Supreme Court Accepts Hein v. Freedom From Religion Foundation

Right to Sue over White House’s “Propaganda Vehicle for Religion”

(MADISON, WIS.) The U.S. Supreme Court will hear a lawsuit filed by the Freedom From Religion Foundation challenging the government preference for religion shown by the creation of the White House Office of Faith-based Initiatives. The Supreme Court has agreed to consider the Bush Administration’s claim that it can use taxpayer money to support religion without complaint by taxpayers.

The high court on Dec. 1 accepted the Bush Administration’s attempt to stop the Freedom From Religion Foundation’s taxpayer lawsuit, challenging the White House Office of Faith-based Initiatives.

The Foundation, along with its three taxpayer plaintiffs–Dan Barker, Annie Laurie Gaylor, and Anne Nicol Gaylor–filed suit in 2004, challenging the faith-based office at the White House and at several Cabinets. A federal judge dismissed the challenge, saying that Barker and the Gaylors did not have standing to sue over something the executive office did with general appropriations, if Congress had not designated those actions.

The Seventh Circuit Court of Appeals earlier this year reinstated the lawsuit, holding that tax money raised by Congress, which then goes to executive officials, cannot be used to support religion in violation of the Establishment Clause. The Bush Administration appealed the Foundation’s victory to the Supreme Court.

“We believe that the Court of Appeals was correct in its decision,” said Dan Barker, Foundation co-president. “We welcome the Supreme Court’s review to eliminate any doubt. If in fact Congressional appropriations can be used by the Administration in disregard of the Establishment Clause, then Congress and the American public should know that.

“If we were to be denied standing, the court would be saying no citizen has the right to challenge such violations, and that executive-branch violations are not subject to court review.”

Foundation co-president Annie Laurie Gaylor noted there is some confusion about the lawsuit. It does not challenge the entire “faith-based initiative,” she said, because that initiative has been created in such a way that one general challenge is not possible.

Nor does the question before the Supreme Court deal with the merits of the lawsuit. At question is simply whether taxpayers have the right to challenge the White House faith-based office and its religious activities. Its main action has been hosting faith-based conferences for the benefit of religious groups seeking funding that, in some instances, have been compared to “revivals.”

The standing question centers on three Supreme Court precedents, two in the Foundation’s favor:

Flast v. Cohen (1968) permitted a taxpayer challenge of federal assistance to religious schools. The court ruled that challenges could be heard that question the use of “the taxing and spending power . . . to favor one religion over another or to support religion in general.”

Bowen v. Kendrick (1988) also upheld taxpayers’ standing to challenge grants by a federal agency to religious institutions. The court ruled that taxpayers must simply show that Congressional taxing and spending were necessary for the violation to occur.

In a third case, Valley Forge Christian College v. Americans United for Separation of Church & State (1982), the Supreme Court denied standing of taxpayers to sue over transfer of an army hospital to a religious group. This was the case cited as prevailing by the lower court judge who threw out the Foundation’s federal lawsuit.

Judge Posner of the 7th Circuit, in his decision reinstating the lawsuit, wrote:

“The present case is governed by Kendrick. The taxpayers here are complaining about the use of money appropriated by Congress under Art. I, Sec. 8, to fund conferences that various executive-branch agencies hold to promote President Bush’s ‘Faith-Based and Community Initiatives.’ This is a program that the President has created by a series of executive orders.”

“. . . since the program itself is challenged as unconstitutional, the fact that it was funded out of general rather than earmarked appropriations–that it was an executive rather than a Congressional program–does not deprive taxpayers of standing to challenge it,” Posner concluded.

Posner wrote that it must be left to judges to decide whether the initiative and conference amount to “propaganda vehicles for religion.”

The case is one of nine lawsuits the Foundation has taken challenging various parts of the faith-based initiative. So far, the Foundation has won five significant victories in federal court, with four additional ongoing lawsuits, including major challenges of the infusion of faith and religion into the Department of Veteran Affairs, and at the Federal Bureau of Prisons. The Foundation is also awaiting judgment in its federal challenge of a 24/7 bible-based residential program at a prison in New Mexico.

Freedom From Religion Foundation

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