Speaking at a White House conference on the “faith-based” initiative in October of 2002, Rod Paige, then U.S. secretary of education, offered up a testimony about his boss’s personal religious commitment.
“Now, President Bush does this because he knows first-hand the power of faith to change lives, from the inside out,” Paige told the assembled religious leaders in Washington, D.C.
“And the reason he knows this,” Paige continued, “is because faith changed his life.... So the reason we’re all here today is not because some politician needs to knock off one more thing on his ‘to do’ list. We are here because we have a president who is true, is a true man of God – a man who prays every day. And I think together, we can really make a difference for mankind, for Americans, we can make America a better place.”
Halfway across the country in Madison, Wisc., officials at the Freedom From Religion Foundation (FFRF) sat and stewed.
Foundation members had grown weary of hearing public officials delivering sermons and promising religious groups access to the public purse. Over the next few years, it only increased as the White House sponsored a series of regional conferences around the country to urge religious groups to apply for tax aid.
In June of 2004, FFRF officials decided to attack the Bush faith-based initiative by filing a federal lawsuit challenging the creation of various faith-based offices at federal agencies and targeting the conferences.
Two and half years later, the case has landed at the Supreme Court – in a curtailed form. On Feb. 28, the high court will hear oral arguments in Hein v. Freedom From Religion Foundation, but the justices won’t be deliberating the constitutionality of the faith-based initiative. Rather, they will decide whether FFRF has the right to sue in the first place.
The Foundation’s legal offensive was a risky move. Never approved by Congress, the initiative was put into place primarily through executive orders issued by President George W. Bush and through regulatory changes affecting various cabinet-level departments and lower federal offices.
Given this indirect method of implementation, it was unclear whether a traditional church-state separation lawsuit could be used to block the centers and conferences promoting the initiative.
Nevertheless, the Foundation decided to try. On June 17, 2004, the group filed a lawsuit listing three of its top officers as plaintiffs. The four-page legal complaint asserted that the creation of faith-based offices violated the First Amendment and that these offices spawned further violations by holding a series of events aimed at helping religious groups win tax support.
The events, the Foundation asserted in its legal complaint, favored religion by singling out faith-based groups as “particularly worthy of federal funding because of their religious orientation.” It also argued that the federal government had sent “messages to non-adherents of religious belief that they are outsiders, not full members of the political community, and the defendants send an accompanying message to adherents of religious belief that they are insiders, favored members of the political community.”
Two federal courts have considered the case in the more than two years since it was filed, yet neither has dealt with the core issue it presents: Did these actions by government officials violate the separation of church and state? Instead, the case has become bogged down over the issue of “standing” – the right to sue.
A federal court first tossed the case out, ruling that the Foundation lacks the legal right to challenge the faith-based offices and their conferences, since these actions were never directly authorized by Congress. A federal appeals court later disagreed, ruling 2-1 that the Foundation can proceed with its case.
FFRF Co-President Annie Laurie Gaylor said the 8,000-member organization first got interested in the question after becoming convinced that the White House was improperly favoring religion.
“The White House Faith-Based Office was conducting symposia that were designed to further religious propaganda,” Gaylor told Church & State. “We knew there was no way to get at it unless we sued over it.”
The Foundation, created in 1978 to advocate for the rights of non-religious people and promote church-state separation, had tangled with the faith-based initiative in court before – and won some victories. In January of 2002, a federal court, responding to a Foundation lawsuit, struck down tax funding of a fundamentalist social-service agency in Milwaukee called Faith Works.
In 2004, the FFRF won a lawsuit blocking federal subsidies for a nursing program infused with religion that was operating in rural Montana. The organization has several other challenges to faith-based programs under way.
The challenge to departments at the federal level was broader and more ambitious. It also required the Foundation to wander into the legal thicket of issues related to the right to sue.
After a temporary setback at U.S. district court, the Foundation saw the case spring back to life on appeal.
Writing for the 7th U.S. Circuit Court of Appeals, Judge Richard A. Posner stated flatly, “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.”
