Blog from the Capital

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? I suppose Jay would have us believe that government officials will voluntarily avoid promoting religion in their official capacities, or that, even if they don't, it's nothing to worry about.

That they don't self-police matters of religion would seem obvious and demonstrable. And that it's nothing to worry about? I disagree. Many of us who value the separation of church and state, and are religious, believe that using religion for political ends or to glorify the trappings of the state is demeaning to the high calling of religion; that the promotion of religion by government is a necessarily exclusive act, an exclusion that is not simply "offensive" (like when your mother says you look like you gained weight) but a violation of constitutional rights; and that when the religious freedom rights of some of us are violated, those of all of us are threatened.

The point is not to "remove every religious reference from American public life" - who says such things? The purpose is to have a legal mechanism to prevent the government from promoting religion. Obviously we have disagreements about what constitutes "promoting religion" but that's what makes it interesting to discuss. Still, we can't even ask the question if no challenge is allowed. The Court has granted standing to taxpayers in such cases for one simple reason: because in many instances it's the only way to enforce the Establishment Clause.