JUSTICES TO DECIDE IF CITIZENS MAY CHALLENGE WHITE HOUSE'S
RELIGION-BASED INITIATIVE

WASHINGTON -- The Supreme Court agreed Friday to decide whether
private citizens are entitled to go to court to challenge activities
of the White House office in charge of the Bush administration's
religion-based initiative.

A lower court had blocked a lawsuit challenging conferences the White
House office holds for the purpose of teaching religious
organizations how to apply and compete for federal grants. That
constitutional challenge, by a group advocating the strict separation
of church and state, was reinstated by an appeals court; the
administration in turn appealed to the Supreme Court.

The case is one of three appeals the justices added to their calendar
for argument in February. A question in one of the other cases is
whether a public school principal in Juneau, Alaska, violated a
student's free-speech rights by suspending him from school for
displaying, at a public off-campus event, a banner promoting drug use.

Together with a third new case, on whether federal land-management
officials can be sued under the racketeering statute for actions they
take against private landowners, the additions to the court's docket
raised the metabolism of what had begun to look like an unusually
quiet term. It had been just short of a month since the justices
accepted any new cases.

As in the case the justices heard on Wednesday on the
administration's refusal to regulate automobile emissions that
contribute to climate change, the question in the White House case is
the technical one of "standing to sue." And as the argument on
Wednesday demonstrated, standing is a crucially important aspect of
litigation against the government.

In its lawsuit challenging the White House conferences, filed in
Federal District Court in Madison, Wis., in 2004, an organization
called the Freedom From Religion Foundation named as defendants more
than a dozen administration officials who oversaw or participated in
the conferences.

The lawsuit alleged that the officials were using tax dollars in ways
that violated the separation of church and state required by the
Establishment Clause of the First Amendment. For example, the
complaint quoted Rod Paige, then the secretary of education, as
telling the audience at a 2002 White House conference that "we are
here because we have a president, who is true, is a true man of God"
and who wanted to enable "good people" to "act on their spiritual
imperative" by running social service programs with federal financial support.

Judge John C. Shabaz of Federal District Court dismissed the lawsuit
for lack of standing, finding that the officials' activities were not
sufficiently tied to specific Congressional appropriations.
Taxpayers' objections to the use of general appropriations could not
be a basis for standing, he said. The president's Faith-Based and
Community Initiative was created through a series of executive orders
and not by Congress, he noted.

The decision was overturned, and the lawsuit reinstated, in a 2-to-1
ruling by the United States Court of Appeals for the Seventh Circuit,
in Chicago. Writing for the majority, Judge Richard A. Posner said
the distinction cited by Judge Shabaz made no difference. Judge
Posner said the plaintiffs were entitled to challenge the conferences
"as propaganda vehicles for religion," even if they were neither
financed through a specific Congressional appropriation nor made
grants directly to religious groups.

As a general matter, people do not have standing, based solely on
their status as taxpayers, to challenge the expenditure of federal
money. The Supreme Court's precedents have carved out religion cases
as an exception to this general rule.

In its appeal, Hein v. Freedom From Religion Foundation, No. 06-157,
the administration is arguing the exception is a narrow one,
"designed to prevent the specific historic evil of direct legislative
subsidization of religious entities," a definition that the
administration says does not apply to the conferences. For the
federal courts to permit such a lawsuit, its brief asserts, would
upset "the delicate balance of power between the judicial and
executive branches" and open the courthouse door to anyone with a
"generalized grievance."

The student free-speech case the justices accepted, Morse v.
Frederick, No. 06-278, is an appeal by a high school principal,
Deborah Morse, who suspended a student, Joseph Frederick, after an
incident during the Olympic Torch Relay that came through Juneau in
2002. Students were allowed to leave class to watch the parade. Mr.
Frederick and some friends unfurled a 20-foot-long banner proclaiming
"Bong hits 4 Jesus," a reference to smoking marijuana.

When the student refused to take down the banner, claiming a First
Amendment right to display it off school property, the principal
confiscated it and eventually suspended him for 10 days. Mr.
Frederick filed a lawsuit, which the Federal District Court in Juneau
dismissed.

But the United States Court of Appeals for the Ninth Circuit held
that the punishment violated the student's First Amendment rights
and, further, that the principal was liable for damages, in an amount
to be determined by the district court. Ms. Morse's Supreme Court
appeal challenges both the appeals court's interpretation of the
First Amendment and its refusal to shield her from financial
liability through a doctrine known as qualified immunity.

The third new case, Wilkie v. Robbins, No. 06-219, is a government
appeal on behalf of employees of the Bureau of Land Management in a
dispute with a Wyoming landowner who charged them with using tactics
amounting to extortion to get him to grant public access to his
property. The federal appeals court in Denver held that a
racketeering suit based on the extortion charge could proceed.