Posner, who was appointed to the appellate court by President Ronald Reagan in 1981, is generally regarded as one of the leading intellectuals on the federal bench. He has written widely about various topics, authoring more than 30 books. Deliberating over the FFRF’s plea, Posner argued that denying taxpayer standing in these cases would give cabinet-level officials too much power to violate constitutional provisions.
“Suppose the Secretary of Homeland Security, who has unearmarked funds in his budget, decided to build a mosque and pay an Imam a salary to preach in it because the Secretary believed that federal financial assistance to Islam would reduce the likelihood of Islamist terrorism in the United States…,” wrote Posner. “The line proposed by the government (no standing to challenge the conferences, standing to challenge the grants) would be artificial because there is so much that executive officials could do to promote religion in ways forbidden by the establishment clause...without making outright grants to religious organizations.”
Americans United has followed the case since its inception, and its legal team is filing a friend-of-the-court brief arguing that taxpayers should have the right to sue.
The day the Supreme Court announced it would hear the legal tussle, AU issued a press statement expressing support for the FFRF’s position.
“This is a relatively narrow question,” observed Barry W. Lynn, AU executive director, “but it’s quite important. It’s essential that the justices uphold the principle that taxpayers can go to court when their money is being used to advance religion.”
Americans United has grappled with the issue of standing before. In 1982, an AU lawsuit challenging the federal government’s decision to give surplus land to a religious group reached the Supreme Court. That case also dealt with standing.
Unfortunately, AU lost in a close 5-4 ruling. William H. Rehnquist, then an associate justice, wrote the lead opinion in Valley Forge Christian College v. Americans United for Separation of Church and State, asserting that AU did not have the legal right to sue since no congressional appropriation was involved.
Rehnquist, an appointee of President Richard M. Nixon who was put on the high court to roll back some of the rights granted under previous courts, acknowledged AU’s support for church-state separation but wrote that the organization was unable to show any other injury.
Rehnquist’s crabbed view would make it virtually impossible to challenge many government subsidies to religion. AU has long argued that all citizens are harmed when public resources are diverted to religion. Rehnquist would have erected hurdles so high that taxpayers could not scale them and defend their rights.
Rehnquist attacked the concept of the church-state wall in an infamous dissent to a 1985 school prayer case. His views on legal standing were equally dangerous. In effect, the Rehnquist view, if expanded, amounts to a backdoor attack on the wall of separation by denying citizens the right to defend that principle in court in many cases.
A prominent Religious Right group has eagerly sided with the Rehnquist perspective. Instead of defending the rights of all Americans to access the courts, TV preacher Pat Robertson’s American Center for Law and Justice sent a hysterical fund-raising appeal last month calling on the Supreme Court to use the Hein case as a vehicle to take an even more radical step and freeze out taxpayer plaintiffs entirely.
Robertson attorney Jay Sekulow called the idea of taxpayer-initiated lawsuits “incredibly unfair ... and it should be unlawful!”
Generally speaking, taxpayers do not have an automatic right to challenge every form of government spending they find offensive. They must first demonstrate that the spending being challenged presents some type of specific constitutional harm.
But in 1968, the Supreme Court relaxed that standard when it comes to cases challenging the establishment of religion. In Flast v. Cohen, the high court ruled that a group of taxpayers had the right to challenge portions of a federal education law that diverted public funds to religious schools. The decision by Chief Justice Earl Warren found that taxpayers must meet two criteria: the legislation being challenged must directly involve the expenditure of tax funds, and the body spending the money must be exceeding a specific limitation on its power.
Right-wing groups see overturning Flast as a way to shut down many church-state cases.
“This case could finally close a loophole in the law through which radical secularists have been driving entire convoys of trucks,” Kevin Hasson, founder and president of the Becket Fund for Religious Liberty, told the First Amendment Legal Center last year. “Paying taxes should not give every malcontent with a gripe against religion a license to sue the government. We hope this case will mean the end of this federal court plague of a ‘jurisprudence of hurt feelings.’”
