Court hears YLS case

Yale Law School students watched their work come to fruition Wednesday as the Supreme Court heard oral arguments in Hein vs. Freedom from Religion Foundation, the first case in which the school’s Supreme Court Advocacy Clinic is serving as a primary representative.

Andrew Pincus ’77, adviser to the clinic and a partner at the Washington, D.C. law firm Mayer, Brown, Rowe, and Maw, delivered yesterday’s oral argument before the court with several law students on hand to watch. Last month, law school students prepared a merits brief in the case, which addresses whether taxpayers can sue the government over the use of federal funds for church-related activities.

In June 2004, the FFRF brought suit against the White House’s Office of Faith-Based and Community Initiatives, claiming that the office was favoring religious organizations over secular groups. After it was denied standing to sue at the district level, the FFRF appealed to the 7th Circuit Court, which overturned the lower court’s decision. Wednesday’s oral arguments were the result of the government’s decision to appeal the 7th Circuit’s verdict to the Supreme Court.

Much of yesterday’s argument was centered around the precedent established in Flast vs. Cohen (1968), which recognized taxpayers’ legal standing in suits arising from alleged Establishment Clause violations. The government, represented by Solicitor General Paul Clement, argued that Flast did not apply to the executive order that created the Office of Faith-Based and Community Initiatives.

“What Flast makes clear is that you can challenge a congressional statue that is a taxing and spending statute,” Clement said during his oral argument.

Clement said taxpayers only have standing when Congress appropriates money to support private organizations. He also voiced the government’s concern that granting the FFRF standing to sue would unleash a flood of litigation.

Pincus countered that allowing the executive “free rein to exercise discretion with respect to spending” would threaten the religious freedoms of taxpayers.

Law students who attended the hearing spoke highly of the experience. Paul Hughes LAW ’08 called the arguments “absolutely fascinating” and said he enjoyed seeing Pincus “bring life to our brief.”

Hughes also said the oral arguments, in which the justices frequently interrupt the lawyers with questions, demonstrated the importance of tailoring arguments to specific justices.

“You need to predict how they’re going to perceive an issue,” he said.

Dan Barker, co-president of the FFRF, said both sides made compelling presentations. Barker said that while he disagreed completely with Clement’s points, the solicitor general came off as “very polished.”

“He’s the right man for the job,” Barker said. “He was articulate and sharp, although he had a little bit of a tendency to get thrown off-guard.”

Barker said Pincus “came out swinging,” keeping the arguments on track and avoiding being caught unprepared by hypothetical situations offered by justices trying to poke holes in the FFRF’s argument. Clement faced similar pressure from the justices, Barker said.

“The Justices were very heavy-handed with both sides,” he said, “They started off fiercely challenging the government’s position.”

A decision on the case is not expected until the end of the court’s term in May or June. Richard Katskee LAW ‘96, assistant legal director of Americans United for Separation of Church and State, which filed an amicus brief in the case, said he expects a split decision from the court.

Officials at the Solicitor General’s office declined to speculate about the outcome of the case.

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