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June 25, 2007

The Hein Decision: FFRF Sues Over Bush’s Offices of Faith-based Initiatives (June 25, 2007)

Hein v. FFRF. In June 2004, the Freedom From Religion Foundation filed the first lawsuit to challenge the creation of the White House Office of Faith-based and Community Initiatives, as well as eight Cabinet-level “offices of faith-based initiatives.” The Foundation alleged that conferences arranged by the White House office resemble revival meetings, and demonstrate government preference for funding religious social service agencies. The lawsuit alleged that the Departments of Education, Labor, Justice, and Health and Human Services have shown preference in funding religious organizations, and that many intermediary groups receiving federal funding do likewise.

The case is the Freedom From Religion Foundation v. Jim Towney, et al., 04 C 03981, U.S. District Court, Western District of Wisconsin, Judge John Shabaz.

U.S. District Court Judge John C. Shabaz, ruled on Nov. 12, 2004, that taxpayers do not have standing to challenge executive branch officials who engage in constitutionally suspect activities funded by general Congressional budget appropriations. Bush created the faith-based initiative by executive order. Shabaz permitted the rest of the lawsuit to continue, which included the Foundation’s challenge of federal funding of MentorKids USA and to Emory University “to support faith-based community health programs.” (See below)

On March 9, 2005, the Foundation asked the U.S. Court of Appeals for the 7th Circuit to reinstate its legal challenge of the creation of the White House and other federal “faith-based” offices. On Jan. 13, 2006, a 7th Circuit panel, in a 2-1 decision, reinstated the Foundation’s challenge, finding that taxpayers have a right under Art. III of the Constitution to sue over a violation of the First Amendment Establishment Clause, even if Congress did not specifically earmark money for the challenged program or activity.

“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,” wrote Judge Richard A. Posner, joined by Judge Diane P. Wood.

The 11-member panel of the U.S. Court of Appeals for the 7th Circuit in Chicago voted 7-4 not to rehear the question of standing in the Freedom From Religion Foundation’s federal lawsuit challenging creation of federal faith-based offices. This technical victory for the Foundation allowed the lawsuit to continue.

The Administration appealed the Foundation’s right to sue to the highest court. The U.S. Supreme Court, on Dec. 1, 2006, agreed to hear the Bush Administration’s appeal of the reinstatement of taxpayer standing for the Foundation plaintiffs. Oral arguments were held on Feb. 28, 2007. At issue was whether the Foundation’s taxpayer plaintiffs–co-presidents Dan Barker and Annie Laurie Gaylor, along with FFRF president emerita Anne Nicol Gaylor–have standing to sue over the creation of the faith-based offices. The Foundation notes that two of the three Supreme Court cases on the question of taxpayer standing to sue the executive branch over actions which violate the Establishment clause are in its favor. The case is now titled Hein v. Freedom From Religion Foundation.

Read the news release and pdf files of the Foundation’s briefs before both the U.S. 7th Circuit and the U.S. Supreme Court.

The Supreme Court decision came down on June 25, 2007. Although FFRF lost its right to sue the executive branch over the creation of faith-based offices at the White House and Cabinets in Hein v. FFRF, FFRF did win the plurality opinion, as The Los Angeles Times pointed out. FFRF had 4 justices solidly in our camp, whereas the bloc of 5 Roman Catholic judges against us-Roberts, Alito, Scalia, Thomas and Kennedy-was divided. Although Kennedy, the swing vote, defected to the majority on FFRF’s right to sue, he refused to vote to outright overturn the precedent of Flast v. Cohen, which permits taxpayers to sue over Congressional actions which violate the separation of church and state. The Hein decision says federal taxpayers do not have the right to challenge executive branch violations not explicitly authorized by the legislative branch. The unjust decision means our country has a constitutional separation between church and state, but no way to enforce it in this and many other instances. The punchy dissent, written by Justice Souter and signed by Justices Ginsburg, Breyer, and Stevens, noted: “If the Executive could accomplish through the exercise of discretion exactly what Congress cannot do through legislation, Establishment Clause protection would melt away.” The Establishment Clause is in for a rough ride in the Roberts Court.

Original Complaint

Background Information on Hein v. FFRF

Amicus Briefs in Support of FFRF

News Releases

Cert Documents

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Freedom From Religion Foundation