FFRF Pursues Right to Sue White House “Faith-based” Office

The Freedom From Religion Foundation, a national state/church watchdog group, is asking the U.S. Court of Appeals for the 7th Circuit to reinstate the Foundation’s legal challenge over creation of the White House and other federal faith-based” offices.

The Foundation, which has taken the lead in successful challenges of the “faith-based initiative,” is arguing that executive branch actions are subject to Constitutional dictates and court review.

A federal judge ruled on Nov. 12 that taxpayers do not have standing to challenge executive branch officials who engage in constitutionally suspect activities funded by general Congressional budget appropriations.

U.S. District Court Judge John C. Shabaz, of the Western District of Wisconsin, ruled that the Foundation’s individual plaintiffs–staff members Anne Nicol Gaylor, Dan Barker and Annie Laurie Gaylor–do not have taxpayer standing to sue over the faith-based offices because Congress did not enact the offices. Bush created the faith-based initiative through executive order. In doing so, he used funding provided by general Congressional budget appropriations.

“The dismissal of our standing places the president’s executive action above judicial scrutiny. It denies legal recourse to the taxpayers who are forced to support these unconstitutional programs,” said Annie Laurie Gaylor, co-president of the Foundation.

The lawsuit alleges that the faith-based offices violate the Establishment Clause of the First Amendment by supporting activities endorsing religion, and by granting faith-based organizations “preferred positions as political insiders.”

These activities include the many White House and federally sponsored conferences to recruit faith-based applicants, “at which conferences faith-based organizations are singled out as being particularly worthy of federal funding because of their religious orientation, and the belief in God is extolled as distinguishing the claimed effectiveness of faith-based social services,” the brief states.

Although standing was dismissed over the challenge of the faith-based offices, the undismissed portion of the Foundation’s lawsuit resulted in a landmark court order on Jan. 11.

A court for the first time vacated Cabinet-level funding of a faith-based group. Health and Human Services was ordered by Judge Shabaz to stop funding Mentorkids USA, an exclusively Christian mentoring program in Phoenix. HHS is not appealing the Jan. 11 order to stop public funding of this offshoot of Chuck Colson’s prison ministry, which requires mentors to be Christians, church-goers, and to agree with and sign a mission statement that the bible is inerrant, including in its creation story.

The Foundation’s other court victories against faith-based funding include a federal win in 2002 ending direct funding of a pervasively sectarian group, Faith Works in Milwaukee. This ministry to “bring homeless addicts to Christ” had been endorsed by George W. Bush. The Foundation last October won an order in federal court in Montana ending a “parish nursing” faith-based funding scheme.

The largely intellectual dispute in the appeal concerns Supreme Court precedent over taxpayer standing to challenge Establishment Clause violations. In Flast v. Cohen (1968), the Supreme Court held that taxpayers have the right to sue over alleged statechurch violations involving tax appropriations. A contradictory ruling was handed down in Valley Forge v. Americans United for Separation of Church and State (1982). In the high court’s most recent ruling on the subject, Bowen v. Kendrick (1988), the court found that a taxpayer has the right to challenge the constitutionality of executive expenditure of appropriations–even when use of those funds was at the discretion of the executive branch.

“At government-sponsored events, officials do not have the right to convey the unmistakable message that religion matters to political standing,” contends Foundation attorney Richard L. Bolton in the brief.

The appeals brief was filed on March 9, 2005. A decision is not anticipated before late summer.

The Foundation will be announcing new faith-based legal challenges soon.

Freedom From Religion Foundation