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Church, state and taxpayers

WHEN THE government has violated the Constitution, who is entitled to complain? The Supreme Court will soon cast new light on this question in one of the most intriguing cases in recent years, a suit challenging President Bush's "faith-based initiatives." The legal issue may appear somewhat technical, but the outcome of the case could have broad implications for the power of the executive branch and for the relationship between government and religion.

To be entitled to go to court to challenge a government action, people have to have "standing." In other words, they have to show an actual injury because of the conduct to which they are objecting. If a state requires you to salute the flag, you have standing. If a state requires your neighbor to salute the flag, she has the right to complain; you don't. Similarly, if the federal government detains suspected terrorists in Guantanamo Bay, you aren't entitled to go to court to challenge the detention.

What about taxpayers? Perhaps they suffer an injury if the federal government spends their money on, say, an unlawful surveillance program? Yet the Supreme Court has long said that taxpayers, as such, cannot raise their objections in court. Any objections to unlawful surveillance must come from victims. The court has emphasized that the interest of any individual taxpayer is "shared with millions of others." Unhappy taxpayers may complain to Congress, but not to federal judges.

But in the particular domain of religion, the high court has long made an important exception. If Congress says that taxpayer money will go to a particular church, taxpayers can complain. The reason is simple: The Constitution bans the establishment of a religion by government, and a major point of this ban is to ensure that the power to tax and spend would not be used to favor one religion over another or to support religion in general.

Which brings us to the current controversy. The president's faith-based initiatives aim to eliminate "obstacles to the participation of faith-based . . . organizations in the provision of social services." So the Bush administration has been spending taxpayer money to hold conferences to promote the use of faith-based organizations. Some have challenged these expenditures of federal money and contend that, as taxpayers, they have standing to do so.

Judge Richard Posner, writing for a majority of the Seventh Circuit Court of Appeals, agreed. He acknowledged that earlier court challenges involved specific congressional appropriations for the benefit of private religious groups. By contrast, the challenge here involved the Bush administration's use of general appropriations for its own conferences, not for religious groups. Judge Posner deemed these differences irrelevant. If the Bush administration used a general appropriation to fund the Catholic Church, surely taxpayers could mount a challenge. And if the executive branch used taxpayer money to build its own church or mosque, taxpayers could also complain, even if private religious groups were not receiving a nickel. Or so Judge Posner concluded.

The Bush administration disagrees. Before the Supreme Court, its most ambitious argument is that taxpayers can sue in federal court only when challenging a specific congressional mandate. In its view, the executive branch can use a general appropriation free from judicial review at the behest of taxpayers. This is an alarming argument, and the court should reject it. The executive branch often has broad discretion under general appropriations. If it uses those appropriations to fund religions, taxpayers should be allowed to complain.

The Bush administration also argues that taxpayers should be allowed to complain only if taxpayer money is dispersed outside the government. If the court accepted this argument, taxpayers would still be able to object to any financial support directly to religious institutions. Even so, the administration's argument would render the executive branch immune from taxpayer challenge if it used public money to finance its own operations -- including those that have the purpose and effect of supporting particular religions.

There is a much larger issue in the background here. For a generation, many religious institutions have been working both to reduce restrictions on federal aid to religion and to limit people's standing to challenge those restrictions in court. Justices Clarence Thomas and Antonin Scalia, have accepted their arguments; Chief Justice John Roberts and Justice Samuel Alito may well join them.

People have contended that for some social services, the government can fund a variety of institutions, including religious ones. But it would be most unfortunate if the Supreme Court imposed severe limits on taxpayers' ability to question whether their money is being used in violation of the Constitution.

Cass R. Sunstein, a visiting professor at Harvard Law School, is the author of "Infotopia."