MONDAY WAS a rocky day for the 1st Amendment, and the Supreme Court did not limit its mischief to the speech clause. A smaller, more technical case threatens to undermine the amendment's protection of religion from government intrusion, in this case by limiting the ways taxpayers may challenge government spending on faith.
For nearly 40 years, the court has recognized that Americans may file lawsuits to block the government from improperly spending taxpayer money on behalf of religion. Even when those litigants can show no specific monetary damage as a result, the court has recognized their standing to bring such suits. That sensible position, first articulated by Chief Justice Earl Warren in 1968, lets all taxpayers help enforce the establishment clause, which prohibits the government from aiding the establishment of religion.
On Monday, however, two generations' worth of common sense went by the wayside as the court, in a mere plurality opinion, allowed taxpayers to challenge such spending if it is done by Congress but barred them from seeking redress if it is the president who authorizes the money. The court's reasoning was satisfying to no one and resulted in a strange fragmentation of the justices, with the chief leading two other colleagues in the main opinion, joined in concurrence by the bench's two most conservative members. The largest group of justices speaking with one voice actually was in dissent, in which Justices David H. Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer all joined.
It was, however, Justice Antonin Scalia who most powerfully illuminated the illogic of permitting standing in some cases while blocking it in others, a condition that, as he noted, "invites demonstrably absurd results." Taxpayers could sue, for instance, if Congress passed a bill to give money to a church school, but if Congress appropriated the same amount of money to the president knowing that he would spend it on the same school, the lawsuit would be barred.
Scalia's pungent observations led him to precisely the wrong conclusion — that all such suits be barred. But his logic is sound in one respect: The same standing rules should apply to litigants in establishment clause cases regardless of which branch spent the money. And that logic, which unites the court's liberals and conservatives, is what is sorely lacking in the opinion of the court.