Court hears religion case

WASHINGTON — In a closely watched church-state separation case, a Bush administration lawyer urged the Supreme Court on Wednesday to shield the president's "faith-based initiative" from court challenges.

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 the 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 the 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 President Bush's two appointees — Chief Justice John Roberts and Justice Samuel Alito — took their seats.

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. If the justices rule in favor of Freedom From Religion, the group would still have to prove its case in court.

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.

But 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.

Normally, people must say they have suffered a personal injury of some sort before they can sue in court. For example, taxpayers cannot sue to stop the war in Iraq simply because they disagree with it. But nearly 40 years ago, the court under then-Chief Justice Earl Warren made an exception for challenges to government spending that promotes religion.

A coalition of liberal groups filed a friend-of-the-court brief that urged the court to reject the administration's argument.

"Tax dollars may not be used to subsidize religious activity," said Steven Shapiro, the American Civil Liberties Union's legal director. "Barring taxpayers from enforcing this fundamental principle in court would effectively license the government to violate the Constitution."

The case will be decided in several months.