Ken Blackwell: The Supreme Court Giveth, the Supreme Court Taketh Away


ACRU Staff


July 7, 2007

This column originally appeared on on July 16, 2007

The Supreme Court teeters on a knife’s edge regarding lawsuits against faith expression in the public square. So, conservatives better redouble their efforts to restore a court faithful to our Founders’ vision, or lose all that has been gained in recent decisions after the 2008 presidential sweepstakes.

At the end of its term, the Supreme Court signaled that it is evenly split on a key matter regarding religion. It stopped a liberal advance against religious liberty in the public square, but also refused to end a legal rule that is used by the Left to attack religious liberty.

You can’t sue someone in federal court for giving you a dirty look — you must have “standing” to sue. Basically, “standing” means you have to show that you were injured by the defendant, and also that a federal court can fix it.

There are tight limits on standing. The Supreme Court has long held that being a taxpayer doesn’t give you standing to sue the government just because you don’t like how they’re spending your money; that’s not a “concrete” injury. You can’t sue to stop policies you oppose just because the government is using your tax money.

That is, unless it’s about religion. In 1968, the liberal Warren Court carved out a narrow rule that if the government spends any money on something that involves faith, a person can be so offended that this creates a mental “injury” for which they can sue. This rule, from Flast v. Cohen, has been used to wound faith-based organizations in federal court ever since its inception. It’s a weapon of choice of the Left to purge the public square of all reference to God.

In the last week of its current term, the Supreme Court tried to have the Wisdom of Solomon in splitting the baby of Flast in two. In doing so they showed that this is no longer a liberal court, but neither is it a conservative one.

In Hein v. Freedom From Religion Foundation, the foundation, a liberal anti-religion group, tried to use the Flast rule to have standing to sue the White House Office of Faith-Based Initiatives. The Court held 5-4, four conservatives plus the moderate Justice Kennedy, that Flast only applies to congressional budget items, and not to discretionary executive branch spending. But it was also clear that 5-4, four liberals plus Mr. Kennedy, that Flast would not be overruled.

Liberals wailed that not extending Flast undermines the separation of church and state, and said the Supreme Court has been taken over by the Right. For its own sake, the Right better not believe that.

Conservatives should consider Hein both a victory and a missed opportunity. The fact that Flast was not expanded means what would have been a whole new line of attack by the Left against churches and ministries has been stopped. But the fact that Flast was not overturned means that all the current attacks will continue until such a time when one more conservative justice is confirmed to the Supreme Court.

Hein shows that conservatives have gotten halfway to the Court they desire, but are most definitely not there yet. Conservatives can celebrate, but they need to double their efforts in the 2008 elections.

When a federal appeals court declares the Pledge of Allegiance unconstitutional because of “one nation under God,” most Americans side with the Right to say such hostility from our courts must end.

The Left is now fuming over the Supreme Court. If they are energized to change the Court while the Right engages in self-congratulations, thinking it has won and can therefore relax, then the Left will win the White House in 2008.

If that happens, people of faith will see that all the talk from Senators Clinton, Obama, and Edwards about respecting religion is nothing but empty rhetoric. Their nominees to the Supreme Court will extend and expand Flast, as well as the other recent legal doctrines that are hostile to faith.

While these presidential hopefuls promise to advance religious liberty and values, they also vow to appoint Supreme Court justices that will extinguish the last remnants of faith and traditional values from the public square.

Champions of religious liberties need to wake up to this clear choice, and keep it in mind on the morning of November 4, 2008.



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