Supreme Court Faith-based Case Briefed; Oral Arguments Feb. 28


Cartoon by Don Addis. All rights reserved

The Freedom From Religion Foundation on Feb. 2 filed its brief in Hein v. the Freedom From Religion Foundation before the U.S. Supreme Court, which will hold oral arguments on Feb. 28. The case involves the right of federal taxpayers to challenge Bush’s creation of federal faith-based offices.

Filing friend-of-the-court briefs in favor of the Freedom From Religion Foundation are the American Civil Liberties Union, with Americans United for Separation of Church and State, the Baptist Joint Committee for Religious Freedom, People for the American Way Foundation, and the Anti-Defamation League (in a joint brief); the American Humanist Association; the Center for Free Inquiry, the American Jewish Congress, and American Atheists.

An amicus brief was filed for legal historians and law scholars, including: Paul Finkelman, Erwin Chemerinsky, Norman Dorsen, Ronald B. Flowers, Edwin S. Gaustad, Beth Simone Noveck, Edward A. Purcell, Jr., Frank S. Ravitch, Nadine Strossen, Laura Underkuffler, and Samuel L. Webb.

The Freedom From Religion Foundation is being represented pro bono by the Yale Law School Supreme Court Advocacy Clinic (with Giovanna Shay), with attorneys Andrew J. Pincus, Charles A. Rothfeld, and Elizabeth G. Oyer of Mayer, Brown, Rowe & Maw, D.C. The counsel of record is Richard L. Bolton, of Boardman, Suhr, Curry & Field, Madison, Wis.

Pincus, a former assistant solicitor general under the Clinton Administration, will represent the Foundation at the oral arguments.

“We are so grateful to Andy Pincus, the Yale Law School team, and all the other attorneys now working with Rich and the Foundation on our case,” said Annie Laurie Gaylor, Foundation co-president.

Dan Barker, Foundation co-president, added special thanks to “our friends–the organizations who have filed these exceptional friend-of-the-court briefs on our behalf.”

Gaylor, Barker and Anne Gaylor, Foundation president emerita, are the taxpayer plaintiffs in the Foundation’s lawsuit challenging the creation of the offices of faith-based initiatives at the White House and Cabinets. After a district court threw out FFRF’s challenge in 2004, saying taxpayers did not have the right to sue, the 7th U.S. Circuit Court of Appeals, in a ruling last year, reinstated the standing. The Bush Administration appealed the ruling to the U.S. Supreme Court.

“Our brief is strong, and so is our case,” Barker noted, “and we are confident the Foundation has done its best, with the assistance of the Yale Law School team, to argue why precedent should permit us to try this case on its merits.”

The Bush Administration argues that because Congress has not earmarked appropriations directly for the faith-based offices (Bush set them up by executive decree), FFRF’s taxpayer plaintiffs do not have standing to sue over this discretionary use of federal tax dollars to promote religion.

The Foundation brief documents the tens of millions of dollars which have gone to the faith-based offices, often with direct Congressional oversight.

“We firmly believe there should be no ‘faith-based’ office in any government branch,” Gaylor said, “We hope to be able to stop this outrageous and unlawful establishment of religion. These executive orders have opened the floodgates of publicly funded religious proselytizing and preference. Respect for the Establishment Clause needs to be restored, and taxpayers’ right to be free from taxation to support religion needs to be protected.”

Filing amicus briefs on behalf of the government was Roy Moore’s Foundation for Moral Law, Pat Robertson’s American Center for Law and Justice, a Christian legal society, and 11 states headed by Indiana. The ACLJ news release claimed: “For years, atheists and others who are antagoniststic to religion have had special privilege in federal court.”

The March issue will carry full coverage of the briefs and developments.

Freedom From Religion Foundation