chapels and Chaplains. As long as their isn't a clear bias in that process, I don't see a problem.

Muslims would certainly be able to attend any meeting about how to apply for Federal grants for example.

Gerry said...

Ann,

"You don't accept that there is such a thing as constitutional law? It's all democracy to you. When will you cry foul?"

I assume the first question there was rhetorical, since you pretty much assumed my answer on the statement after it. But I do have an answer to it--

I do accept that there is such a thing as constitutional law. And it is not all about democracy for me; I have a firm belief that the fleeting passions of 'the mob' need checks and balances.

But as you wrote, "Posner identified the standing problem here as involving only the "prudential" limitations on federal court jurisdiction."

To me, the fact is that the consequence in the hypothetical would be that a building got built and a guy got paid. I think that it is prudent to believe that the world will not end if the courts do not intervene. I believe that the Executive branch (by firing the guy) and the Congress (by denying funding) could (and would) intervene, and I believe the people would correct things at the ballot box in a few years if they did not.

Leave Constitutional law for 'really big things.' In the grand scheme of things, to me neither the hypothetical, nor the bong hits 4 Jesus one, really strike me as being Constitutionally important. It strikes me as though we keep trying to draw bright line borders between what is allowed in society by people and by government, and in so doing we have drawn a complicated and conflicting border that zigs and zags so much that it is impossible to clearly see the boundaries from any distance. A straighter, less intricate border that is more fuzzy would probably do the job better.

I propose a different set of questions and statements. Do you accept any limitations on the jurisdiction of the Courts? It is all a matter of judicial decisions and principles with you (note, I do not actually believe this, but am reflecting your approach to me back). When will you cry foul?

I would prefer if our courts stopped trying to micromanage public life and the Government. Decide the big, important things. Take on no-knock raids, eminent domain, life-and-death questions from the death penalty to abortion, decide the limits to the 2nd amendment, and so on. Things that really impact lives. Rather than having the courts be the institution forcing cultural change.

All IMO.

Palladian said...

I'm currently a juror on a criminal case being tried in a 1930-era court building in New York. High above the judge's bench, bolted to the wall, is a plaque with the phrase "In God We Trust" in gilt letters. It doesn't seem to bother anyone; none of my fellow jurors mentioned it, though they did mention that there is graffiti on the back of the judge's chair that says "SUPER CHICKEN". Much time was devoted to conjecture about how someone could possibly be able to vandalize the back of the judge's chair.

Anyway, I'm surprised that the "In God We Trust" sign is still up, especially in a New York court room, though I suspect that ACLU types don't ever make it into low-level criminal court rooms in the outer boroughs.

Ann Althouse said...

Gerry: Take into account the words of James Madison in what was a key document reflecting the intent of the Establishment Clause:

"[I]t is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of [the] noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much, soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?"

Drill Sgt: There is a distinction between the question whether citizens can sue and whether the program violates the law. Do you want it to be that they can't sue (and possibly learn that there is no violation)? Or do you accept their suing but think the government should win? The SCt is only considering whether they have stancing to sue.

Gerry said...

"Take into account the words of James Madison in what was a key document reflecting the intent of the Establishment Clause:"

Wait a sec, I thought that Posner had sidestepped this by merely entertaining the ""prudential" limitations on federal court jurisdiction." To that I responded, choose the path of least court involvement.

But on to the quotation:

"The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much, soon to forget it..."

How about turning this around? Recently, the courts have usurped power from communities, and entangled us in precedents. Now we have it that schools cannot have Christmas shows?

I know one can say that the only reason schools had them in the first place is that they ignored that point, but to me we are back to getting at the type of esoteric minutiae that makes for interesting debates in the classroom, but in reality are stupid things for the federal courts to be involving themselves in, and are stupid things for the federal government to be involving themselves in.

I guess I am saying that I think it is bad for the Constitution to be saying that it answers questions like if a school can suspend a student for unfurling a "Bong Hits 4 Jesus" banner when the school was allowed to take off and be an audience for an Olympic Torch relay. I think it is bad for the Constitution to be trying to decide to what extent religious groups, expressions, and people must be excised from government programs, government schools, and so forth. And I think it is bad for courts to say they are the sole arbiters, more than the legislature and the executive.

I think the whole system works better when the system limits itself to the really big things. If a case needs to have someone making a hypothetical to explain how the principle involved might be important, and the hypothetical still does not show any dire consequences (as this one does not), then the answer should be that the federal courts should not be involved.

Again, IMO.

Richard Dolan said...

