Bagels and Plymouth Rock

The faith-based initiative sustained its first major Supreme Court battle late last month, when a Wisconsin-based group of atheists and agnostics challenged the constitutionality of the White House Office of Faith-Based and Community Initiatives.

On Feb. 28, the court heard oral arguments in Hein v. Freedom from Religion Foundation, the first religious liberty case to be heard since the confirmation of Chief Justice John Roberts and Justice Samuel Alito.

"Hein" is Jay Hein ("Politics matter," Feb. 24, 2007), the government defendant and director of the White House faith-based office. President George Bush launched the office in 2001 as part of his emphasis on compassionate conservatism.

The Freedom from Religion Foundation (FFRF), which now claims 8,500 members in 50 states, argues that spending taxpayer dollars on faith-based federal conferences violates the Establishment Clause of the First Amendment, "Congress shall make no law respecting an establishment of religion."

Founded in 1978, the organization first clashed with religious leaders over abortion. The FFRF website now boasts "legal accomplishments" that include overturning a state Good Friday holiday, removing Ten Commandments monuments from public property, and "ending 51 years of illegal Bible instruction in public schools."

Their next target was higher-profile. FFRF filed suit against the White House, challenging federal conferences that promote and support faith-based service, like the National Conference on Faith-Based and Community Initiatives held in March 2006.

"If you're addicted to alcohol, if a faith program is able to get you off alcohol, we ought to say, hallelujah and thanks, at the federal level," President Bush said at the conference last year, telling representatives from religious charities and nonprofits that the government should focus on the results rather than the process of philanthropy.

But Hein does not address the merits of faith-based service-at least not yet. For now, the case pertains only to the legal doctrine of standing. The court must decide whether taxpayers have the right to sue over federal support for faith-based initiatives created by an executive order.

Traditionally, taxpayers do not have legal standing to sue the government over program funding, because individual tax contributions are too remotely connected to the expenditure itself. But the outcome of this case may hinge on the 1968 Flast v. Cohen decision, when the Warren Court carved out an Establishment Clause exception, allowing taxpayer standing only for challenges to "exercises of congressional power."

At the Hein oral arguments, the court grilled attorneys from both sides with a litany of hypotheticals about who could sue and when.

In one example, Justice Breyer proposed a Pilgrim church, funded by the government and built on Plymouth Rock to commemorate the Puritan religion. Could a taxpayer sue for violation of the Establishment Clause then?

"I would say no," responded Solicitor General Paul Clement, the attorney for the government.

In another exchange, Justice Scalia interrogated Andrew Pincus, the attorney for the Freedom from Religion Foundation. What if the president flew to a religious event on Air Force One, using taxpayer dollars for maintenance, fuel, and security? What if the president bought the bagels for a Christian prayer breakfast? Could a taxpayer sue then?

At points in the conversation, the court seemed equally confused, as both lawyers and justices attempted to parse the notoriously sticky Establishment Clause jurisprudence.

When Clement admitted he was doing the best he could with the existing precedent, Scalia quipped, "Why didn't you say so? I've been trying to make sense out of what you're saying."

"Well, and I've been trying to make sense out of this court's precedents," Clement countered, inducing laughter in the courtroom. A decision in the case is expected by July.