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Supreme Ct "Faith-Based" Decision Widely Criticized
Via NY Transfer News Collective All the News that Doesn't Fit
sent by Freedom From Religion Foundation - Jun 26, 2007
A Sampling of Best News Coverage of Yesterday's
Supreme Court Ruling in Hein v. FFRF
Below are the most insightful or indepth news coverage of the Supreme
Court's decision to limit the right of federal taxpayers to sue over
"discretionary" Executive Branch violations of the separation between
church and state. Click on the link under each description to read news
stories about FFRF's challenge of the creation of the offices of
faith-based initiatives at the White House and Cabinets. Text of each
article follows in order at the end, for reader convenience.
The Wisconsin State Journal sent reporter Doug Erickson to the Madison
offices of the Freedom From Religion Foundation for personal coverage
of the day the Supreme Court handed down its 5-4 decision against FFRF
in the Hein v. FFRF decision. This is a follow-up to Mr. Erickson's
major profile on FFRF and the lawsuit in February. (An audio and
slideshow are advertised, but currently don't seem available at the WSJ
website.):
High Court rules against local group
The New York Times editorialized against the Supreme Court's ruling in
the FFRF challenge, writing that "the professed devotion to the First
Amendment did not extend to allowing taxpayers to challenge White House
aid to faith-based organizations as a violation of church-state
separation. The controlling opinion by Justice Samuel Alito offers a
****eyed reading of precedent and flimsy distinctions between executive
branch initiatives and Congressionally authorized spending to deny
private citizens standing to sue. That permits the White House to
escape accountability when it improperly spends tax money for religious
purposes.":
To see a representative sampling of other news coverage mentioning the
decision in the FFRF case, visit the Media Coverage link (which will be
updated periodically) at: http://ffrf.org/media/ High court rules
against local group
Wisconsin State Journal - Jun 25, 2007
by Doug Erickson
The e-mails began arriving Monday just minutes after the U.S. Supreme
Court ruled against the Madison-based Freedom From Religion Foundation
in its challenge of President Bush's faith-based initiatives.
Supporters offered encouragement -- "Keep up the good fight" -- while
detractors gloated. One person wrote: "Freedom From Religion
Foundation: 0. God: 1."
"Hate mail is always pretty funny," shrugged Annie Laurie Gaylor, a
foundation co-president with Dan Barker. "God's not very powerful if
that's the only thing he's won."
Gaylor and Barker called the 5-4 ruling disappointing but not
unexpected. They'd watched the last few months as the court's decisions
tilted to the right on everything from employment discrimination to
abortion. A particularly bad omen, Gaylor said, was the court's
dismissal of a lawsuit because the plaintiff, a prisoner, had filed
legal papers late, even though the lateness was the result of a judge's
error.
"We knew then that all hope was over," she said.
The foundation sought the right to sue the White House Office of
Faith-Based and Community Initiatives. The foundation's target was not
the individual grants that go to faith-based organizations, but rather
the infrastructure at the White House and at cabinet agencies that
promotes the grants -- what Barker calls "the beast itself." Those
promotional efforts included free luncheons with gospel choirs and
public prayers, Gaylor said.
A majority of the Supreme Court said the foundation does not have
standing to mount such a lawsuit because the plaintiffs -- including
Gaylor and Barker -- are ordinary taxpayers who had not suffered real,
specific harm.
A 1968 decision in Flast v. Cohen made an exception to that high
standard in cases where a taxpayer alleges a government-funded program
violates the establishment of religion clause of the First Amendment.
But the Supreme Court ruled Monday that the foundation's lawsuit
against the executive branch didn't meet the narrow criteria.
Gaylor found solace in the fact that the Supreme Court didn't abolish
the Flast exception altogether. "The silver lining is that they did not
overturn the prevailing precedent," she said.
At the foundation's office Monday, much time was spent looking for such
silver linings. Between interviews with the Boston Globe, CBS Radio and
others, Gaylor and Barker, who are married, debated the effect of the
ruling.
"Four justices agreed with us," said Barker, the more optimistic of the
two.
"Yeah, but how many of them are really young?" asked Gaylor. "This is
really a wake-up call that the single most powerful role of the
president is nominating Supreme Court justices."
The foundation will continue to file lawsuits against individual
faith-based grants on a state-by-state basis, an area where it's won
several victories, Barker said. However, he said Monday's decision
probably will make winning such lawsuits harder.
This was the first of the foundation's lawsuits to make it to the
Supreme Court, and even in losing, there have been benefits, Barker
said. The organization's membership is at an all-time high of 10,354 --
an increase of nearly 3,000 in nine months -- largely due to publicity
from the lawsuit. Thirty new memberships came in over the Internet in
just a couple of hours Monday.
Also Monday, Barker turned 58, which gave the office a celebratory feel
despite the defeat. Gaylor brought in a homemade cake for her husband
and staff members.
Barker speculated that Bush was celebrating Monday, too.
