admice

What is the procedure to fight say CHurch and state separation issues, etc. Does it depend on what initiates the issue? I have read about Bush's executive orders - how does one contest those? When do civil suits come into play? When does it have to go thru legislators? Trying to learn the flow here. Anyone know?

Philosoft

First, start with a membership to Americans United For the Separation of Church & State. The ACLU is worthwhile, but AU has a more specific focus. Second, are you asking what things you can do yourself? Are you a lawer?

Toto

The legal procedures are tricky - that's why people go to law school for 3 years, and why AU and ACLU have lawyers on staff.

Unless, of course, you are a member of Congress, and can call hearings or vote on legislation.

Both the ACLU and AU are good organizations, although each has its limitations. The ACLU has broader concerns than church state separation, and sometimes has other priorities; AU, on the other hand, is devoted to its own vision of "pro-religion" separation. AU lobbied for the RLUIPA and would probably support some sort of faith based funding, probably along Lieberman's lines. However, AU is so effective overall that I support it in spite of that issue. (Both the ACLU and AU came out in favor of Newdow on the pledge issue.)

The ACLU and AU both have local chapters that you could get involved with. There are other organizations that fight the Religious Right - People for the American Way comes to mind.

beastmaster

To initiate a lawsuit, you *personally* must have suffered injury or damage to one or more of your rights. The injury must have been caused by the law you would like to challenge (i.e., overturning the law would cease your injury).

You cannot sue just because you are a taxpayer or concerned citizen.

Organizations like the ACLU must first find a plaintiff -- someone who has been personally injured by a law. They then sue on that person's behalf.

ohwilleke

beastmaster is generally correct.

The main way a lawsuit can be brought is if someone actually goes out and mixes church and state and the person bringing the lawsuit can claim actual harm from the mixing.

The two big doctrines are "case and controversy", which means that you can't bring lawsuits about things that might happen, but haven't yet., and "standing" which means you must actually have been harmed.

Most cases are clear from a "case and contoversy" context. Jefferson Public School District puts crucifixes in every class an campus. There is a real case of controversy. The hard "case and controversy" cases are "chilling effect" cases. If you are in the newspaper business and someone passes a law that says that only the Jewish version of the Lord's prayer may be put in print, you could bring a "chilling effect" lawsuit without actually breaking the law and being prosecuted. But, "chilling effect" lawsuits require very particular kinds of facts and are harder to win than a true violation case, because in a "chilling effect" lawsuit the government that instituted the questionable policy or law is free to interpret it in a way favorable to it being found constitutional (actually, some chilling effect lawsuits are brought precisely to get that kind of judicial admission from a government).

"Standing" doctrine asks, not if a case can be brought at all, but if you are the right person to bring it. To take a non-constitutional example, I can sue someone who negligently caused a car accident, if I was just a witness. Only someone who was hurt in the accident can sue. In a school case, usually only a student or a parent could bring suit about a school district policy (the pledge of allegience, for example). In a case of, for example, allegedly improper prayer meetings held by the head of an executive branch department as part of staff meetings, only the managers who report to the violating boss would probably have standing to complain.

Taxpayers can bring suit over constitutional violations in their capacity as taxpayers, but only in a very narrow class of cases involving public spending for religious purposes as the primary violation.

(Incidentally, neither the "case and controversy" requirement or the "standing" requirement are present in every country. Many countries have "constitutional courts" that have the power to consider more abstract issues, and have public officials (often an otherwise ceremonial President, an Attorney General, and heads of political parties) who can sue on behalf of the public interest even if there is no individual with standing to sue. I don't, however, necessarily favor these systems, as a specific factual basis is often important to a fair judicial ruling, and because most countries with "constitutional courts" also often adopt the rule that unconstitutionality can not be contested in any other court, while in the U.S., even the lowliest limited jurisdiction case judge can consider constutional issues and often does.)

Another approach to address issues in the court is through the regulation adoptoin process. Basically, when an agency passes new regulations (sometimes called Presidential decrees or executive orders) it has to publish the proposed regulations, allow time for comments, and then adopt those regulations, which can be then challenged in court on the grounds that the agency didn't have the authority to issue those regulations (the agency makes what is called a "Record of Decision" or ROD, which is in some cases used to allow appeal directly to an appeals court instead of a trial court). For example, if the current administration were to adopt a faith based initiatives law, one way to attack the policy would be to challenge the regulations that impliment it as not justified by the statute authorizing the regulations when that statute is interpreted in light of the requirements of the Constitution.

Still, standing and case and controversy remain important problems for many symbolic kinds of cases. For example, you cannot have a state constitution provision harming atheists declared unconstitutional, unless some government official decides to enforce it. Until then, the law is "presumptively constitutional" until challenged in court. (Government officials can, however, take the intermediate step of having an attorney general make a formal legal opinion that the provision is unconstitutional and does not have to be followed, which can influence real world policies, but is not reviewable as it is just an opnion and not a court decision).

GaryP

The Freedom From Religion Foundation had this victory in the courts last January;


January 9, 2002

The Freedom From Religion Foundation's legal challenge of direct, unrestricted taxpayer funding of a faith-based social service agency has resulted in the first court decision in the nation against public funding of faith-based initiatives.

In a decision announced this week, U.S. District Judge Barbara Crabb, for the Western District of Wisconsin, found that a public "grant to Faith Works constitutes unrestricted, direct funding of an organization that engages in religious indoctrination" and that the "funding stream violates the establishment clause."


http://www.ffrf.org/news/fwvictory.html

admice

Thanks all for the info. Yes will see if there's and ACLU in my area. Will check out AU, not sure if I like them.

Thanks again for the info