The 11-member panel of the U.S. Court of Appeals for the 7th Circuit in Chicago in early May voted 7-4 not to rehear the question of standing in the Freedom From Religion Foundation’s federal lawsuit challenging creation of faith-based offices in the White House and at the Cabinet level. This technical victory for the Foundation allows the lawsuit to continue.
However, the court, including the four dissenters, urged the U.S. Supreme Court to tackle the question.
A 3-judge panel had voted 2-1 on January 13 in favor of taxpayer standing to sue over unconstitutional expenditures by the executive office, reinstating the Foundation’s landmark lawsuit against the federal faith-based offices, filed in 2004. The suit was thrown out that year by a federal judge, who ruled the plaintiffs did not have standing to sue as taxpayers.
The 7th Circuit panel overturned that ruling:
Taxpayers have standing to challenge an executive-branch program, alleged to promote religion, that is financed by a Congressional appropriation, even if the program was created entirely within the executive branch, as by presidential executive order,” wrote Judge Richard A. Posner, joined by Judge Diane P. Wood.
The Administration then filed a petition asking the entire panel to rehear the case (known as en banc). A majority on May 3 voted to deny the government’s petition.
The one-paragraph decision, written by Chief Justice Joel M. Flaum, said the issue “can only be resolved by the Supreme Court.” A longer concurrence by Judge Easterbrook said reconsideration by the entire 7th Circuit “is not the right forum.” Easterbrook cited “tension” between three Supreme Court cases on the issue of taxpayer standing to challenge Establishment Clause violations by the Executive Branch, saying the high court needs to resolve it.
The four dissenters who wanted to take (and overturn the 3-judge ruling) likewise agreed the case has the criteria for review by the Supreme Court. Dissenters were: Circuit Judges Kenneth F. Ripple, Daniel A. Manion, Michael S. Kanne and Diane S. Sykes.
“The Administration has been given every encouragement to appeal our case to the U.S. Supreme Court,” said Foundation co-president Annie Laurie Gaylor.
“If we taxpayers don’t have the right to sue the president over setting up faith-based offices to encourage federal funding of sectarian agencies, that means no one does, that there is no remedy in the courts. It would mean that the executive branch is above the law on separation of church and state,” noted Foundation co-president Dan Barker.
The Foundation has won five major victories against the faith-based initiative to date. It has an ongoing federal challenge against a faith-based prison in New Mexico. In April, FFRF filed suit against widespread intermingling of religion and medical care at the Department of Veteran Affairs, and in May it sued the Federal Bureau of Prisons and U.S. Attorney General’s office over faith-based programs. It is also suing the Office of Management and Budget for its system grading federal agencies based on how much money they funnel to religion.
