Press Release Summary = This week, two legal scholars debate Hein v. Freedom from Religion Foundation, a case currently before the Supreme Court involving President Bush's faith-based initiative and the establishment clause of the First Amendment.
Press Release Body = his week, two legal scholars debate Hein v. Freedom from Religion Foundation, a case currently before the Supreme Court involving President Bush's faith-based initiative and the establishment clause of the First Amendment.
Greg Jones, an attorney at the Foundation for Moral Law, argues in "Ending Establishment Clause Purgatory" that the Court's ruling in Flast v. Cohen (1968) unnecessarily muddied the waters, and it has haunted First Amendment jurisprudence ever since. "The Supreme Court could clear up most of the confusion in these cases by simply applying the literal meaning of the establishment clause, rather than the judicial interpretations, to these cases.. A literal interpretation of the establishment clause would radically and positively change the way such disputes are handled in our society by actually keeping them out of the court system altogether."
But law professor Steven K. Green of Willamette University disagrees. In "The Immune Presidency?" Green takes issue with Jones's reasoning: "The problem with this argument is that it grossly overstates the federalism aspect to the establishment clause. That the members of the first Congress viewed the Bill of Rights as restricting federal power vis-à-vis the states is not profound; to claim that the framers intended the establishment clause to protect the ability of states to maintain religious establishments is a perversion of history."
Jones then responds in "The Hein Case: A Rejoinder to Steven Green": "Green may not like many of President Bush's policies. He may not like the idea of funding faith-based social programs with taxpayer dollars. He may not like spinach. However, simply disliking something does not confer a right to waltz into a courtroom to challenge these things as unconstitutional."
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