Supreme Court Questions Challenge to Faith-Based Federal Funds

WASHINGTON — Supreme Court justices questioned whether a group of taxpayers can sue to challenge President Bush's efforts to help religious groups compete for federal social-service funding.

Hearing arguments in Washington yesterday, several members of the court suggested the taxpayers shouldn't be able to challenge a series of conferences sponsored by the White House's Office of Faith-Based and Community Initiatives. The challengers say the sessions promoted religious organizations over secular ones, violating the Constitution.

"We would be supervising the White House and what it could say, who it could talk to," Justice Kennedy said. He said that type of oversight would be "quite intrusive."

The case will help shape how much power Americans have to sue when the government's executive branch promotes religion. The Bush administration is seeking to limit the scope of a 1968 Supreme Court ruling that said taxpayers could challenge statutes that directed money to be spent for religious purposes.

The 1968 decision marked an exception to the general rule that Americans can't go to court to contest how their tax dollars are spent because they don't have enough of a personal stake in the outcome.

How much practical impact the latest case will have isn't clear. Solicitor General Paul Clement, the administration's top courtroom lawyer, told the justices that a ruling in the government's favor wouldn't insulate it from lawsuits.

Mr. Clement said individuals still could claim that a government action favored religion in a coercive way — as when opponents challenged a Ten Commandments display on the Texas state capitol grounds in a recent high court case.

"If this court recognizes that there is not taxpayer standing, that does not mean that there won't be lawsuits," Mr. Clement argued.

Still, the dispute provoked several pointed exchanges among the justices and ultimately may split the court along ideological lines.

Justice Breyer, often a swing vote on religion cases, said the court had previously allowed taxpayer suits in religion cases "because people become terribly upset when they see some other religion getting the money from the state — for building a church, for example."

That drew a quick rebuke from Justice Scalia. "Getting upset is a constitutionally adequate reason to bring a lawsuit?" he asked.

Chief Justice Roberts and Justice Alito joined Justices Kennedy and Scalia in aiming pointed questions at the taxpayers' lawyer, Andrew Pincus.

"I don't understand under your theory why any taxpayer couldn't sue our marshal for standing up and saying, ‘God save the United States and this honorable court,"' Justice Roberts said, referring to the ritual words used to open every Supreme Court session.

Justices Ginsburg and Souter offered words of support for the taxpayer suit, as did Justice Scalia at several points.

Justices Scalia and Souter both questioned Mr. Clement's contention that so-called taxpayer standing wouldn't exist if the government built its own church, even though the practice itself would violate the constitutional ban on establishment of religion. Mr. Clement said taxpayer standing exists only when the government is distributing money to an outside source.

"You think there is a real difference insofar as whether the taxpayer is harmed between the Congress saying, ‘We're going to give money to a religious organization to build a church' and Congress saying, ‘We're going to build a church'?" Justice Scalia asked. "You really think there's a difference?"

The White House program was established through a series of executive orders and wasn't specifically authorized by Congress.

A federal appeals court said the taxpayers and the Wisconsinbased Freedom From Religion Foundation have legal standing to press their case.