Standing Down

Supreme Court Narrowly Makes It Harder To Bring Taxpayer Challenges To Bush 'Faith-Based' Crusade

Since President George W. Bush took office, the White House has spent millions of taxpayer dollars promoting the “faith-based” initiative in a series of conferences around the country.

At these events, religious leaders were exhorted to apply for federal funding to provide a variety of social services. Speakers celebrated the role of religion in public life and lauded Bush as a man of deep faith.

As this was going on, federal agencies were ordered to establish “faith-based” offices to promote the initiative. Cabinet officials often praised the plan and made special efforts to reach out to religious leaders.

If all of this sounds inappropriate in a nation where church and state are separate, the Supreme Court has a message for you: Get over it.

Ruling 5-4 June 25, the high court abruptly slammed the courthouse door in the faces of taxpayers who sought to challenge the White House conferences promoting the faith-based initiative and the creation of cabinet-level faith-based offices.

Writing for the majority, Justice Samuel A. Alito Jr. ruled that the Freedom From Religion Foundation (FFRF), a Wisconsin-based organization, has no right to sue over White House promotion of the faith-based initiative because the money came from discretionary funds, not a congressional appropriation.

FFRF, which filed the challenge in June of 2004 on behalf of three of its officers, lost at the first level of federal court but won a reversal at the U.S. 7th Circuit Court of Appeals. The high court’s opinion reverses the appellate panel’s decision.

“[FFRF plaintiffs] do not challenge any specific congressional action or appropriation; nor do they ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional,” wrote Alito. “That is because the expenditures at issue here were not made pursuant to any Act of Congress. Rather, Congress provided general appropriations to the Executive Branch to fund its day-to-day activities. These appropriations did not expressly authorize, direct, or even mention the expenditures of which respondents complain. Those expenditures resulted from executive discretion, not congressional action.”

Americans United, in a press statement, called the Hein ruling “disappointing.”    

“Taxpayers should be allowed to challenge public funding of religion, whether the money is allocated by Congress or the White House,” asserted Americans United Executive Director Barry W. Lynn.

“However,” Lynn added, “it is important to note that this ruling applies to only a few situations. Most church-state lawsuits, including those that challenge congressional appropriations for faith-based programs, will not be affected.”

The case, Hein v. Freedom From Religion Foundation, was not a direct test of the constitutionality of the faith-based initiative. Rather, it questioned whether taxpayers have “standing” – the legal right to sue – over appropriations that further religion emanating from the White House.

It’s a settled matter of law that taxpayers have the right to challenge such appropriations if they come from an act of Congress. The Supreme Court upheld this type of taxpayer standing in a 1968 case called Flast v. Cohen.

Americans United and its allies were concerned that the Supreme Court would use the Hein case as a vehicle to overturn Flast. Had that happened, legal cases directly challenging the faith-based initiative might have been placed in jeopardy.

But as it turned out, only two justices – Antonin Scalia and Clarence Thomas – expressed support for ditching Flast.

Ironically, Scalia agreed that establishing a distinction between taxpayer-funded expenditures that emanate from Congress and from the White House is artificial. But his remedy was to deny taxpayers the right to challenge congressional expenditures as well – a stance that would eviscerate many church-state lawsuits.

With characteristic bluntness, Scalia asserted that Flast is not worthy of judicial respect.

“It is time – it is past time – to call an end,” he wrote. “Flast should be overruled.”

Scalia’s radical view was em­braced by many Religious Right groups, several of which bombarded the high court with legal briefs de­manding that Flast be overturned. At the end of the day, they could not persuade most of the justices.

Alito labeled Scalia’s analysis “wrong” and said there was no reason to overturn Flast.

“Over the years, Flast has been defended by some and criticized by others,” Alito wrote. “But the present case does not require us to reconsider that precedent….We do not extend Flast, but we also do not overrule it. We leave Flast as we found it.”

Alito was cagey enough not to offer a personal opinion on the worthiness of Flast. But in a concurring opinion, Justice Anthony M. Ken­nedy made it clear that he’s not in favor of overturning the landmark ruling.

“In my view the result reached in Flast is correct and should not be called into question,” Kennedy wrote. He went on to express his concern that if taxpayers are permitted to challenge pro-religion actions sponsored by the White House, it could lead to unwarranted judicial meddling in the affairs of the Executive Branch.

“The courts must be reluctant to expand their authority by requiring intrusive and unremitting judicial management of the way the Executive Branch performs its duties,” wrote Kennedy.

Kennedy’s vote, coupled with the votes of the four dissenters – Justices David H. Souter, Ruth Bader Ginsburg, Stephen Breyer and John Paul Stevens – means that a majority favors retaining the idea that taxpayers have the right to challenge legislative appropriations that further religion. This is good news for AU and other groups that seek to challenge faith-based funding.

Writing for the dissenting bloc, Souter assailed the majority’s view that taxpayers can challenge spending that promotes religion at the legislative branch but not the executive branch.

“I see no basis for this distinction,” he said, “in either logic or precedent….”

Souter noted that opposition to tax support for religion stretches back to colonial times and is still with us today. This powerful historical current, he opined, should be respected.

“Here, there is no dispute that taxpayer money in identifiable amounts is funding conferences, and these are alleged to have the purpose of promoting religion,” Souter wrote. “The taxpayers therefore seek not to ‘extend’ Flast, but merely to apply it. When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injury.”

Although the Hein ruling is a blow, it stopped short of the radical revision sought by Religious Right groups. AU Legal Director Ayesha N. Khan said the decision will make AU’s job tougher but not impossible.

“This unfortunate ruling will make it more difficult to challenge some faith-based endeavors,” Khan said. “This decision just underscores how important it is to make wise choices about which cases to bring. With the court so precariously balanced, advocates of church-state separation must be cautious and not to let our hearts overrule our heads.”

Analysts with Americans United and other groups that promote church-state separation also point out that the decision underscores the importance of balance on the Supreme Court. The Hein ruling is an indication that Bush’s appointments – Alito and Chief Justice John G. Roberts – are not likely to be supportive of church-state separation. This is not surprising, since both were vetted by Religious Right organizations.

“Roberts and Alito were unwilling to give the Religious Right all they wanted this time,” said AU’s Lynn, “but they still gave them plenty. The steady erosion of our rights and the ability to defend them at the Supreme Court is deeply troubling.”