Court Insulates Executive Branch Violations

The U.S. Supreme Court’s widely-condemned 5-4 decision on June 25 in Hein v. the Freedom From Religion Foundation–granting the executive branch the freedom to violate the separation of church and state without citizen challenge or court review–spells imperial presidency,” charges the Foundation.

The Foundation brought suit in 2004 to challenge the government preference for religion shown by the creation of “faith-based” offices in the White House and federal cabinets by executive order. President Emerita Anne Nicol Gaylor and Foundation co-presidents Dan Barker and Annie Laurie Gaylor served as the federal taxpayer plaintiffs.

The suit challenged the internal “faith-based” bureaucracy within the federal government, which has spent into the multimillions to promote faith-based funding, shows preference for funding religious over nonreligious groups, and holds conferences for faith-based groups that the media have compared to revival meetings.

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. “Swing voter” Justice Kennedy made clear he will not vote to overturn Flast, but he did sign onto a decision that arbitrarily limits Flast.

The Supreme Court in effect ruled that the Bush Administration may use unearmarked taxpayer money to support religion without complaint by taxpayers. No one besides taxpayers could have standing to challenge these particular appropriations.

“The decision means we have a constitutional separation between church and state, but no way to enforce it in many instances,” said Gaylor. “They barred the courtroom door.”

“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.

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

All five justices voting against the right of federal taxpayers to sue in the case are practicing Roman Catholics, who now dominate the court. They are: Chief Justice Roberts, Justice Alito, who wrote the decision, and Justices Scalia, Thomas (a convert), and Kennedy.

The “imperial presidency” ramifications could apply to other points of law. In his concurrence, Justice Kennedy warned of “a real danger of judicial oversight of executive decisions,” and “constant intrusion upon the executive realm.” Alito wrote that we need to keep “courts within certain traditional bounds.” Scalia, in his concurrence signed by Thomas, disses taxpayer concerns as mere “Psychic Injury,” and urged that Flast be overturned.

“Separation of powers is supposed to provide checks and balances. It is quite an oversight to deny oversight,” Barker commented.

The punchy 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:

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

On June 26, the Los Angeles Times editorialized (“Faith and Taxes”) against the Hein decision:

“For nearly 40 years, the court has recognized that Americans may file lawsuits to block the government from improperly spending taxpayer money on behalf of religion.

“. . . two generations’ worth of common sense went by the wayside as the court, in a mere plurality opinion, allowed taxpayers to challenge such spending if it is done by Congress but barred them from seeking redress if it is the president who authorizes the money.” The Times pointed out: “The largest group of justices speaking with one voice actually was in dissent.”

The New York Times (“Three Bad Rulings,” June 26, 2007) likewise editorialized:

“The controlling opinion by Justice Samuel Alito offers a cockeyed reading of precedent and flimsy distinctions between executive branch initiatives and Congressionally authorized spending to deny private citizens standing to sue. That permits the White House to escape accountability when it improperly spends tax money for religious purposes.”

The New York Times veteran court reporter Linda Greenhouse, in a major analysis of the Court swing votes, found that in the 68 cases the court decided by signed opinions, Justice Kennedy dissented only twice.

Limiting the ability of plaintiffs to bring or appeal lawsuits was such a pronounced theme of the court this session that Yale Law School Professor Judith Resnik proposed that the term be nicknamed “the year they closed the courts.”

Forward, the liberal Jewish weekly, which printed an editorial, “Blind Justice,” wrote:

“In effect, the court said, you can complain if you don’t like the way Congress voted, but if the president decides to pull an end-run around Congress, you’re out of luck.”

Robyn Blumner, the “out” atheist columnist with the Saint Petersburg Times, wrote the most eloquent condemnation of the Hein v. FFRF decision in her column on July 1:

“The court in 2007 has shut the courthouse door with a slam.

“[The Foundation] suit could have put all the unconstitutional activities of the administration’s faith-based agencies under a microscope. But first the litigants had to get past the Bush-packed U.S. Supreme Court. Something they could not do.

“The 5-4 ruling with the majority consisting of the conservatives on the court, including Bush’s two appointees, will help insulate Bush’s faith-based agenda from legitimate legal challenge.”

Noted Gaylor: “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.”

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 case is one of 11 lawsuits the Foundation has taken challenging various parts of the faith-based initiative, with five significant victories in federal court, and the rest ongoing lawsuits.

That litigation includes a new federal lawsuit filed in June 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.

Freedom From Religion Foundation