[NYTr] Supreme Ct's "Hein" Decision Eating Away Further at US Liberties

[All the News That Doesn't Fit]

[Two articles on the Supreme Court's decision in Hein v FFRF (which
couldn't have come before the Court at a worse time). It's now clear
that those who predicted the decision would be used to further deprive 
US citizens of their rights in many areas were correct.-NYTransfer] 


Freedom From Religion Foundation - Nov 12, 2007
http://www.ffrf.org

[The Indianapolis Star ran a super op-ed piece, "Wronged by the court's
fine print" (Nov. 12, 2007), about the application of the Supreme
Court's decision in Hein v. FFRF by the 7th U.S. Circuit Court of
Appeals, to throw out a successful challenge of legislative prayer. The
analysis, by Sheila Suess Kennedy, an associate professor of law and
public policy at the Indiana University School of Public and
Environmental Affairs in Indianapolis, warns that Christian
conservatives may not be so pleased when the Hein ruling is invoked to
throw out their lawsuits. -FFRF]


Indianapolis Star - Nov 12, 2007
http://www.indystar.com/apps/pbcs.dll/article?AID=/20071112/OPINION/711120302/-1/LOCAL17

Wronged by the court's fine print

by Sheila Suess Kennedy

The most lasting legacy of the Bush administration will be its success
in remaking the Supreme Court, and arguably the structure of American
government.

Most public debate over court appointees revolves around the so-called
culture war issues: abortion, gay rights, perhaps the death penalty.

These are important issues, but ultimately -- despite all the invective
about activist judges -- they'll be settled in the court of popular
opinion. Rhetoric aside, the court rarely gets all that far ahead of
the electorate in such matters.

The profound changes being wrought by this court are of a different
order. This is a court that consistently favors government power and
authority over citizens' rights. Americans are losing constitutional
liberties, but we don't notice, because it's all being done in
"technical" rulings, in the fine print that few understand.

Last year, for example, the court handed down a relatively obscure
ruling in Hein v. Freedom from Religion Foundation. FFRF had sued the
federal government, challenging parts of the president's faith-based
initiative. The court didn't rule on the merits of the case; instead,
it tightened a doctrine called "taxpayer standing" and ruled that the
plaintiffs, being mere taxpayers, had no right to complain.

The standing doctrine has a legitimate purpose. If any taxpayer could
sue any government agency or official willy-nilly, the number of
frivolous, costly and time-consuming lawsuits would bring government to
a halt. But previous courts have recognized the importance of balance,
of protecting fundamental rights against government overreaching. It's
fine to say, "You have the right to worship as you please," but simply
saying it doesn't make it so. If no one has the right to sue when
government denies you that right -- if there is nothing you can do when
government breaks the rules -- there really isn't a right. By
definition, rights are enforceable.

After Hein, taxpayers who complain that a government agency is
violating the First Amendment can't just point to the improper
expenditure of tax dollars. They have to identify a statute that
specifically directs that the funds be spent in the allegedly
unconstitutional way. If the challenged expenditures were made in the
discretion of an elected or appointed official, too bad.

Proponents of Christian legislative prayer applauded when the 7th U.S.
Circuit Court of Appeals used the new restrictions announced in Hein to
reverse the earlier ruling against such prayer. The court may find
future applications of the doctrine less to its liking. Government
officials violate the Free Exercise provisions of the First Amendment
as well as the Establishment Clause, and conservative taxpayers are
just as likely to sue as liberal ones. The ruling in Hein reduced the
rights of all taxpayers, whatever their position on a particular issue.

Someone once joked that Justice Antonin Scalia would uphold the death
penalty for littering if the government wanted to impose it. His new
colleagues would join him. Enthusiastically.

The current Supreme Court is neither liberal nor conservative. It's
authoritarian.

                            ***

[A rather grim legal analysis of the effect of the Hein v. FFRF decision
by the US Supreme Court by the AP's Ryan Foley. -FFRF]


Associated Press - Nov 8, 2007
http://wcco.com/wisconsinwire/22.0.html?type=local&state=WI&category=n&filename=WI--Church-StateRulin.xml

Ruling has 'quick and dramatic' impact on church-state cases

By Ryan Foley

MADISON, Wis. (AP) A months-old U.S. Supreme Court ruling quickly
weakened the ability of taxpayers to sue government for violating the
separation of church and state, legal experts say.

