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Court bars suit on faith-based plan

Bush initiative can continue

WASHINGTON -- A divided Supreme Court yesterday stopped an atheist group's lawsuit against President Bush's faith-based initiative, ruling that the plaintiffs do not have standing in the case and thus enabling Bush to continue a program he created by executive order without congressional approval.

The decision was made on a day when the high court showed its increasingly conservative tilt, approving restrictions on student speech, loosening limits on corporate- and union-paid advertising close to Election Day, and siding with developers in an environmental suit.

All four cases were decided by 5 -to- 4 votes, with both of Bush's picks -- Chief Justice John G. Roberts Jr., who replaced the late William Rehnquist, and Justice Samuel Alito, who was confirmed after Sandra Day O'Connor retired -- siding with the majority. Rehnquist was a solid conservative, while O'Connor was widely viewed as a centrist swing vote.

The decisions show that "President Bush got exactly what he hoped for, a court substantially further to the right," said Tom Goldstein, a Harvard Law School lecturer on Supreme Court litigation who has also argued cases before the high court. If O'Connor were still on the court, he said, all four cases might have been decided differently.

The faith-based case is particularly important, Goldstein said, because it protects Bush's programs from legal challenges and indicates that the court will be "less concerned about keeping church and state separate, so later decisions will be more sympathetic to government's cooperating with religious institutions."

The plaintiffs in the case, including taxpayers from the Freedom From Religion Foundation, had argued that the funding of the White House Office of Faith-Based and Community Initiatives, violated the established separation of church and state, putting the government in the position of steering hundreds of millions of taxpayer dollars to groups with strong religious affiliations. The plaintiffs argued that Bush was spending taxpayer funds to hold conferences at which religious groups were urged to apply for federal grants.

But the Supreme Court, while not ruling directly on the First Amendment church-state issue, found that the taxpayers who sued the government can not do so simply because they pay taxes.

Writing for the majority, Alito said the federal budget is so big "it is a complete fiction to argue that an unconstitutional federal expenditure causes an individual federal taxpayer any measurable economic harm. And if every federal taxpayer could sue to challenge any government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus."

Alito noted that the Supreme Court had previously made an exception under which taxpayers could sue if Congress appropriates funds in a way that violates the separation of church and state. But in this case, Alito wrote, the faith-based initiative funds were "paid for out of general Executive Branch appropriations" and therefore were not directly funded by Congress.

In a dissenting opinion, Justice David Souter wrote that the initiative uses taxpayer funds for conferences at which faith-based groups are urged to apply for government grants.

"There is no dispute that taxpayer money in identifiable amounts is funding conferences, and these are alleged to have the purpose of promoting religion," Souter wrote. "When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injury."

Souter noted that the issue "has deep historical roots going back to the ideal of religious liberty" espoused in the writings of James Madison, who wrote, "Memorial and Remonstrance Against Religious Assessments."

Souter reminded the court that Madison wrote that a free society may not "force a citizen to contribute three pence only of his property for the support of any one establishment" of religion.

In October, The Globe published a series of articles on the faith-based initiative that found that between fiscal 2001 and 2005, the United States awarded $1.7 billion to 159 faith-based groups for work overseas, none of which was being directly monitored for church-state separation compliance. Some secular groups that did not receive the grants criticized several conditions attached to the expenditures on grounds that they were designed to favor religious organizations.

Bush explained that he created the White House office on faith-based initiatives after Congress refused to pass the legislation. "I got a little frustrated in Washington because I couldn't get the bill passed," Bush said in March 2004. "Congress wouldn't act, so I signed an executive order -- that means I did it on my own."

Bush hailed the court decision, calling it "a substantial victory for efforts by Americans to more effectively aid our neighbors in need of help. The faith-based and community initiative can remain focused on strengthening America's armies of compassion and expanding their good works."

But Annie Laurie Gaylor, a plaintiff in the case and co president of the Freedom From Religion Foundation, said the court's ruling has prevented a legal examination of the larger issue of church-state relations.

In the other narrowly decided cases, the Supreme Court ruled that a Wisconsin anti abortion group should have been allowed to run ads before Election Day, thus undercutting a restriction in a landmark campaign finance bill, and Alaskan officials had the right to ban a student's banner that said "Bong Hits 4 Jesus" on grounds that it suggested support of drug abuse. The court also sided with developers in a case regarding the Endangered Species Act.

Globe Correspondent Kevin Baron contributed to this report.

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