Friday, January 5, 2007

The BJC and the "wall of separation"

Seventh Day Baptists will soon have to decide whether we want our denomination to remain affiliated with the Baptist Joint Committee. Does the BJC represent our views and our interests?

An upcoming case before the Supreme Court called Hein v. Freedom from Religion Foundation provides a good illustration of the BJC's approach to the "wall of separation" doctrine and the desirability of having judges make the important decisions about it. The "Freedom from Religion Foundation," a Madison Wisconsin group, sued to end government spending for faith-based programs. Almost inevitably, it seems, the BJC supports their position.

The BJC Blog comments on this case which raises issues about how lawsuits can be brought under the Establishment Clause ("Congress shall make no law respecting an establishment of religion"). A 1968 precedent called Flast is at issue. The BJC Blog:
In a new column published at Townhall, ACLJ attorney Jay Sekulow uses the occasion of the upcoming Hein v. Freedom From Religion Foundation Supreme Court hearing to complain about those of us that would resist governmental promotion of religion by keeping church and state separate. A mixture of red herring and straw men with the usual blend of sky-is-falling hyperbole, Sekulow's piece hopes the Court will use the case to strike down the entire practice of granting taxpayer standing in Establishment Clause litigation.
For years, atheists and others who are antagonistic to religion and who want to remove every religious reference from American public life, have had a special privilege in federal court. . . . All they had to do was show that they were taxpayers. In essence, separationists have had a free reign to bring Establishment Clause lawsuits throughout the country just because they were "taxpayers." Simply put, that's unfair.
I know what you're thinking - did he attend a special class to learn to squeeze so many offensive tidbits into a single sentence like that first one? And where do they teach that? But leaving some of them aside for now (like the idea that "separationists" are generally "atheists" and those "antagonistic to religion"), here's the obvious question which is of course not addressed in his column: Does the Establishment Clause have any teeth? And if so, who will police it if taxpayers are not allowed to bring suit? ...
Source: Blog from the Capital: Attorney Sekulow on Enforcing the Establishment Clause: No Fair!

An article at NRO summarizes the significance of Hein from a somewhat different perspective:
Thanks to a 1968 ruling by the Warren Court — Flast v. Cohen — a citizen can challenge a federal faith-based initiative (for example) without asserting anything beyond his status as a federal taxpayer.

In years since, disgruntled church-state separationists have used Flast to challenge federal programs like Title I (education assistance), the Adolescent Family Life Act, the AmeriCorps Education Awards Program, and even the National Motto (“In God We Trust”). By contrast, equally unhappy taxpayers may not challenge federal programs that they allege violate other limits on the power of Congress (like massive social welfare spending).

Controversy over Flast was extant even at the time of the decision, and was given voice in a meticulous dissent by Justice John Marshall Harlan. Granting private citizens the right to object on behalf of the general public when they have not been personally injured treats them like “private attorneys-general” even though these citizens are “indistinguishable from any group selected at random from among the general population, taxpayers and nontaxpayers alike.”

In subsequent cases the Supreme Court has steadfastly refused to extend Flast rights to any area of law outside of the Establishment Clause. And even in that Establishment context the Court has insisted that the challenge be to federal spending, not to government action benefiting a religious group in other ways (such as the transferring of property, not money, to a religious college).

Flast itself, however, while confined to a limited (albeit important) set of applications, still stands. And that means the successors of Madalyn Murray O’Hair still enjoy a unique free pass to federal court to air their grievances.
Source: Walter M. Weber "Supreme Standing" at National Review Online

NRO's Bench Memos answers the BJC: if Hein is decided in a way that overturns Flast, those who will police the Establishment Clause are those who suffer actual injury, along with the legislators who are elected to make policy:
The reason Flast was so essential to the vitality of establishment clause litigation was really twofold. First, ...a traditional hurdle had to be jumped with respect to the standing-to-sue doctrine, which holds that some particularized injury must be suffered by a plaintiff, not a diffuse complaint shared by countless others similarly situated (e.g., as taxpayers). Second, the tight focus on the standing issue in Flast permitted Chief Justice Warren to elide entirely the related issue of whether any and all litigation under the establishment [clause] raises political questions, unfit for adjudication. The standing doctrine and the political questions doctrine are close cousins, both animated by the Constitution's requirement that a real "case or controversy" come to the courts in a form they can resolve, involving actual rights, injuries, and remedies. In Flast, the political questions doctrine is the dog that does not bark (or at most, it whimpers quietly once or twice). Chief Justice Warren assumed throughout his opinion that if only he could shoehorn the litigants into a rewritten version of the standing doctrine, then the issue they raised was certainly not political but was perfectly "justiciable," in the legal term of art. But neither Warren nor anyone else has ever provided a reason for believing that the establishment clause poses anything other than a political question. How, after all, does "Congress shall make no law respecting an establishment of religion" even begin to mark out the boundaries of a concrete individual right that courts can vindicate? No good answer has ever been given to that question. If Flast is overruled, it may also be the beginning of bigger things in reforming our understanding of judicial power under the Constitution.
Source: Bench Memos on National Review Online

The case is, of course important in itself, quite apart from the issue of the Seventh Day Baptist relationship to the BJC. Nevertheless, the case illustrates where the BJC always comes down on church and state issues. It seems unlikely that most Seventh Day Baptists would agree with the position taken by the BJC. If that is true, we should not be affiliated with the BJC.

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