The court ruled in June that taxpayers could not sue over executive
branch spending that allegedly promoted religion. The 5-4 decision
dismissed a lawsuit by the Madison-based Freedom From Religion
Foundation that challenged President Bush's faith-based initiative.

Taxpayers only have the standing to sue when Congress specifically
authorizes money for religious purposes, Justice Samuel Alito wrote.
Otherwise, courts would be clogged with cases complaining about the
day-to-day activities of government employees, he wrote.

At the time, advocates for the separation of church and state said the
ruling's impact would be limited. But less than six months later, legal
observers are startled by the fallout in cases claiming violations of
the Establishment Clause of the First Amendment, which prohibits
government-sponsored religion.

``This is a bigger deal than anybody realized and can really change the
dynamics of when these cases get brought,'' said George Washington
University law professor Ira Lupu. ``This could actually turn out to be
quite sweeping in the way it limits the ability of people to challenge
what the government does as a violation of the Establishment Clause.''

Lupu and his colleague Robert Tuttle argue in the draft of a new paper
that the ruling's impact was ``quick and dramatic'' across the nation.

Just last week, the 7th Circuit Court of Appeals cited the new
precedent in ruling 2-1 that taxpayers cannot challenge the practice by
the Indiana House of Representatives of opening its sessions with
prayer.

A federal judge previously ruled the practice was unconstitutional. But
the appeals court said taxpayers could not sue since lawmakers had not
set aside money for the prayers and the incidental costs associated
with them came from its general budget.

``The plaintiffs have not tied their status as taxpayers to the House's
allegedly unconstitutional practice of regularly offering a sectarian
prayer,'' Judge Kenneth Ripple wrote for the majority.

Government lawyers are asking the same appeals court to dismiss a
lawsuit that objects to the U.S. Department of Veterans Affairs' use of
religion in treating ailing veterans.

The Madison-based foundation is suing over the agency's use of
chaplains, its practice of giving patients spiritual assessments and
its drug and alcohol treatment programs that incorporate religion.

In a brief filed last week, Department of Justice lawyers said the case
``runs afoul of each of the principles adopted'' in the June decision.
The plaintiffs cannot point to specific funding earmarks for the
religious activities they claim are unconstitutional, they wrote. A
decision on that issue is expected in coming weeks.

The department did not object to the foundation's ability to sue in the
district court, where a judge upheld the constitutionality of the
Veterans Affairs programs.

``It was previously assumed entirely that taxpayers would have standing
to sue a program of this pervasive nature that is funded by Congress,''
said Annie Laurie Gaylor, the foundation's co-president. ``That is very
revealing of how the ruling will be used.''

In another case, the foundation recently dropped a suit that targeted a
taxpayer-funded Christian ministry program at a women's prison in New
Mexico. The foundation voluntarily dismissed the 2-year-old case after
a judge warned its members likely did not have standing in light of the
Supreme Court ruling.

Gaylor said that decision was painful because they had strong evidence
the program was illegally indoctrinating inmates with Christian
teachings.

The foundation has also dropped plans to sue several states and
universities over faith-based programs that were created by the
executive branch, she said.

Daniel Mach, director of litigation at the ACLU Program on Freedom of
Religion and Belief in Washington, said the ruling should not affect
cases where money is specifically earmarked for religious purposes. He
pointed to a ruling in Louisiana last month, where a federal judge
blocked two churches from receiving taxpayer-funded grants.

He said cases where observers and participants not taxpayers object to
prayer in schools or other government programs should also still be
allowed to move forward. As a result, he said the overall impact should
be limited.

``Proponents of government-sponsored religion are trying to expand the
Supreme Court's narrow decision,'' he said.

Judith Schaeffer, legal director for People For The American Way
Foundation, a liberal-leaning advocacy group, said in an interview she
was disturbed by the recent legal developments.

``The ruling has created a 'Get out of jail free' card for certain
government officials to engage in unconstitutional conduct because it
cannot be challenged by taxpayers,'' she said. ``It is another instance
where the courthouse doors will be closed to Americans who are seeking
justice.''