James J. Kilpatrick

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.


James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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