Monthly Archives: June 2007

Faith Based Charity Not Open To The Faithless

Church and State, Constitution, Religious Liberty

The Supreme Court ruled today that atheists don’t have standing to challenge their exclusion from President Bush’s faith-based initiatives programs:

The Supreme Court today handed President Bush’s faith-based initiatives program a victory, ruling that federal taxpayers cannot challenge the constitutionality of the White House’s efforts to help religious groups obtain government funding for their social programs.

In a 5-4 decision, the court blocked a lawsuit by a Wisconsin-based group of atheists and agnostics against officials of the Bush administration, including the head of the White House Office of Faith-Based and Community Initiatives.

The court ruled that the suit, by the Freedom from Religion Foundation and three of its taxpaying members, could not go forward because ordinary taxpayers do not have standing to challenge the expenditures at issue. The ruling reversed a 2-1 decision in favor of the foundation by a three-judge panel of the U.S. Court of Appeals for the 7th Circuit in January 2006.

Liberal groups blasted the court’s decision in Hein v. Freedom From Religion Foundation as a setback for the First Amendment and a paean to the religious right, while religious conservatives hailed it as a major triumph for the faith-based initiative.

The foundation had complained that parts of the faith-based initiatives program favored religious groups over secular ones, violating the Establishment Clause of the Constitution’s First Amendment, which says in part that “Congress shall make no law respecting an establishment of religion.”

In its suit, filed in 2004, the foundation claimed that the faith-based initiatives office, formed by Bush in January 2001 through an executive order, unfairly used taxpayer money to provide an edge to religious groups seeking federal funding, and effectively endorsed “religious belief over non-belief.”

Under current Establishment Clause precedents, it would seem fairly clear that an expenditure program that explicitly favored religious groups over non-religious groups would be unconstitutional. But the Supreme Court didn’t even reach that issue, they agreed with the Bush Administration’s argument that individual taxpayers do not have standing to challenge an expenditure of money, even if it is unconstitutional:

In an opinion joined by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy, Justice Samuel A. Alito Jr. wrote that “the payment of taxes is generally not enough to establish standing to challenge an action taken by the federal government.”

Given the size of the federal budget, “it is a complete fiction to argue that an unconstitutional federal expenditure causes an individual federal taxpayer any measurable economic harm,” Alito said. “And if every federal taxpayer could sue to challenge any government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus.”

He noted that “Congress did not specifically authorize the use of federal funds to pay for the conferences or speeches that the plaintiffs challenged.” Rather, those activities were funded from “general Executive Branch appropriations,” he wrote.

Not only does that seem to contradict a 1968 Supreme Court decision which the Court did not overturn today, it raises the question of who, if anyone has the right to challenge an unconstitutional expenditure in Court if it isn’t a taxpayer.

Justice Souter puts it best:

In a dissenting opinion, Justice David H. Souter wrote that today’s ruling “closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury.” He added, “I see no basis for this distinction in either logic or precedent. . . .”

In this case, “there is no dispute that taxpayer money in identifiable amounts is funding conferences, and these are alleged to have the purpose of promoting religion,” Souter wrote. “When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injury.”

And so does the Constitution.

Doug Mataconis
http://www.belowthebeltway.com

Diane Feinstein vs. The First Amendment

Constitution, Free Speech, Immigration, Individual Rights

California Senator Diane Feinstein indicated yesterday that she might consider reviving the so-called fairness doctrine:

Feinstein, speaking on “Fox News Sunday” with Sen. Trent Lott, R-Miss., said talk radio in particular has presented a one-sided view of immigration reform legislation being considered by the Senate.

U.S. talk radio is dominated by conservative voices.

“This is a very complicated bill,” said Feinstein. “Most people don’t know what’s in this bill. Therefore, to just have one or two things dramatized and taken out of context, such as the word amnesty — we have a silent amnesty right now, but nobody goes into that. Nobody goes into the flaws of our broken system.”

In other words, the American people are too stupid to understand the “complicated” issue of immigration and are nothing more than mindlessly repeating what guys like Limbaugh, Hannity, and Savage are saying. Now, I don’t necessarily agree with the anti-immigration crowd, but it’s clear to me that they know exactly what’s in the Senate immigration bill, and that is why they are opposed to it.

Senator Feinstein, the reason your Senate bill is failing is not because of talk radio, it’s because a significant portion of the American public quite obviously does not support it.

Asked if she would revive the fairness doctrine, which used to require broadcasters to present competing sides of controversial issues, Feinstein said she was “looking at it.”

“I remember when there was a fairness doctrine,” she said, “and I think there was much more serious correct reporting to people.”

No, Senator Feinstein isn’t worried about “fairness” she’s worried about the fact that, thanks to talk radio, people are getting the chance to become involved in the poltiical process and, yes, to think for themselves.

H/T: Hit & Run

Doug Mataconis
http://www.belowthebeltway.com

Supreme Court Rules Against Bong Hits 4 Jesus Student

Constitution, Education, Free Speech, Individual Rights

The Supreme Court declined the opportunity to strike a blow for the rights of students, instead choosing to uphold a Principal’s decision to suspend a student for displaying what was clearly a nonsensical sign:

WASHINGTON — The Supreme Court tightened limits on student speech Monday, ruling against a high school student and his 14-foot-long “Bong Hits 4 Jesus” banner.

