Government by Law, Not Faith
New York Times Editorial

February 28, 2007

The Supreme Court hears arguments today in a case that could have a broad impact on whether the courthouse door remains open to ordinary Americans who believe that the government is undermining the separation of church and state.

The question before the court is whether a group seeking to preserve the separation of church and state can mount a First Amendment challenge to the Bush administration’s "faith based" initiatives. The arguments turn on a technical question of whether taxpayers have standing, or the right to initiate this kind of suit, but the real-world implications are serious. If the court rules that the group does not have standing, it will be much harder to stop government from giving unconstitutional aid to religion.

Soon after taking office, President Bush established the White House Office of Faith-Based and Community Initiatives, and faith-based offices in departments like Justice and Education. They were intended to increase the federal grant money going to religious organizations, and they seem to have been highly effective. The plaintiffs cited figures showing that from 2003 to 2005, the number of federal grants to religious groups increased 38 percent. The Freedom From Religion Foundation and several of its members sued. They say that because the faith-based initiatives favor religious applicants for grants over secular applicants, they violate the Establishment Clause of the First Amendment, which prohibits government support for religion.

These are profound issues, but because the administration challenged the right of the foundation and its members to sue, the courts must decide whether the plaintiffs have the right to sue in this case before they can consider the constitutionality of the faith-based programs. An appeals court has ruled, correctly, that the plaintiffs have standing.

In many cases, taxpayers are not in fact allowed to sue to challenge government actions, but the Supreme Court has long held that they have standing to allege violations of the Establishment Clause. Without this sort of broad standing, many entanglements between church and state would never make it to court.

The Bush administration is pushing an incorrect view of standing as it tries to stop the courts from reaching the First Amendment issue. Taxpayers can challenge the financing of religious activity, the administration claims, only when a Congressional statute expressly authorizes the spending. There is no statute behind the faith-based initiative.

In his decision for the appeals court, Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit, in Chicago, convincingly explained why this argument is inconsistent with the Supreme Court’s precedents on the Establishment Clause.

Procedural issues like standing can have an enormous impact on the administration of justice if they close the courthouse door on people with valid legal claims. The Supreme Court has made it clear that taxpayers may challenge government assistance to religion. The justices should affirm Judge Posner’s ruling so the courts can move on to the important question: Do the Bush administration’s faith-based policies violate the Constitution?