The Establishment Clause

The US Supreme Court just heard arguments in Hein v. Freedom From Religion Foundation (transcript available at http://www.supremecourtus.gov/oral_arguments/argument_transcripts/06-157.pdf). The case relates to whether individual taxpayers have standing to challenge executive expenditure which may contravene the Establishment Clause.

Some thoughts-

1. As noted on http://balkin.blogspot.com/ the entire line of precedents relating to this area seem to be horribly muddled, a fact admitted by both the Solicitor General and some of the Justices as is evident from the transcript of oral argument. It is strange that counsel for the Respondents wished to persevere despite some Judges clearly indicating that they thought that the precedents make no sense. An admission by both sides that this was the situation and an attempt to rationalise this particular branch of law may have been neater.

2. Justice Scalia came up with the interesting hypothetical of the President who addresses a religious gathering etc. and whether standing would be available to challenge expenditure made on the Secret Service and Air Force One etc. The answer of course is that the Constitution cannot require individuals appointed to public office to give up all individual beliefs and forsake the right to espouse those beliefs. All that it forbids is the official endorsement of these beliefs as decisive state ideology. Thus if the president were to say that he wants his fellow Americans to be good Christians because he is a good Christian he would not run afoul of the Establishment Clause. On the other hand if, speaking for the Government he were to imply that all other religions were heretical, a challenge could probably be mounted. Of course, in practice it is rather difficult to distinguish when the President acts in his personal capacity and his official capacity. I would err on the side of individual rights and allow challenges to all acts which hint at the State endorsement of personal beliefs.

3. In India, Art. 27 specifies that no person shall be compelled to pay taxes which are specifically appropriated for promoting or meeting the expenses of any religious denomination. In a Hein type situation where a committee is set up which decides, inter alia, to fund a particular religious denomination, there could be some debate as to whether there was specific appropriation. Reading Art. 27 and Art. 28 together it is clear that the intention is to prevent any State endorsement of a particular religion or religious belief. I would read the specific appropriation requirement as being satisfied as long as it could be shown that money was taken from the public coffers and allocated for the ends prohibited by Art. 27.

4. The breezy and informal style of argument in SCOTUS continues to startle and amuse me. It's hard to think of a single indian lawyer who would tell a Supreme Court judge that his dreamt up fact situation was "a horrible hypothetical".

P.S. I think 'God Save this Hon'ble Court' and 'One Nation under God' would be held violative of the Indian Constitution.