Executive Actions to Promote Religion Ruled Beyond Court Scrutiny

Hein v. FFRF Supreme Court Decision: White House Faith-based Office Can Function as Propaganda Vehicle for Religion"

"Separation of powers is supposed to provide checks and balances. It is quite an oversight to deny oversight!"

The decision is a wake-up call to voters and Congress.

(MADISON, WIS.) The U.S. Supreme Court's 5-4 decision today in Hein v. FFRF granting the executive branch the freedom to violate the separation of church and state without court review spells "imperial presidency," charges the Freedom From Religion Foundation.

"Had Justice O'Connor remained on the court, as she was when we filed this lawsuit, we are confident this would have been a 5-4 decision in our favor. Kennedy has become a swing vote to overturn well-established precedent," said Annie Laurie Gaylor, Foundation co-president and a plaintiff in the lawsuit.

"This means we have a constitutional separation between church and state, but no way to enforce it if the executive branch chooses to violate it with 'discretionary' actions," added Dan Barker, a plaintiff and Foundation co-president. The Foundation is the largest association of atheists and agnostics in the U.S., whose 10,000 members work to keep church and state separate.

The Foundation brought suit in 2004 to challenge the government preference for religion shown by the creation of "faith-based" offices by the White House and federal cabinets by executive order. The suit challenged an internal "faith-based" bureaucracy within the federal government, which exists to promote faith-based funding, shows preference to funding religious over nonreligious groups, and holds conferences for faith-based groups, which has cost taxpayers multimillions, if not billions, of tax dollars.

Significantly, the high court upheld the precedent of Flast v. Cohen (1968), granting federal taxpayers the right to challenge unconstitutional acts of Congress to promote religion. Today's Court interpretation, however, limits Flast v. Cohen to acts of Congress explicitly appropriating money used to promote religion, or funding specific programs which promote religion.

"Today's unjust decision doesn't even allow us into a courtroom to plead our case. But not overturning Flast v. Cohen is the silver lining," said Barker.

The Supreme Court in effect ruled that the Bush Administration may use taxpayer money to support religion without complaint by taxpayers. The decision makes the violation impervious to court review, since no one besides taxpayers could have standing to challenge the appropriations.

"The only remedy left, since individual Americans are being barred from challenging this violation, is for Congress to defund the Office of Faith-based Initiatives at the White House and Cabinets," said Barker. "Let Congress provide the oversight that the Court is refusing to give!"

The Foundation noted that all five voting against the right of federal taxpayers to sue in this case are practicing Roman Catholics. Roman Catholics, numbering five justices, now dominate the court. They are Chief Justice John Roberts and Justices Alito, who wrote the decision, Scalia, Thomas, and Kennedy.

There are "imperial presidency" ramifications to the decision for the country beyond the fact that it will make it impossible to challenge many egregious violations of the Establishment Clause, Gaylor stated. In his concurrence, Justice Kennedy warns of "a real danger of judicial oversight of executive decisions," and "constant intrusion upon the executive realm." She pointed to Alito's wording that we need to keep "courts within certain traditional bounds."

"Separation of powers is supposed to provide checks and balances. It is quite an oversight to deny oversight!" Barker commented.

The decision is a wake-up call to voters and Congress, Gaylor said, noting that voters often overlook the fact that the most important domestic power a U.S. president possesses is to nominate Supreme Court justices.

The punchy and powerful dissent, written by Justice Souter and signed by Justices Ginsburg, Breyer, and Stevens, notes: "If the Executive could accomplish through the exercise of discretion exactly what Congress cannot do through legislation, Establishment Clause protection would melt away."

Souter wrote: "I see no basis for this distinction in either logic or precedent, and respectfully dissent."

Souter quoted James Madison's Memorial and Remonstrance Against Religious Assessments, in which Madison wrote that the government in a free society may not "force a citizen to contribute three pence only of his property for the support of any one establishment" of religion.

Said the Foundation's attorney of counsel Richard Bolton:

"We are disappointed with the Supreme Court's decision, particularly given the Court's long commitment to the principle that taxpayers should not be forced to contribute even three pence to the government's support of religion. The Court's 'three pence' reference in Everson has become one of the Court's most recognized pronouncements. For the Court to now conclude that taxpayers have no such standing to object to the use of their 'three pence' for the support of religion renders the Constitutional prohibition meaningless. The Court's opinion today simply cannot be reconciled with previous precedents. It cannot be squared with a commitment to enforcing the Establishment Clause."

Scalia, in his concurrence signed by Thomas, dismisses taxpayer concerns as mere "Psychic Injury."

"Scalia incorrectly asserts that our injury 'consists of the taxpayer's mental displeasure that money extracted from him is being spent in an unlawful manner,' " said Barker. "It is the U.S. Supreme Court that ought to have been 'displeased' that tax money is being spent unlawfully to promote religion!"

The Supreme Court's action overturned the Seventh Circuit Court of Appeals, which in 2006 ruled that the Foundation and its taxpayers had the right to sue over allegations that the faith-based offices and their conferences have become government "vehicles of religious propaganda."

The case is one of 11 lawsuits the Foundation has taken challenging various parts of the faith-based initiative. So far, the Foundation has won five significant victories in federal court, with four additional ongoing lawsuits. That litigation includes a new federal lawsuit filed last week challenging government appropriations to a church-run "ranch" in North Dakota which exists to bring children "to the Lord Jesus Christ" and which forbids nonChristian worship on its premises. A Foundation case filed in May challenges the controversial and first-of-its-kind creation of a chaplaincy to minister to state workers in Indiana.

Text of Supreme Court's Hein v. FFRF decision (PDF)

Full background on case

The Freedom From Religion Foundation, based in Madison, Wis., is a national association of freethinkers (atheists, agnostics) that has been working since 1978 to keep church and state separate.
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