Pelavin: Hein Decision essentially negates the relationship between tax money and freedom of conscience
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June 25 2007 | Washington DC – In response to today’s rulings from the United States Supreme Court, Mark J. Pelavin, Associate Director of the Religious Action Center of Reform Judaism, issued the following statement:
Today the other shoe dropped at the Supreme Court.
As the Court prepared to conclude its 2006-07 session, it issued a series of decisions; notably 5-4 decisions in two critical cases. Justice Alito authored the majority opinion in both cases, and both rulings are contrary to the values of the Reform Jewish Movement.
In a much-anticipated case concerning the ability to challenge the Administration’s “Faith Based Initiative” and other governmental funding of religious institutions (Hein v. Freedom From Religion Foundation) the Court greatly limited the ability of taxpayers to challenge such funding. The decision hinged on the fact that there was no direct Congressional appropriation at issue; rather, that the funding flowed from a broad grant of authority to the Executive Branch. As Justice Souter wrote for the dissenters (himself, Stevens, Ginsburg, and Breyer), “the controlling opinion closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury. I see no basis for this distinction in either logic or precedent…” The controlling opinion essentially negates the relationship between tax money and freedom of conscience, so long as we maintain the charade that Executive spending has no effect on citizens’ rights.
It is worth noting that it could have been worse. The Court did not explicitly overturn the 40 year old precedent (Flast v. Cohen, 1968), which allows tax payers to challenge government spending under the Establishment Clause of the First Amendment, despite the fact that two Justices (Scalia and Thomas) would have done so. Lamentable as though today's decision was, it is important to understand that it did not address the fundamental constitutionality of the program; that remains for another day.
The Court also ruled, again 5-4, that a federal agency that is required by law to take a specific action does not have to follow the conflicting mandate of the Endangered Species Act. The decision in National Association of Home Builders v. Defenders of Wildlife, also written by Justice Alito, said that the endangered species law takes a back seat to the clean water law when it comes to the EPA handing authority to a state to issue water pollution permits. Aside from the obviously arbitrary hierarchy of laws imposed by the Court’s reading, in the face of incontrovertible evidence of the damage we have done to our earth, it is our responsibility to protect strong environmental legislation with broad jurisdiction in order to preserve God’s natural creation for our children and grandchildren.
Finally, the Court, in a narrowly-crafted opinion, limited the free speech rights of students in Morse et al. v Frederick. This case effectively created an exemption to student free speech rights when the speech concerns, as the Court viewed it, “celebration of illegal activity” rather than political speech or argument. I would note with concern, that limits on First Amendment speech may pose dangers to the bedrock rights that guarantee the preservation of a pluralistic society in which those who espouse diverse, and even conflicting, views and beliefs may pursue them without fear of the tyranny of the majority and/or governmental interference.
The Religious Action Center of Reform Judaism is the Washington office of the Union for Reform Judaism, whose more than 900 congregations across North America encompass 1.5 million Reform Jews, and the Central Conference of American Rabbis, whose membership includes more than 1800 Reform rabbis