It's interesting that the SCOTUS has heard argument on two major standing cases within the last week. For a Court that wants to cut back on the judiciary's intrusion into the prerogatives of the other two branches, it makes sense to grant cert to refine the limitations on standing, just as the Court did a term or two ago in getting rid of the Pledge of Allegiance case.

As Ann says, Flast is clearly a hold-over from an earlier era, before the Court and the country learned that judicially imposed solutions to social problems aren't necessarily all they're cracked up to be, and often result in a lot of new problems for the Court to boot. Whethre that's the underlying reason, it's clear that the case law on standing has moved far away from the idea of general taxpayer standing. Presumably, the Court granted cert to decide whether, or to what extent, Flast survives its the more recent and restrictive rulings cutting back on standing. Same with Mass v. EPA, the global warming case of last week, where the Court spent a lot of time at oral argument going over the idea of how likely and imminent must the plaintiff's harm be before the plaintiff can claim standing to sue. In the oral argument in the global warming case, one of the justices noted that the SCRAP case, decided in the same era and based on the same expansive notion of the judicial role as Flast, marked the outer limits of how far the Court had pushed the standing doctrine, before it started to rein it all in.

From the oral argument in Mass v. EPA, it seems quite likely that these standing issues will be decided by a 5-4 vote, with Kennedy in the middle. If so, I'd guess that standing will be found lacking in Mass v. EPA, and that Flast will be cut back enough to get rid of this case but not enough to rule out all taxpayer suits alleging Establishment Clause violations. We should know by June.

The Drill SGT said...

Drill Sgt: There is a distinction between the question whether citizens can sue and whether the program violates the law. Do you want it to be that they can't sue (and possibly learn that there is no violation)?

On your specific question, I think they should be allowed to sue, but hope that the program does NOT violate the constitution.

On the general question, I wish that people would sue less and that the threshold for allowing suits was higher (e.g. loser pays costs, etc) We are too litigious.

Cedarford said...

Any doubt I had about the ability of Faith-based groups to do a better job than most government groups (except the Coast Guard and military) disappeared with Katrina.

It is in our national interest to ensure that those robust, caring organizations are facilitated, not impeded by the state or by judicial activists that fancy a Huge Wall is needed to thwart those nefarious "faith-based" people.

The requests of the faith based groups that their work would go even better if they had the help of a government coordinating activity and use of certain Gov't resources in certain circumstances are reasonable and compelling.

If the Houston Baptist Association had been given the 10,000 FEMA houses on loan to set up and move Katrina refugees into - those houses would not be rotting in a large Arkansas field.

And in non-emergency, non-disaster situations, I have no problem with faith-based groups getting a little support from a government set up by the people in order to help the people. I think an Hispanic pentacostalist minister working with 40 drug abusers getting room in some gov't facility and some refreshments on the government tab but working himself for free is a good deal. It beats paying some secular progressive social worker sucking up an 70,000 additional in taxpayer funds getting the same gov't space and the same refreshment fund in order to maintain some silly "Wall" only a small number of anti-religious activists seek to impose on social services.

Gerry said...

Additional thought on what I said above-- if things worked the way I have suggested that they should, then we would not have situations where it is decided that a student could unfurl a "Bong Hits 4 Jesus" banner at an activity authorized by a school and have it be Constitutionally protected (if that case is decided in that direction), but would have a valedictorian's speech including a prayer be Constitutionally prohibited.

In my way of thinking, neither would be a matter for the federal courts, and localities could tailor their approaches to the sensibilities of their people. People could choose to live where things are handled the way they like. It minimizes litigation, and minimizes people being forced to live where things are run contrary to their sensibilities. More people would be happy with the way things would be. And people, both conservative and liberal, would be unable to use the power of the federal courts to force their preferences on others.

M. Simon said...

"In God We Trust" passes Constitutional muster because the Supremes have declared the phrase to have no meaning.

I'm sure "Honest Government" and Municipal Trust" can be found in the same bin.

Once upon a time money said "Mind Your Business". Something requiring neither God nor Trust. And more sensible Allah willing.

M. Simon said...

I believe schools can have Christmas shows as long as Adam Sandler's Chanukah Song is a requirement.

Man he is going to get rich off that one.

wavelength said...

IMO - the question is a distraction because the "Faith Based Initiatives" were social programs being run by religious outfits, not religious programs being funded for strengthening said religion.

If the funds are only being used for social an not for building churches or winning converts to said religion, then the whole point is moot.

Semantical, yes, but so was your question.

Anonymous said...

