Once More into the Religion Clauses

The case itself was at once hugely important and monumentally dull. These were the facts: In January 2001, minutes after he had been sworn in as president, George W. Bush fulfilled an innocuous campaign promise: He issued Executive Order No. 13199. Thus he both created and funded a new White House Office of Faith-Based and Community Initiatives. If you have never heard of it, you're not alone.

The idea behind the newborn office was politically nourishing. Mr. Bush meant to please church groups across the land. They rarely get seats at a federal table. Under this executive order, they would be given some inexpensive crumbs. They would be taught how best to apply for federal grants without offending constitutional chefs. Toward that end, federal agencies would assist them in sponsoring conferences, seminars, lectures and model programs. There would be guest speakers, publications, letterheads, travel accounts — the whole nine yards.


Naturally, in a nation that numbers 300 million constitutional lawyers, word of these proposed expenditures spread rapidly. The Wisconsin-based Freedom From Religion Foundation leaped into action. After all, said the foundation's lawyers, the Constitution decrees that Congress shall make no law respecting an establishment of religion. Ho, ho, responded the White House, Congress had not made a law respecting an establishment of religion: We folks in the White House did it all by ourselves.

Could this be? Could the First Amendment be so easily evaded?

The disagreement wound up on the lower slopes of Olympus, not on a towering issue of First Amendment law but on a hornbook question of standing. He who would sue successfully must first have standing to sue. Speaking through Judge Richard Posner, a panel of the seventh Circuit held that the Wisconsin-based taxpayers did indeed have standing to challenge the White House program. The federal funds spent on these church-sponsored seminars and conferences were something more than zero — something more than "incidental." The plaintiffs could sue on everyone's behalf.

Last week, in an opinion by Justice Samuel Alito, the Supreme Court reversed, more or less. Only Justice Anthony Kennedy and Chief Justice John Roberts signed on to Alito's opinion in full. Justice Antonin Scalia, joined by Justice Clarence Thomas, grumpily and separately concurred only in the judgment. The other four justices, speaking through Justice David Souter, dissented. They held that "when the government spends money for religious purposes a taxpayer's injury is serious and concrete enough to be judicially cognizable."

Justice Alito sought to make it clear that no heavens were falling with his opinion for the court. The law requires that in personal injury suits, some real person must be really injured. Here, the injury to the Wisconsin plaintiffs was "vague and ill-defined." Alito appeared to wonder if any definable trace of religious motivation would serve to nullify a federal expenditure. Suppose the president or a Cabinet member traveled at the taxpayers' expense to a prayer breakfast: Could such outlays be enjoined? How minimis is de minimis?

Justice Kennedy ringingly concurred: "The court should not authorize the constant intrusion upon the executive realm that would result from granting taxpayer standing in the instant case."

Justice Scalia concurred only in the judgment and not in the reasoning behind it. He conceded that Alito's opinion for the court was consistent with a line of cases stretching back to 1968 — but the consistency "unfortunately lies in the creation of utterly meaningless distinctions." These plaintiffs in Wisconsin — did they have "standing" to sue? What personal injury had they suffered? Surely not every taxpayer has standing to sue about everything that offends him. Scalia pointed to the Supreme Court's marshal: He is paid in part to proclaim, "God save the United States and this honorable court!" Could this ritual incantation be enjoined?

Scalia framed the question: "Is a taxpayer's purely psychological displeasure that his funds are being spent in an allegedly unlawful manner ever sufficiently concrete and particularized to support Article III standing? The answer is plainly no."

Scalia may be right. In my view he usually is. But if no one has standing to sue, how will we know?

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

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