Bush's faith-based program debated in court

WASHINGTON (Reuters) - The U.S. Supreme Court debated on Wednesday whether taxpayers can contest the use of government funds for church-related activities, with examples about presidential travel to address religious groups and bagels served at prayer breakfasts.

The theoretical discussion came in a high-profile case related to the perennial issue of keeping faith out of state matters as mandated by the U.S. Constitution.

The administration was urging the top court to limit the right of taxpayers to sue over government funding of religious activities as a way to derail another larger question over whether President George W. Bush's federal program to funnel federal dollars to religious groups is unconstitutional.

In considering the question, Justice Antonin Scalia asked if a taxpayer could sue over a hypothetical trip by the president on Air Force One to speak to a religious group, with the U.S. government picking up the whole tab, including the cost of fuel and security guards.

"The whole trip is about religion," Scalia said during arguments in the case brought by a Wisconsin group called the Freedom from Religion Foundation and three of its members.

Chief Justice John Roberts made up his own example in questioning the attorney for a group that wants to proceed with its constitutional challenge to Bush's program to help religious groups get federal funds.

"I don't understand under your theory why any taxpayer couldn't sue our marshal for standing up and saying 'God save the United States and this honorable court.' Her salary comes from Congress," Roberts said.

Attorney Andrew Pincus replied that taxpayers could not sue in either example. He said the money must be essential or central to the violation of the separation of church and state.

He responded with his own example.

"If there's a prayer breakfast and the only (government) money that's spent is on the bagels, we don't believe the bagels are the basis for a taxpayer challenge to the prayer breakfast," he said.

In January 2001, soon after he became president, Bush issued an executive order creating the White House Office of Faith-Based and Community Initiatives and similar centers in various federal agencies.

One of the goals Bush set was to help religious and community groups better compete for federal funds to fight poverty, substance abuse and other social problems.

The lawsuit said administration officials violated the Constitution by organizing national and regional conferences at which religious groups received favored treatment over secular groups.

The Supreme Court at this time will rule on when taxpayers can bring such challenges, not on whether the program itself violates church-state separation.

Bush administration lawyer Paul Clement argued that a 1968 Supreme Court precedent allows taxpayer challenges to congressional spending, but not to executive branch actions.

Justice Anthony Kennedy, who often casts the decisive vote on the nine-member court closely divided between conservative and liberal factions, appeared sympathetic to the administration arguments.

"It seems to me unduly intrusive for the court to tell the president that (he) cannot talk to specific groups to see if they have certain talents that the government may use," Kennedy said. "We would be supervising the White House and what it can say, who it can talk to."

A decision in the case is expected by the end of June.