To follow up on the comments of some other posters I wonder to what extent a judiciary that is much more active in defining and enforcing the boundaries of Constitutional behavior has led to the other branches being much less concerned about policing the Constitutionality of their own and the other branch of government's behavior -as well as the voter's doing the same. It seems to me that everyone is too willing to leave it to courts to decide these issues when their oaths of offices leave each official with the duty to see that they uphold the Constitutional and not push it as far as they think a court might let them get away with.

It seems to me that liberty might be more secure in the long run if voters and executive and legislative official did not leave this duty to the courts. From the Alien and Sedition Acts to the Palmer raids/Red scare it has been the electorate and/or executive and legislative branches that have struck back against creeping despotism.

Relying too much on the judiciary relieves these other actors of their responsibility and may leave use too vulnerable to future encroachments by the government. The success of the NRA in using the political process to enforce (a view) of the 2nd amendment, while not leading to a quick decisive 'win', has been quite impressive.

Kevin

Anonymous said...

To follow up on the comments of some other posters I wonder to what extent a judiciary that is much more active in defining and enforcing the boundaries of Constitutional behavior has led to the other branches being much less concerned about policing the Constitutionality of their own and the other branch of government's behavior -as well as the voter's doing the same. It seems to me that everyone is too willing to leave it to courts to decide these issues when their oaths of offices leave each official with the duty to see that they uphold the Constitutional and not push it as far as they think a court might let them get away with.

It seems to me that liberty might be more secure in the long run if voters and executive and legislative official did not leave this duty to the courts. From the Alien and Sedition Acts to the Palmer raids/Red scare it has been the electorate and/or executive and legislative branches that have struck back against creeping despotism.

Relying too much on the judiciary relieves these other actors of their responsibility and may leave use too vulnerable to future encroachments by the government. The success of the NRA in using the political process to enforce (a view) of the 2nd amendment, while not leading to a quick decisive 'win', has been quite impressive.

Kevin

AST said...

I find the question in the title to be inapposite. The conferences aren't held to provide money to build cathedrals or pay clergy. There's also a clear distinction between Islam and Christianity in that the former stands for the unity of religion and state, whereas that is specifically prohibited by the Constitution and nearly all other religious organizations accept that limitation.

What the President is promoting is the provision of funds to assist religious groups in providing what most if not all of us believe are beneficial services to society as a whole. Of course, there are many religion-like organizations who get federal funding to promote their own special causes. The fact that we recognize religions as eleemosynary institutions should entitle them to be treated similarly to other groups given money by government to do good.

Personally, I believe that most of our jurisprudence in this area ought to be junked. The establishment and freedom of religion clauses cannot be reasonably interpreted to establish a "wall of separation." They stand for tolerance, but the courts and the enemies of religion have turned them into an injunction for intolerance.

Yevgeny Vilensky said...

Palladian:

I almost spat the coffee out onto my keyboard reading the bit about graffiti on the back of the judges chair. Thank you. I needed that.

Anonymous said...

Not being a lawyer nor sure that I follow all thats been said, how does the Reverand Jesse Jackson's programs such as Rainbow Push fit in here. These programs have been receiving Federal and State,(Il.),funds for a long period.

Simon said...

"I wonder to what extent a judiciary that is much more active in defining and enforcing the boundaries of Constitutional behavior has led to the other branches being much less concerned about policing the Constitutionality of their own and the other branch of government's behavior

Well, I would have said that quite the contrary: the Congress stopped worrying about the Constitution when the Supreme Court lost interest in enforcing meaningful limitations on Congress' power. That's why Lopez was such a bombshell: in the days before that case, "[t]he notion that Congress was the institution that would protect the interests of federalism seemed to be gaining ground," A. Althouse, Chief Justice Rehnquist and the Search for Judicially Enforcable Federalism, 10 Tex. Rev. of L & Pol. 275, 277 (2006), a notion akin to the notion that foxes are the institution best-placed to protect the intersts of the henhouse. The Court made great strides in the 1990s to curtail Congress' power, but "then it seemed to get cold feet," id. at 279 -- or rather, Justice Kennedy (and, less frequently, Justice O'Connor) got cold feet. That is entirely predictable, and even more regrettable, in my view, since "O'Connor and Kennedy favor[] a more pragmatic approach to federalism ... [which entails] a more flexible analysis of what would work well and produce desirable results." Id. at 278.

Unfortunately, I think that the more "pragmatic" the Court shows itself willing to be, the more Congress will be willing to take. For a brief moment, it looked very much as if the court was going to get serious about constraining Congress (which is, in many practical ways, the same thing as enforcing federalism), and Congress started to throw figleafs into legislation to cover its modesty. If the court now backs away, do not expect Congress to get serious about the Constituion, especially now it is run by precisely the same bunch who have very little regard for the Constitution, and created precisely the mess that made Lopez so shocking in the first place.

