Hein, Jay, et al. (Dir., White House Office of Faith-Based and Community Initiatives) v. Freedom from Religion Foundation, Inc.,

Question presented: Whether taxpayers have standing under Article III of the Constitution to challenge on Establishment Clause grounds the actions of Executive Branch officials pursuant to an Executive Order, where the plaintiffs challenge no Act of Congress, the Executive Branch actions at issue are financed only indirectly through general appropriations, and no funds are disbursed to any entities or individuals outside the government?

BY FARYL URY, MEDILL NEWS SERVICE

Plans by the Bush Administration to help religious groups provide federally-funded social services has some concerned that the president is blurring the line between religion and government.

One group was so worried that it sued the Bush Administration arguing that parts of the so-called "faith-based initiative" violate the Establishment Clause of the Constitution by favoring religious groups over secular organizations. The Establishment Clause says, "Congress shall make no law respecting the establishment of a religion."

At issue is whether the plaintiffs have standing to sue and whether taxpayers may challenge an executive program not created by Congress.

The controversy began in January 2001, when President George Bush, through executive order, created the White House Office of Faith-Based & Community Initiatives, which encourages religious groups to provide federally-funded social services. Under director Jay F. Hein, named in the suit, the office works to increase support and decrease bureaucratic barriers for religious groups, according to the office's website.

The Freedom from Religion Foundation, a Wisconsin group that works to defend the separation of church and state, took issue with the program. In 2004, The foundation, along with its three taxpayer plaintiffs - Dan Barker, Annie Laurie Gaylor, and Anne Nicol Gaylor - sued the White House's faith-based office claiming it was unfairly using taxpayer money to favor the activities of religious groups and "give faith-based organizations preferred positions as political insiders" by "endorsing religious belief over non-belief."

The suit focused on national and regional conferences, which, according to the foundation, single out groups as especially worthy of federal funding because of their religious orientation.These conferences, the complaint said, send messages to the non-religious that they are "outsiders, not full members of the political community."

The complaint also names intermediary groups - Secretaries of the Department of Labor, Health and Social Services, Education, and Justice, and the Director of the Centers for Disease Control - saying they have preferentially funded services that integrate religion as a substantive component.

The foundation asked the U. S. District Court for the Western District of Wisconsin to halt funding of the program and to find that the faith-based initiative violates the Establishment Clause. It also asked for an order requiring the White House to establish guidelines "to ensure that future appropriations are not made and/or used to fund social service providers that include religion as an integral component of the funded activity."

The issue at hand concerns the plaintiffs' standing to bring the case, whether they, as taxpayers, have the right to challenge the White House's faith-based office. Moreover, it addresses whether taxpayers can sue over a federal program that promotes religion, but does not use funds specifically purposed by Congress for such goals.

When the plaintiffs sued originally, they invoked their standing as taxpayers. But, the Bush Administration argued, taxpayers can challenge only congressional money that directly benefits religion. The government asserted that an executive order, not a specific congressional appropriation of taxpayer money, set up the offices.

Under the traditional doctrine of standing, people cannot challenge a government program merely because they don't want their taxes funding the program, according to the First Amendment Center. Rather, taxpayers need to demonstrate that they have or will suffer real, specific harm before they can challenge a program in court.

However, there is an important exception; according to the 1968 Supreme Court decision in Flast v. Cohen, if a taxpayer argues that a government program violates the Establishment Clause of the First Amendment, they then have the standing to sue. The specific case allowed a taxpayer to challenge federal money funding religious schools. Basing its decision on what the judges believed to be the framers' intentions, the Court ruled that taxpayers can challenge the use of "the taxing and spending power . . . to favor one religion over another or to support religion in general."

In 2004, U.S. District Judge John Shabaz, dismissed the complaint by The Freedom from Religion Foundation and sided with the government, ruling that Barker and the Gaylors did not have standing to sue over something the executive office did with general appropriations, since it was not Congress that determined those actions.

In January 2006, a 7th Circuit Court of Appeals panel voted 2-1 in favor of the foundation, saying the taxpayers did have the right under Article III of the Constitution to sue over a violation of the First Amendment establishment clause, even in a case where Congress had not specifically designated money for the program in question. A program technically created by the executive branch, it is ultimately funded by money raised by Congress, wrote Judge Richard Posner.

"That it was an executive rather than a Congressional program does not deprive taxpayers of standing to challenge it," Posner concluded.

In his decision, Posner suggested that any other ruling would set a bad precedent, meaning that any future action taken by the executive branch, even something overtly religious such as building a mosque, would be unchallengeable.

The Bush Administration appealed the decision and on Dec. 1, 2006, the Supreme Court agreed to hear the case.

"It's what you would expect in a theocracy, what I would expect the country of Iran to do," said Annie Laurie Gaylor of Bush's initiative, adding that the dividing line between church and state has blurred much more quickly under the current president.

In terms of the implications of the case, Gaylor said that if taxpayers don't have standing, no one will have the right to challenge the actions of the executive branch is doing, even when it violates the establishment clause.

"If Bush can do this, he can set up an office to promote intelligent design," she said.

But members of The Foundation for Moral Law, which filed an amicus brief in support of the government, disagree.

Benjamin D. DuPre, an attorney listed in the brief, said the case offers a chance for the courts to close a loophole that has allowed taxpayers with no direct connection to a case to sue merely because they disagree with a government program.

"The Court has just gone so far from the original intent of the First Amendment," DuPre said referring to the 1968 precedent. "Folks shouldn't even be bringing suits based on the establishment clause."

Charles Haynes, a senior scholar at the First Amendment Center, a non-partisan organization that educates the public about First Amendment issues, says if the Court allows this challenge, people will have more room to dispute government actions. If the Court denies standing, he says, it will narrow the opportunity to challenge government action.

On June 25, 2007, a divided Supreme Court reversed the 7th Circuit, holding that taxpayers do not have standing to challenge the Office of Faith-based and Community Initiatives.

“It has long been established...that the payment of taxes is generally not enough to establish standing to challenge an action taken by the federal government,” Justice Samuel Alito wrote for the majority, joined by Chief Justice John Roberts and Justice Anthony Kennedy.

“If every federal taxpayer could sue to challenge any government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus,” Alito added.

In a statement, President Bush hailed the decision as “a win for the thousands of community and faith-based nonprofits all across the country that have partnered with government at all levels to serve their neighbors.”

In analyzing the case, Alito noted that Flast did not apply, in part because it dealt with a “specific congressional appropriation” rather than an executive branch action.

He noted that Flast was not undermined by the decision.

But Justice Antonin Scalia, in a concurring opinion, argued that Flast should have been overturned since it has confused lower courts.

“We had an opportunity today to erase this blot on our jurisprudence, but instead have simply smudged it,” Scalia wrote, in an opinion joined by Justice Clarence Thomas.

Meanwhile, Justice David Souter, in a dissenting opinion joined by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer, faulted the majority’s separation of powers argument.

“When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injury,” Souter wrote.