Oral arguments were heard before the U.S. Supreme Court on Feb. 28 in the Freedom From Religion Foundation’s historic challenge of the faith-based offices at the White House and cabinet agencies.
At stake is the right (known as “standing”) of the Foundation’s taxpayer plaintiffs–founder Anne Gaylor and co-presidents Dan Barker and Annie Laurie Gaylor–to sue the government over this establishment of religion by the Executive Branch.
The Supreme Court hearing was a media bonanza, resulting in more than 800 new members joining the Freedom From Religion Foundation in the course of two weeks. The Foundation also fielded supportive inquiries from several thousand individuals!
Pres. Bush, by executive order, first set up the White House Office of Faith-based and Community Initiatives in 2001, nine days after taking office. By the time the Foundation legally challenged the creation of the federal faith-based centers in 2004, they existed in about eight federal agencies. Now there are at least 12 “faith czars” administering faith-based federal centers.
The lawsuit was thrown out of district court for lack of standing. The U.S. 7th Circuit Court of Appeals in Chicago reinstated the trio’s standing in 2006. The Bush Administration is seeking to have the Supreme Court overturn that ruling, to halt the challenge of the constitutionality of the federal faith-based centers, and place it beyond court scrutiny.
The Foundation charges that it is impermissible for the federal government to operate “faith-based” offices, whose purpose is to preferentially facilitate the funding of faith-based social services. Multimillions of taxpayer dollars have been spent to set up a massive federal faith-based bureaucracy.
The administration argues taxpayers have no standing because: 1) the executive branch is insulated from taxpayer challenges, in part because Congress did not specifically mandate the money for the challenged purpose, and 2) because no third parties are receiving funding through the faith-based offices.
The Foundation brief and friend-of-the-court briefs document that in fact Congress was complicit in funding the faith-based offices. The offices themselves do not fund religious groups, but act as cheerleaders for such funding, holding many faith-based conferences, replete with prayer, gospel choirs, and hands-on tutoring in grant-writing. The separate funding of “faith-based groups”–which are often allowed to practice religious hiring discrimination and do not have to take their crosses down when accepting public funds–is now well into multibillions of tax dollars.
Three of the four groups filing briefs in favor of the Bush Administration urged the high court to overturn Flast v. Cohen, a 1968 case granting taxpayers the right to sue over Establishment Clause violations. The administration’s brief to the court hinted that it wished to overturn this right–thereby grinding to a halt a major portion of litigation seeking to end state/church violations. In oral arguments, the solicitor general outright encouraged the court to overturn Flast and argued for the cutoff of virtually any taxpayer challenges of executive office state/church violations.
The Foundation maintains that Flast v. Cohen applies to its challenge, and that the Supreme Court should uphold precedent.
The press generally agreed that the Supreme Court questioning during the oral arguments was “combative” toward both the solicitor general and the Foundation’s attorney, Andy Pincus, of the D.C. firm Mayer, Brown, who argued the Supreme Court leg of the case pro bono. Attorney of record is Richard Bolton, of Madison, Wis., who has won five federal court challenges of the faith-based initiative for the Foundation, with four (including Hein v. FFRF) in the courts.
Hein v. FFRF is predicted to end in a 5-4 vote, with Justice Kennedy likely providing the swing vote. However, Chief Justice John Roberts announced in late February his dislike of close rulings, asserting he will aim for “consensus”–meaning justices will be under intense pressure.