The bottom line is, the elective branches will only ever seek to shed limitations on their own power. That is one reason why the seventeenth amendment was such a catastrophic blunder, and it is certainly the upshot thereof. See T. Zywicki, Beyond the Shell and Husk of History: The History of the Seventeenth Amendment and Its Implications for Current Reform Proposals, 45 Cleveland St. L. Rev. 165 (1997). If the courts don't enforce federalism, no one will.

ed said...

Hmmmm.

1. The problem I personally have with the system is that it frankly seems to me that judges simply cannot exist without judging. That the entire reason for their existence is in fact to judge and that they must, to preserve that existence, find examples upon which to perform their assigned judging tasks.

So the problem is that, as time passes, we get more and more judging because there's no effective time limit on any judgement. All judgements are effectively of infinite duration. So if we're facing a rather silly situation now, then what of America in 100 years? 200?

2. The other problem is that original intent is frankly often in the eyes of the beholder. Who then seeks the most obscure, irrelevant and pointless documentation involving a personal letter to the 3rd cousin of a father-in-law in order to show that there is something that might be construed as support for that position.

3. That many laws and judgements seem to this layman to be so badly written that the entire outcome of a later court case depends on the exact wording used. And considering how imprecise some people can be, that seems a bit odd to me.

...

As you may expect. I rather prefer less law and more Constitution in my constitutional law. And in my opinion I really don't care overly much what people wrote in other documents. The Constitution is what it is. The writing in it is more than sufficient and the rest of what seems to pass as consitutional scholarship seems to be nothing more than obscure documentary one-upmanship.

Anonymous said...

As a faithful worshipper of "SUPER CHICKEN" I demand that, in accordance with the Clause -- you know, the Clause, whatever... uhh... Clause that is -- it be removed from the courtroom like, totally right now.

And as a faithful worshipper of Ted Kennedy, I demand that he be removed from the Senate for the same reason. And shot.

David said...

The purpose of the Establishment Clause, when first adopted, was to make clear that the national government couldn't have a state-supported church, and couldn't interfere with the state's state-supported churches. The last of the state establishments was in Massachusetts, which got rid of it -- voluntarily, as no one thought its establishment was unconstitutional -- in 1832.

And are you people really under the impression that the federal government doesn't employ priests, ministers, rabbis and imams or provide places of worship for them?

Clayton said...

"Gerry: Take into account the words of James Madison in what was a key document reflecting the intent of the Establishment Clause:"

Isn't it odd that Congress managed to pass a law in 1801 that used "money from sales of federal lands in the Ohio Territory to fund whatever church the majority of the township wanted, and Madison didn't seem to raise a fuss about it? See Journal of the Senate of the United States of America, 1789-1873, December 30, 1801:

"Mr. Tracy gave notice that he should, to-morrow, ask leave to bring in a bill to carry into effect the appropriations of lands in the purchase of the Ohio company, in the northwestern territory, for the support of schools and religion, and for other purposes."

As late as 1833, you can find Congressional bills that make reference to this, such as HR 653, 22nd Cong., 2nd sess.

"To authorize the Legislature of the State of Ohio to sell the land reserved for the support of religion in the Ohio Company...."

See American State Papers, House of Representatives, 11th Congress, 3rd Session, Public Lands: Volume 2, p. 220, document 187:

"It appears to the committee, by the statement of the petitioners, that the third township of the eighth range in the Ohio Company's purchase is a fractional township, being intersected near the centre by the boundary line that separates the track purchased from the donation tract conveyed to the said company; that the said fractional township does not contain the section No. 29, set apart for the support of religion in the several townships in the said purchase, whereby the inhabitants are deprived of the benefit of the ministerial lands."

Madison certainly wanted to see Virginia out of the establishment business, and specifically he rejected not just single establishment (one particular denomination gets funded) but also multiple establishment (as happened in Massachusetts on a community by community basis, and happened with section 29 in the Ohio Territory). It is at not all clear that Madison's view was universally shared, or even shared by a majority of the Framers.

Simon said...

ed said...
"[I]t frankly seems to me that judges simply cannot exist without judging."

Fortunately (or not), we live in a litigious society, where there seems to be no shortage of people willing to feed the judges with an endless parade of cases to judge. I rather imagine most judges would be happier with a rather smaller docket.


"original intent is frankly often in the eyes of the beholder."

Which is one reason why virtually no originalist is interested in the original intent of the framers. (The other reason is that intentionalism and formalism are basically in tension). I was just talking about this today.