Highlights from the Oral Arguments February 28, 2007

Highlights from the Oral Arguments

From this morning’s oral arguments (PDF) for Hein v Freedom From Religion Foundation. These are just parts that stuck out to me, not necessarily the most important parts of the arguments.

Dialogue between Justice Antonin Scalia and Paul Clement, Solicitor General from the Department of Justice (government’s lawyer):

Justice Scalia: So you’re saying if the Government, the executive, or the Congress, if the congressional statute authorizes the giving of money for the billing of a church, that’s bad; but if it authorizes — it makes a general authorization to the President — no. If the congressional statute says the Government will build a church, that’s okay, because then the money doesn’t go outside the Government?

General Clement: Well, importantly, Justice Scalia, it’s not a matter of it being okay. It’s a question of whether it logically –

Scalia: Well, as far as standing is concerned.

Clement: Yeah, it logically gives rise to taxpayer standing. So — and I think there is

Scalia: What is your answer to that? That in fact it’s bad in the first situation and okay in the second, as far as standing is concerned?

Clement: What I would say is in either case it’s bad. I would say that there is taxpayer standing to challenge the disbursement of funds outside the Government but not your horrible hypothetical about an internal Government church.

Scalia: There is no standing for the internal Government church?

Clement: Not taxpayer standing. Anybody who’s subjected to the mass at the church probably has standing as a matter of direct –

Scalia: No, we’re not forcing anybody in at gunpoint. We’re just building a Government church.

Clement: With respect, Justice Scalia, nobody forced Van Orden to walk by the Ten Commandments display in Texas at gunpoint, and yet this Court said that he could bring an establishment clause challenge.

The Court didn’t seem to understand what the case was even about. And Clement had a hard time explaining it:

Justice Breyer: I don’t understand. I’m back — I really — I’m surprised. And it’s probably my fault. But that I thought — I started where Justice Scalia was with his first question. I thought this had something to do with whether Congress passed a statute or the President acted on his own. But listening to you now I think, I can’t decide — I think you have a different argument.

Suppose — I’m just trying to understand. Suppose that Congress passes a law and it says it’s a very nice thing to commemorate the Pilgrims by building a Government church at Plymouth Rock, where we will have the regular worship in the Puritan religion. Now can a taxpayer from California in your view challenge that?

General Clement: I would say that that’s a much harder case than this –

Breyer: Yes, but –

Clement: — but I say no. I would say no, no.

Breyer: Why not? Because I thought Flast made clear that they could.

Clement: No. What Flast makes clear is that you can challenge a congressional statute that is a taxing and spending statute. And I think to understand the circumstances in which you should give rise to taxpayer standing, you need two things: You need a congressional statute that is an exercise of the taxing and spending authority; but then you need the money to go outside the Government.
And that’s precisely what –

Breyer: Then you go to a private group?

Clement: Right. Because there’s, again, there’s two ways –

Breyer: So you’re saying that if the Government has the most amazing, let’s — I’m trying to think of something more amazing that what I just thought of.


Breyer: All over America, they build churches dedicated to one religion; and Congress passes a statute and says in every city, town, and hamlet, we are going to have a minister, a Government minister, a Government church, and dedicated to the proposition that this particular sect is the true sect; and they pass a statute like that, nobody could challenge it?

Clement: Horrible hypothetical.

And then it hit the fan:

Justice Alito: General Clement, are you -are arguing that these lines that you’re drawing make a lot of sense in an abstract sense? Or are you just arguing that this is the best that can be done that this is the best that can be done within the body of precedent that the Court has handed down in this area?

Clement: The latter, Justice Alito.


Clement: And I appreciate — I appreciate the question.

Scalia: Why didn’t you say so?


Scalia: I — I’ve been trying to make sense out of what you’re saying.


Clement: Well, and I’ve been trying to make sense out of this Court’s precedents.


Andrew Pincus (FFRF’s lawyer) was trying to make the case that there was a difference in money specifically used for religious purposes and money that was used for general purposes but had a religious component. And Scalia let him have it:

Scalia: But the problem here is the claim, the gravamen here is the Government is doing stuff with money that’s been taxed from me that it shouldn’t do. I fail to see how it makes any difference to the people who care so passionately about this, as Justice Breyer suggests, whether it’s just an incidental expenditure or whether it’s part of a targeted program.

We don’t do that in any other area of constitutional law. If someone has been subjected to an unreasonable search and seizure, we don’t say well, you know, it was just incidental. Yeah, we know you feel badly about it, but this was just an incidental search and seizure, and you don’t have standing.

It doesn’t make any sense, given the gravamen that you’re directing this law against, to establish such a standard.

Roberts lay in on Pincus as well:

Roberts: But that shows how totally manipulable your incidental test is. You just have to phrase your claim so that it covers whatever expenditure –

Pincus: But, Your Honor –

Roberts: — is offending you. It’s not — incidental doesn’t protect you from frivolous or insignificant claims in any way.


On a totally different (and amusing) note, look at the index at the end of the arguments. Notice the frequency of the word “God.” Then look at the frequency of the term “bagel.”

[tags]atheist, atheism, Hein v Freedom From Religion Foundation, FFRF, God, Supreme Court, Antonin Scalia, Paul Clement, Department of Justice, Congress, President, Van Orden, Ten Commandments, Texas, church, Plymouth Rock, Puritan, religion, California, Flast, Samuel Alito, Andrew Pincus, John Roberts, bagel[/tags]

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