U.S. Solicitor General Paul Clement said taxpayers who believe the White House is unconstitutionally promoting religion should not be accorded legal "standing" to sue in court. It would be too "intrusive on the executive branch" to permit lawsuits contesting how a president and his advisers conduct their affairs, he said.
The case involves a Wisconsin group called Freedom From Religion that sued in 2004 to challenge the "faith-based initiative" on First Amendment grounds. The group said White House officials were using public money to help church-based groups win grants and contracts.
It is the first major religion case to come before the Supreme Court since Bush's two appointees took their seats. In their questions Wednesday, both Chief Justice John Roberts Jr. and Justice Samuel Alito sounded as though they sided with the administration.
Overall, the nine justices seemed split during the hourlong argument. If they adopt the administration's view, the ruling could make it harder for critics to sue officials who use public money in ways that support religion. Roberts made clear he thought the group's claims should be thrown out of court. If taxpayers can sue the government whenever an official invokes God or religion, why couldn't anyone "sue our marshal for standing up and saying, 'God save the United States and this honorable court'?" asked Roberts, citing the invocation heard each day when the justices enter the court.
Taking the opposite view, Justice Stephen Breyer said courts and lawsuits are needed to enforce the separation of church and state.
"People become terribly upset when they see some other religion getting the money from the state" to subsidize their faith, he said.
This article appeared on page A - 7 of the San Francisco Chronicle