Chip: If they don't have standing to complain about the "speeches" at the conferences, I'm confused about what's left of their conference-based claims. As I read the plaintiffs' brief, the entire complaint about the conferences was that the speakers there were lauding faith-intensive social services to the exclusion of non-faith-intensive services. Take away the speeches, and what's left to complain about?
-------------- Original message ---------------------- From: "Lupu" <[EMAIL PROTECTED]> > Bob Tuttle and I have just posted on the Roundtable website a piece > about the 7th Circuit's taxpayer standing opinion in FFRF v. Towey. > The posting is here: > > http://www.religionandsocialpolicy.org/legal/legal_update_display.cf > m?id=41. > > Comments and criticisms always welcome. > > Chip > > > On 13 Jan 2006 at 22:09, Marty Lederman wrote: > > > > > A divided panel of the U.S. Court of Appeals for the Seventh Circuit > > issued a somewhat interesting opinion today affirming taxpayer > > standing for a FFRF suit challenging conferences organized by the > > Administration's Centers for Community and Faith-Based Initiatives: > > > > http://www.ca7.uscourts.gov/tmp/PJ17J3CP.pdf > > > > I must confess that the intracacies of the taxpayer standing doctrine > > make my eyes glaze over, and my head hurt; but for those of you who > > are interested in such things, the opinions appear to be a treasure > > trove . . . > > > > I have a question, however, about an incidental discussion in Posner's > > majority opinion about the merits of the EC claim: > > > > FFRF alleges that CFBI Conferences "are designed to promote religious > > community organizations over secular ones." In other words, the > > complaint apparently is not about CFBI social-service funding > > decisions, but about the conferences themselves, and the allegation > > that at such conferences the CFBI Centers "promote" religious > > organizations over nonreligious organizations. Here's the curious > > passage in the Posner opinion: > > The complaintall we have to go on at this stageis wordy, vague, > > and in places frivolous, as where it insinuates that the President > > is violating the establishment clause by tout[ing] the allegedly > > unique capacity of faith-based organizations to provide effective > > social services as if the President were not entitled to express > > his opinion about such organizations. But the complaint is not > > entirely frivolous, for it portrays the conferences organized by > > the various Centers as propaganda vehicles for religion, and > > should this be proved one could not dismiss the possibility that > > the defendants are violating the establishment clause, because it > > has been interpreted to require that the government be neutral > > between religion and irreligion as well as between sects. > > What distinction is Posner trying to draw here? If a presidentially > > created program holds conferences at which government officials claim > > that faith-based social services are preferable (or more effective) > > than non-faith-based services, that's an Establishment Clause > > violation -- but if the President of the United States, in his > > official capacity, says exactly the same thing, it's not an EC > > violation? > > > > Why? > > > > For a couple of reasons, the distinction can't be that one form of > > religious "propaganda" requires an additional expenditure of funds > > whereas the other doesn't. First, whereas such a distinction might > > make a difference for standing purposes, the substantiverequirement of > > neutrality that Posner identifies is not dependent on expenditures. > > Second, and perhaps more to the point, in each of the two cases the > > religious "propaganda" itself does not entail any additional > > expenditure of funds: Presumably, the President's speech would > > proceed, at the same cost, even if he did not include the statement > > about the unique capacity of faith-based organizations; but similarly, > > the CFBI conference presumably would be run at the same cost even if > > it treated faith-based and non-fait-based organizations equally, > > touting the value of all social-service organizations without regard > > to religion. > > > > So what's the distinction on which Posner is relying? I imagine there > > are many on this list who think that both cases are EC violations; and > > many others who may think that neither is. But does anyone agree that > > a pro-religion conference would violate the EC but that a pro-religion > > official presidential speech would not (or, I suppose, vice versa)? > > > > > > Ira C. ("Chip") Lupu > F. Elwood & Eleanor Davis Professor of Law > The George Washington University Law School > 2000 H St., NW > Washington D.C 20052 > > (202) 994-7053 > > [EMAIL PROTECTED] > [EMAIL PROTECTED] > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. > Anyone can subscribe to the list and read messages that are posted; people > can > read the Web archives; and list members can (rightly or wrongly) forward the > messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
