The U.S. Court of Appeals for the 7th Circuit, in a Jan. 13 decision, handed a significant victory to the Freedom From Religion Foundation in its quest to challenge the creation of the White House Office of Faith-based Initiatives.
A panel of the 7th Circuit voted 2-1 that taxpayers (the Foundation's plaintiffs) have a right under Art. III of the Constitution to sue over a violation of the First Amendment Establishment Clause, even though Congress had not specifically earmarked 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 Posner, joined by Judge Wood. Judge Ripple dissented.
The ruling not only reinstates the Foundation's landmark lawsuit against the creation of faith-based offices at the White House and at several Cabinet agencies, but is "a significant victory for the right of citizens to challenge unconstitutional actions by the executive branch," said Annie Laurie Gaylor, Foundation co-president.
"Had we been denied standing, the court would be saying no citizen has the right to sue over executive branch-instigated activities that violate the separation of church and state.
"The Foundation now has a chance to show that 'the faith-based initiative' is an egregiously unconstitutional misuse of taxpayer funds to favor and promote religion," she added.
The Foundation originally filed its history-making lawsuit in June 2004. In November 2004, District Judge John Shabaz, western district of Wisconsin, threw out the Foundation's standing to sue over the creation of the White House and other Cabinet-level "faith-based offices," but permitted another aspect of the lawsuit to continue. Shabaz went on to order the Department of Health and Human Services to suspend funding of the pervasively-sectarian MentorKids USA group in Phoenix, Ariz., in January 2005. It is the first time a judge has ordered revocation of federal funding by a Cabinet of a faith-based group.
The Foundation filed its appeal on the standing question in February 2005.
The appeal centered around three Supreme Court precedents regarding taxpayer standing to sue over Establishment Clause violations conducted with general appropriations.
Two of the cases approved taxpayer standing. 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.
But in Valley Forge Christian College v. Americans United for Separation of Church & State (1982), the Supreme Court had denied standing of taxpayers to sue over transfer of an army hospital to a religious group.
Posner, in his decision, elaborated on the meaning of Flast: "By forbidding Congress to establish a national church, the Establishment Clause places a specific limitation on Congressional appropriations, since the essence of an established religion is government financial support."
"The present case," Posner wrote, "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 judges must decide whether the initiative and conferences amount to "propaganda vehicles for religion."
The Freedom From Religion Foundation, which brought and won the first adjudicated challenge of faith-based funding in 2002, has since won four other solid legal victories against faith-based funding in the federal courts--more than any other civil liberties group.
The case is Freedom From Religion Foundation v. Elaine Chao, et. al, No. 05-1130. Individual plaintiffs are Foundation officers Dan Barker and Annie Laurie Gaylor, and FFRF founder Anne Nicol Gaylor.