Imperial Presidency Can Now Promote Religion

Statement from the Freedom From Religion Foundation

The Supreme Court has barred the courtroom door.

By Dan Barker and Annie Laurie Gaylor
Freedom From Religion Foundation

Fasten your seat belts, kids. The stacked Supreme Court is careening to the right, and taking our Constitution along for a very bumpy ride. The Court on Monday ruled the president may do what Congress cannot–use federal tax dollars to promote religion without chance of taxpayer challenge or court review.

James Madison famously wrote that government in a free society may not force a citizen to contribute even three pence” in support of any establishment of religion. Yet mega taxes have been poured into creating an internal federal “faith-based” bureaucracy that the founding fathers had explicitly precluded in adopting a secular Constitution.

We are the federal taxpayers–the “ordinary taxpayers” as media have put it, joined by FFRF founder Anne Gaylor–who took this challenge, and were denied standing. It’s hard not to take that personally! But every American should take this diminution of our rights and the Constitution personally. All of us have been legally disenfranchised.

The Supreme Court has barred the courtroom door. Why deny us the chance to make our case? Clearly, the majority in Hein v. FFRF seeks not to uphold the Constitution but to muzzle criticism, and to insulate the Executive Branch from public accountability or judicial scrutiny.

We challenged the creation of “faith-based” offices in the White House and federal cabinets because a secular government should have only a secular agenda. These offices show egregious favoritism toward the funding of faith-based groups over secular groups. Expensive government conferences are offered to churches and religious entities, even including the proverbial free lunch (compliments of taxpayers). “Faith” groups are taken by the hand, and are encouraged and shown how to apply for federal funding simply because they are church groups. Media have compared the faith-based conferences to “revival meetings,” since they often include prayer, testimonials, and gospel choirs.

The Court’s Roman Catholic majority ruled we could sue only if Congress had explicitly authorized the faith-based offices, but not if the same violation is authorized by the executive branch! The brief by the Foundation, and the impressive friend-of-the-court briefs, documented the Congressional complicity in funding these faith-based offices for the past six years. In his dissent, Justice Souter observed there is no “logic or precedent” in the false distinction drawn by the Hein majority.

The White House may now use taxpayer money to promote religion without complaint by citizens and without scrutiny by the courts. Talk about an imperial presidency!

This decision leads to an Alice in Wonderlandscape where the Executive Branch is free to violate the Establishment Clause, as long as it takes care to fund its establishments of religion through “discretionary” general appropriations. The decision is an invitation to violate and subvert the Constitution.

The Supreme Court majority did stop short of overturning Flast v. Cohen, the 1968 case codifying the right of federal taxpayers to sue over Congressional appropriations which unite church and state. Only two, Justices Scalia and Thomas, wanted to go that far. Kennedy’s concurrence, while maddening for the deference which it bestows on the Executive Branch, made it clear he will not entertain an overturn of the Flastprecedent. But as The New York Times’ veteran court reporter, Linda Greenhouse, points out, Alito, in writing the decision, used dismissive terminology about Flast which foreshadows future attacks against it.

Justice Stewart, in his concurring opinion in the original Flast case, wisely noted that “every taxpayer can claim a personal constitutional right not to be taxed for the support of a religious institution.”

That, in fact, is the basis upon which our country was partly founded! The Pilgrims, as all school children learn, came here to escape the tyranny of being taxed and tithed to support a state-established religion in which they disbelieved.

Consider this ruling a wake-up call: the most important domestic power the president possesses is to nominate justices. Voters must choose presidents who will select nominees who will defend, not sabotage liberty, and elect members of the U.S. Senate who will provide oversight, not a rubber stamp.

Congress, which has formally refused to authorize these faith-based offices, must now act to formally defund them. That is the only remedy left for this grotesque miscarriage of justice. Let Congress pick up the ball that the Supreme Court has so irresponsibly fumbled.

The Freedom From Religion Foundation, a 10,000-member strong national association of freethinkers, will continue its vital work to challenge the general faith-based initiative and other First Amendment violations. But with this court decision, we’ve moved from “One Nation, Indivisible,” to “one indignation, under God.”

Take Action!

Members of the Freedom From Religion Foundation are encouraged to make a fuss! Compose a prompt letter to local newspapers or other media decrying this decision. (Follow your newspaper’s guidelines to improve your chance of publication.) Place pressure on Congress to end the “faith-based initiative,” including the internal, multimillion dollar federal bureaucracy which the Freedom From Religion Foundation’s lawsuit tried to halt.

Freedom From Religion Foundation

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