Unfortunately, President Bush and the religious right disagree.

On Wednesday, February 28, the Supreme Court heard arguments in Hein v Freedom from Religion Foundation, a case that threatens to make the federal government completely immune from challenges when it spends money to support religion.

In a 1968 court case, Flast v Cohen, the Supreme Court recognized an exception to the usual rule that a person cannot sue as a taxpayer to stop the spending of money that violates the Constitution. In that case, the Court said that the Establishment Clause of the First Amendment was meant to be a limit on Congress’s taxing and spending power and that therefore taxpayers do have standing to enforce its commands.

Hein v Freedom from Religion Foundation is a challenge to the Bush administration’s unprecedented attempt to funnel money to religious entities providing social services. In his first days as President, George W. Bush created an Office of Faith Based and Community Initiatives for the purpose of giving money to religious institutions. The question is whether a taxpayer can bring a challenge to this as violating the Establishment Clause.

It is to be hoped that the Supreme Court will reaffirm Flast v Cohen and allow taxpayers to challenge this effort to support religion with federal tax dollars. But there is a real possibility that the Court could narrow or even overrule Flast.

If that happens, then there would be no way to sue to stop the federal government from giving any form of assistance to churches, synagogues, mosques, or other religious entities. The Establishment Clause could be ignored by the federal government and no one could stop it.

This possibility reaffirms the importance of our nations’s commitment to the seperation of church and state and our fight against the relgious right’s war on this American principle.

Sincerely,

Erwin Chemerinsky
DefCon advisory board member
Alston & Bird Professor of Law and Political Science, Duke University.

P.S. Stay tuned to the DefCon Blog for updates on this case and the Court’s final decision.