Court Bars Suits Against Faith-Based Initiatives
The Supreme Court today handed President Bush's faith-based initiatives program a victory, ruling that federal taxpayers cannot challenge the constitutionality of the White House's efforts to help religious groups obtain government funding for their social programs.
In a 5-4 decision, the court blocked a lawsuit by a Wisconsin-based group of atheists and agnostics against officials of the Bush administration, including the head of the White House Office of Faith-Based and Community Initiatives.
The court ruled that the suit, by the Freedom From Religion Foundation and three of its taxpaying members, could not go forward because ordinary taxpayers do not have standing to challenge the expenditures at issue. The ruling reversed a 2-1 decision in favor of the foundation by a three-judge panel of the U.S. Court of Appeals for the 7th Circuit in January 2006.
Liberal groups blasted the court's decision in Hein v. Freedom From Religion Foundation as a setback for the First Amendment and a paean to the religious right, while the White House and religious conservatives hailed it as a major triumph for the faith-based initiative.
The foundation had complained that parts of the faith-based initiatives program favored religious groups over secular ones, violating the Establishment Clause of the Constitution's First Amendment, which says in part that "Congress shall make no law respecting an establishment of religion."
In its suit, filed in 2004, the foundation claimed that the faith-based initiatives office, formed by Bush in January 2001 through an executive order, unfairly used taxpayer money to provide an edge to religious groups seeking federal funding, and effectively endorsed "religious belief over non-belief."
The administration argued that the foundation's taxpayer plaintiffs lacked standing to sue because the faith-based initiatives office was not specifically funded by Congress. At issue before the Supreme Court was only the question of whether taxpayers may challenge an executive branch program not created by Congress. The White House official named in the case is Jay F. Hein, who was appointed deputy assistant to the president and director of the faith-based initiatives office in August 2006.
In an opinion joined by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy, Justice Samuel A. Alito Jr. wrote that "the payment of taxes is generally not enough to establish standing to challenge an action taken by the federal government."
Given the size of the federal budget, "it is a complete fiction to argue that an unconstitutional federal expenditure causes an individual federal taxpayer any measurable economic harm," Alito said. "And if every federal taxpayer could sue to challenge any government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus."
He noted that "Congress did not specifically authorize the use of federal funds to pay for the conferences or speeches that the plaintiffs challenged." Rather, those activities were funded from "general Executive Branch appropriations," he wrote.
Alito's opinion stopped short of repudiating a 1968 Supreme Court ruling in Flast v. Cohen, in which the court recognized a narrow exception to the general rule against federal taxpayer standing in an Establishment Clause case.
While denouncing today's ruling, groups supporting the separation of church and state took heart that only two justices -- Antonin Scalia and Clarence Thomas -- came out in favor of overturning Flast. This means that most church-state lawsuits can proceed, they said.
Scalia filed an opinion concurring in the judgment, in which Thomas joined. Scalia denounced "utterly meaningless distinctions" between the case at hand and "precedents that have come out differently" under Flast. Arguing that the Flast ruling should be repudiated, he said the court's taxpayer-standing decisions in Establishment Clause cases "are notoriously inconsistent."
In a dissenting opinion, Justice David H. Souter wrote that today's ruling "closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury." He added, "I see no basis for this distinction in either logic or precedent. . . ."
In this case, "there is no dispute that taxpayer money in identifiable amounts is funding conferences, and these are alleged to have the purpose of promoting religion," Souter wrote. "When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injury."
His opinion that the plaintiffs did indeed have standing to sue was joined by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer.
A White House spokeswoman, Emily A. Lawrimore, said the decision "marks a substantial victory for efforts by Americans to more effectively aid our neighbors in need of help." It allows the faith-based initiative to "remain focused on strengthening America's armies of compassion and expanding their good works." Similar efforts by governors and mayors nationwide "can also continue to advance," she said.
"This ruling is a win for the thousands of community and faith-based nonprofits all across the country that have partnered with government at all levels to serve their neighbors" Lawrimore said. "Most importantly, it is a win for the many whose lives have been lifted by the caring touch and compassionate hearts of these organizations."
The American Center for Law and Justice, a conservative public interest law firm founded by evangelist Pat Robertson, welcomed the decision as "a very significant victory."
The ruling "sends a powerful message that atheists and others antagonistic to religion do not get an automatic free pass to bring Establishment Clause lawsuits," Jay Sekulow, the center's chief counsel, said in a statement.
But Ralph G. Neas, president of the liberal advocacy group People for the American Way, said, "It's a bad day for the First Amendment. The Supreme Court just put a big dent in the wall of separation between church and state. . . ."
Neas said in a statement that the ruling "will make it more difficult for citizens whose tax dollars are being unlawfully spent to subsidize religion to bring a complaint in court."
Another group, Americans United for Separation of Church and State, called the decision "disappointing" but said it would not affect most legal challenges to the faith-based initiative.
Today's ruling "applies to only a few situations," said Rev. Barry W. Lynn, the group's executive director. "Most church-state lawsuits, including those that challenge congressional appropriations for faith-based programs, will not be affected."
J. Brent Walker, director of the Baptist Joint Committee for Religious Liberty, said the "good news" in the ruling was that seven justices backed Flast v. Cohen.
"It will be more difficult to challenge discretionary executive branch spending under the Establishment Clause" as a result of today's decision, Walker said. However, the majority's embrace of Flast means that "nothing has changed when it comes to challenging the exercise of Congress's taxing and spending powers to promote religion," he said.
"If spending money you don't have is the height of stupidity, borrowing money to give it away is the height of insanity." -- anon