The U.S. Supreme Court on Dec. 1 accepted the Bush Administration’s appeal to stop the Freedom From Religion Foundation’s taxpayer lawsuit challenging the White House Office of Faith-based Initiatives. The high court has agreed to consider the Administration’s claim that it can use taxpayer money to support religion without challenge by taxpayers.
The Foundation, along with its three taxpayer plaintiffs–Dan Barker, Annie Laurie Gaylor, and Anne Nicol Gaylor—filed suit in 2004, challenging the faith-based office at the White House and at several Cabinets. Bush set up the offices by executive fiat, using general appropriations which had not been specifically authorized for that purpose by Congress.
A federal judge dismissed the challenge, saying that Barker and the Gaylors did not have standing to sue over something the executive office did without Congressional direction. The Seventh Circuit Court of Appeals earlier this year reinstated the lawsuit, holding that tax money raised by Congress, which then goes to executive officials, cannot be used to support religion in violation of the Establishment Clause. The Bush Administration then appealed the Foundation’s victory to the Supreme Court.
We believe that the Court of Appeals was correct in its decision,” said Dan Barker, Foundation co-president. “We welcome the Supreme Court’s review to eliminate any doubt. These Congressional appropriations cannot be misused by the Administration in disregard of the Establishment Clause.”
“If we were to be denied standing, the court would be saying no citizen has the right to challenge such violations. Such executive-branch violations would be beyond court review,” added Foundation co-president Annie Laurie Gaylor.
The challenge revolves around the narrow but significant question of whether it is constitutional to create federal faith-based offices. These offices, the Foundation contends, have largely acted as “vehicles for religious propaganda,” in holding conferences around the country, sometimes compared to “revival meetings,” designed to favor and promote religion.
The question before the Supreme Court does not deal with the merits of the lawsuit, only whether taxpayers have the right to challenge faith-based offices and their religious activities.
The standing question centers on three Supreme Court precedents, two in the Foundation’s favor:
Flast v. Cohen (1968) permitted a taxpayer challenge of federal assistance to religious schools. The court ruled that challenges could be heard that question the use of “the taxing and spending power . . . to favor one religion over another or to support religion in general.”
Bowen v. Kendrick (1988) also upheld taxpayers’ standing to challenge grants by a federal agency to religious institutions. The court ruled that taxpayers must simply show that Congressional taxing and spending were necessary for the violation to occur.
In a third case, Valley Forge Christian College v. Americans United for Separation of Church & State (1982), the Supreme Court denied standing of taxpayers to sue over transfer of an army hospital to a religious group.
Judge Posner of the 7th Circuit, in his decision reinstating the Foundation’s lawsuit, wrote:
“The present case is governed by Kendrick. The taxpayers here are complaining about the use of money appropriated by Congress under Art. I, Sec. 8, to fund conferences that various executive-branch agencies hold to promote President Bush’s ‘Faith-Based and Community Initiatives.’ “
Posner wrote that it must be left to judges to decide whether the initiative and conference amount to “propaganda vehicles for religion.”
Posner compared the issue to a theoretical decision by the Secretary of Homeland Security to use unearmarked funds in his budget to build a mosque and pay an imam a salary to preach in it.
“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,” Posner concluded.
The case is one of nine 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, including major challenges of the infusion of faith and religion into the Department of Veteran Affairs and at the Federal Bureau of Prisons. The Foundation is also awaiting judgment in its federal challenge of a 24/7 bible-based residential program at a prison in New Mexico.
