Of the making of First Amendment cases, said the Preacher, there shall be no end. Ecclesiastes was talking, resignedly, about Case No. 06-157 in the Supreme Court. The case will be argued on Feb. 28; and when the argument is over and the case has been decided, the First Amendment will be even murkier than the First Amendment is today.
That is prophecy, but it's prophecy informed by two centuries of contradictory experience. From the time they were ratified in 1791, the religion clauses of the Constitution have confounded scholars, lawyers and laymen alike. "Congress," says the First Amendment, "shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." Having adopted the amendment, Congress promptly provided chaplains for the armed services and prescribed daily prayers for the House and Senate.
The pending argument has nothing to do with a "law" enacted by Congress. The case hangs on a program that sprang full-blown from the brow of the president six years ago. Our leader had barely taken off his swearing-in suit before issuing Executive Order No. 13,199. Thus he created the White House Office of Faith-Based and Community Initiatives. In companion actions, he directed half a dozen federal departments to work with local community groups -- specifically including church-affiliated groups -- in seeking grants for public services. Through a series of conferences throughout the nation, these groups would have "the fullest opportunity permitted by law to compete on a level playing field" for state and federal subsidies.
The president's plan naturally provoked opposition from the Freedom From Religion Foundation in Madison, Wis. In the name of three taxpaying complainants, the atheist foundation sued the White House office, asking an injunction to prohibit the use of federal funds by faith-based organizations. The U.S. District Court dismissed their complaint, but a panel of the 7th Circuit reversed in a 2-1 decision a year ago. Now the Supreme Court will attempt to clarify the muddy waters of its First Amendment jurisprudence. Pessimists will cry "Fat chance!" Patient observers will hope for something constructive.
Circuit Judge Richard Posner ranks among the ablest judges on the federal bench, but his opinion in this case a year ago was not his best work. He murkily defined the "only question" before his panel as "whether a taxpayer can ever have standing under Article III of the Constitution to litigate an alleged violation of the First Amendment's establishment clause unless Congress has earmarked money for the program or activity that is challenged." He added, helpfully:
"The prudential principles of standing, like other common law principles, are protean and mutable (the term 'prudential' is the very antithesis of a definite rule or standard)."
Seeking to explain his point, Posner ventured into a hypothetical example: "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."
In such a far-fetched event, clearly involving a significant expenditure "respecting an establishment of religion," grounds obviously could be found for a taxpayers' suit. But suppose the challenged action, as in this case, involves only a presidential initiative of both sectarian and non-sectarian application? How discretionary is a president's discretion? How trivial is trivial?
Posner's point, after 16 rambling pages, is that taxpayers have standing to challenge any presidential program that promotes religion, even if the program is created entirely by presidential order and not by specific statute. Posner cannot quote a "law made by Congress." There is none.
In a spirited dissent, Judge Kenneth F. Ripple challenged Posner's "dramatic expansion" of well established rules on "standing." The general rule is that suit may be brought only by a plaintiff who has "personally suffered actual or threatened injury as a result of the putatively illegal conduct of a defendant." Here the named plaintiffs -- Anne Nicol Gaylor, Annie Laurie Gaylor and Dan Barker -- have personally suffered no tangible injury whatever. If they have "standing" to sue, it is standing that rests upon a foundation of very swampy law.
Judge Kilpatrick, meaning me, joins Judge Ripple in dissent. If the president has abused his powers, impeach the fellow! Go ahead! The Senate would never convict. Meanwhile, don't mess with the First Amendment.