That extreme position is echoed by former Alabama Chief Justice Roy Moore’s Foundation for Moral Law. In a friend-of-the-court brief, Moore’s group asserts that the provision in the First Amendment barring laws “respecting an establishment of religion” protects no individual rights – a position that has been adopted by Supreme Court Justice Clarence Thomas. Were this view to prevail, citizens would be powerless to protect themselves from government-imposed religion.
A joint brief was also filed by the attorneys general of Alabama, Colorado, Florida, Indiana, Michigan, Nevada, North Dakota, Oklahoma, South Carolina, Texas, Virginia and Washington. The brief takes a hard line, urging the court to overturn Flast and deny taxpayer standing.
But not every conservative group agrees. The Christian Legal Society weighed in, opposing the FFRF’s position, but arguing that the Flast standard of taxpayer standing should be retained.
The Bush administration, while opposing the Foundation’s right to sue, does not seem willing to go as far as Sekulow and Moore would like. In one court brief urging the justices to take the case and overrule the 7th Circuit, U.S. Solicitor General Paul D. Clement wrote, “While the [First Amendment] recognizes a distinct constitutional injury to taxpayers in having their ‘three pence’ used to pay a minister’s salary, there is no such constitutional tradition of a cognizable individualized injury arising from the payment of government officials’ salaries when they make speeches or attend meetings, even with religious content.”
Gaylor, on the other hand, is staking a lot on taxpayer standing, noting that while the plaintiffs are all Foundation staffers, they assert the right to sue as taxpayers. Aside from Gaylor, plaintiffs include her husband Dan Barker and mother Anne Gaylor.
“If anybody has taxpayer standing we do,” Gaylor said.
The challenge for the Foundation may be in proving that the funds used to pay for these “faith-based” conferences and centers are really congressional appropriations. Congress allocates the budget for federal departments but allows some discretionary funds. It is this money that has been used to pay for many of the regional events promoting the initiative. Thus, the money is one step removed from a direct congressional appropriation.
The source of the funds could be a pivotal question. As legal writer Tony Mauro put it, “The Bush administration countered that the plaintiffs had no standing because, in essence, creating the centers was one step removed from action by Congress to spend taxpayer funds. It claimed that even under the Flast v. Cohen exception, taxpayers could challenge only congressional appropriations that directly benefit religion. But the government said creation of the centers was accomplished by executive agency action, not by a specific congressional appropriation.”
In its original legal complaint, the Foundation noted that many of the targeted government agencies funded organizations with a clear sectarian perspective.
Reads the complaint, “The preferences for and endorsements of faith-based organizations by the defendants, as preferred providers of social services funded with federal taxpayer appropriations, belie the claim that defendants are trying to level the playing field for access to federal funds by faith-based organizations.”
In legal documents, the Foundation cited the 2002 speech by Paige. Aside from praising Bush’s religiosity, the former education secretary also lauded faith-based funding as a vehicle to enable “good people” to “act on their spiritual imperative.”
Americans United, which has several lawsuits challenging faith-based funding under way, says the new legal challenge is extremely important. Not only will the lawsuit resolve important issues about the right to sue, it could also give some indication of the views of the Supreme Court’s newest justices, John Roberts and Samuel Alito.
No church-state cases have reached the high court since Roberts and Alito were seated. The Foundation’s lawsuit, while not directly dealing with separation of church and state, may give an indication as to how sympathetic Roberts and Alito will be to those seeking to use the courts to protect their rights.
Attorneys at Americans United say the principle raised by the Foundation is important and should be upheld by the Supreme Court.
Ayesha N. Khan, AU’s legal director, noted that the organization is currently litigating several challenges to the faith-based initiative. In 2006, for example, the organization won a major victory against tax funding of Charles W. Colson’s fundamentalist Christian prison program in Iowa.
“The Supreme Court should not place obstacles before the courthouse door,” Khan said. “Americans believe that the government should not be in the business of promoting religion, and historically they have turned to the courts to curb flagrant abuses of church-state separation. Rights can become meaningless if it is too difficult to vindicate them in court.”