Schools may prohibit student expression that can be interpreted as advocating drug use, Chief Justice John Roberts wrote for the court in a 5-4 ruling.

Joseph Frederick unfurled his homemade sign on a winter morning in 2002, as the Olympic torch made its way through Juneau, Alaska, en route to the Winter Olympics in Salt Lake City.

Frederick said the banner was a nonsensical message that he first saw on a snowboard. He intended the banner to proclaim his right to say anything at all.

His principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating for drug use.

“The message on Frederick’s banner is cryptic,” Roberts said. “But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one.”

Morse suspended the student, prompting a federal civil rights lawsuit.

In other words, the actual content of the message doesn’t matter so long as someone in authority thinks that it advocates something that violates school rules. More disturbing, though, is the fact that the Court does not seem to even address the fact that this happened outside the school, a fact which law professor Ann Althouse emphasized when she wrote about this case in January:

This case is about something that happened on the street and not in a classroom. The banner was, of course, silent, and the occasion was a parade. It’s quite different from disruptive speech during a lesson. Scalia offered a distinction between “disruptive” and “undermining.” The school’s real objection is that a pro-drug message undermines the message it endorses. That is, they don’t want disagreement and debate. They still convey their anti-drug message all the time, and this student isn’t interrupting them or even distracting anyone from hearing that message. He’s just delivering a counter-message on another occasion, and they object to the argument. That should be held to violate the First Amendment.

Unfortunately, Professor Althouse’s views are not shared by the five Justices in the majority.

Update: KipEsquire has two interesting observations:

Best as I can tell after a quick skim, the majority opinion and concurrences completely ignore the pesky little fact that Frederick was over 18 at the time of the incident. Therefore, any portion of the decision or concurrences that rely on Tinker’s* (or any other case’s) distinction between the rights of students and the rights of adults is per se invalid as applied to Frederick, who was an adult at the time.

The gist of Roberts’ opinion seems to be that “fighting drug use” is a sufficiently compelling governmental interest to censor free speech (again, of an adult student not in attendance at the time, off school grounds and displaying what could possibly be deemed a political message).

Or, as Kip puts it, the Court has effectively decided that the War On Drugs trumps the First Amendment.

Doug Mataconis
http://www.belowthebeltway.com

Supreme Court Strikes Down Key Provisions of McCain-Feingold

Constitution, Free Speech, Individual Rights, Politics

It was a close vote, but the Supreme Court today struck down a key provision of the McCain-Feingold law:

WASHINGTON — The Supreme Court loosened restrictions Monday on corporate- and union-funded television ads that air close to elections, weakening a key provision of a landmark campaign finance law.

The court, split 5-4, upheld an appeals court ruling that an anti-abortion group should have been allowed to air ads during the final two months before the 2004 elections. The law unreasonably limits speech and violates the group’s First Amendment rights, the court said.

The decision could lead to a bigger role for corporations, unions and other interest groups in the 2008 presidential and congressional elections.

The case involved advertisements that Wisconsin Right to Life was prevented from broadcasting. The ads asked voters to contact the state’s two senators, Democrats Russ Feingold and Herb Kohl, and urge them not to filibuster President Bush’s judicial nominees.

Feingold, a co-author of the campaign finance law, was up for re-election in 2004.

The provision in question was aimed at preventing the airing of issue ads that cast candidates in positive or negative lights while stopping short of explicitly calling for their election or defeat. Sponsors of such ads have contended they are exempt from certain limits on contributions in federal elections.

While the decision does not overturn McCain-Feingold completely, there clearly are some Justices who would go that far:

Three justices, Anthony Kennedy, Antonin Scalia and Clarence Thomas, would have overruled the court’s 2003 decision upholding the constitutionality of the provision.

Roberts and Justice Samuel Alito said only that the Wisconsin group’s ads are not the equivalent of explicit campaign ads and are not covered by the court’s 2003 decision.

That court, differently composed, upheld large portions of the law in its 2003 decision, including the provision in question in the current case.

Chief Justice Roberts sums it up well:

“Discussion of issues cannot be suppressed simply because the issues also may be pertinent in an election. Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”

And, unlike 2003, this time the First Amendment won.

Doug Mataconis
http://www.belowthebeltway.com

Monday Open Thread: Best & Worst States

Federalism, Open Thread

As someone who recently moved cross-country, I know that there are definite advantages and disadvantages to living in certain places. Government regulation in a state rarely defines life in that state, but can definitely impact quite a lot of aspects. Now that I live in California, I know that the advantages of perfect weather and proximity to the beach are offset by a few things: high gas prices, high taxes, and poor government (i.e. bad public schools, etc). That doesn’t even include things such as the regulatory state increasing the cost of every other product.

For the open thread, perhaps tell us a little about where you live, and why it’s a good or bad state… I’d particularly love to hear about some of the folks up in the Free State; once I can get my wife to stop voting Democrat, I might try to convince her to move cross-country to the bitter cold of freedom :-)

Brad Warbiany
https://thelibertypapers.org/
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