"Probably with a prayer breakfast."
Supreme Court ruling at a glance
The decision: The Supreme Court ruled Monday that ordinary taxpayers
cannot challenge a White House initiative that helps religious
charities get a share of federal money.
What it means: The 5-4 decision blocks a lawsuit by a group of atheists
and agnostics against eight Bush administration officials, including
the head of the White House Office of Faith-Based and Community
Initiatives. The Freedom From Religion Foundation objected to
government conferences in which administration officials encourage
religious charities to apply for federal grants.
The majority: Chief Justice John Roberts, Jr., and justices Samuel
Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas.
Dissenting: Justices Ruth Bader Ginsburg, David Souter, John Paul
Stevens and Stephen Breyer.
New York Times - Jun 26, 2007
Editorial
Three Bad Rulings
The Supreme Court hit the trifecta yesterday: Three cases involving the
First Amendment. Three dismaying decisions by Chief Justice John
Roberts's new conservative majority.
Chief Justice Roberts and the four others in his ascendant bloc used
the next-to-last decision day of this term to reopen the political
system to a new flood of special-interest money, to weaken protection
of student expression and to make it harder for citizens to challenge
government violations of the separation of church and state. In the
process, the reconfigured court extended its noxious habit of casting
aside precedents without acknowledging it -- insincere judicial modesty
scored by Justice Antonin Scalia in a concurring opinion.
First, campaign finance. Four years ago, a differently constituted
court upheld sensible provisions of the McCain-Feingold Act designed to
prevent corporations and labor unions from circumventing the ban on
their spending in federal campaigns by bankrolling phony "issue ads."
These ads purport to just educate voters about a policy issue, but are
really aimed at a particular candidate.
The 2003 ruling correctly found that the bogus issue ads were the
functional equivalent of campaign ads and upheld the Congressional
restrictions on corporate and union money. Yet the Roberts court
shifted course in response to sham issue ads run on radio and TV by a
group called Wisconsin Right to Life with major funding from
corporations opposed to Senator Russell Feingold, the Democrat who
co-authored the act.
It opened a big new loophole in time to do mischief in the 2008
elections. The exact extent of the damage is unclear. But the four
dissenters were correct in warning that the court's hazy new standard
for assessing these ads is bound to invite evasion and fresh public
cynicism about big money and politics.
The decision contained a lot of pious language about protecting free
speech. But magnifying the voice of wealthy corporations and unions
over the voice of candidates and private citizens is hardly a free
speech victory. Moreover, the professed devotion to the First Amendment
did not extend to allowing taxpayers to challenge White House aid to
faith-based organizations as a violation of church-state separation.
The controlling opinion by Justice Samuel Alito offers a ****eyed
reading of precedent and flimsy distinctions between executive branch
initiatives and Congressionally authorized spending to deny private
citizens standing to sue. That permits the White House to escape
accountability when it improperly spends tax money for religious
purposes.
Nor did the court's concern for free speech extend to actually allowing
free speech in the oddball case of an Alaska student who was suspended
from high school in 2002 after he unfurled a banner reading "Bong Hits
4 Jesus" while the Olympic torch passed. The ruling by Chief Justice
Roberts said public officials did not violate the student's rights by
punishing him for words that promote a drug message at an off-campus
event. This oblique reference to drugs hardly justifies such mangling
of sound precedent and the First Amendment.
The New York Times - Jun 26, 2007
Justices Reject Suit on Federal Money for Faith-Based Office
By Linda Greenhouse
WASHINGTON, June 25 -- The Supreme Court on Monday closed the
courthouse door on a lawsuit challenging the Bush administration's use
of taxpayer money to support its Office of Faith-Based and Community
Initiatives.
By a vote of 5 to 4, the court ruled that taxpayers could not sue to
block federal expenditures that they allege violate the constitutional
separation of church and state.
For 39 years, the court has recognized an exception to a general rule
that taxpayers do not have standing to sue to stop government
expenditures with which they disagree. That exception, created in the
1968 case of Flast v. Cohen, allowed taxpayers to challenge spending on
programs that they believed promoted religion. But yesterday's decision
said that precedent did not apply in this case.
The five-member majority was split between those justices who would
have overruled the precedent entirely and those who, interpreting it
narrowly, held that it did not apply to the lawsuit at issue. While
there was no opinion for the court, the narrower basis for disposing of
the case prevailed in an opinion by Justice Samuel A. Alito Jr. that
was joined by Chief Justice John G. Roberts Jr. and Justice Anthony M.
Kennedy.
These three said that, properly interpreted, the Flast v. Cohen
precedent permits taxpayer challenges to religion programs explicitly
set up and specifically financed by Congress. Since the Bush
administration created the White House Office of Faith-Based and
Community Initiatives by executive order and is paying for it out of
general appropriations, the precedent does not apply, the three
justices said.
The other two in the majority, Justices Antonin Scalia and Clarence
Thomas, objected that "there is no intellectual justification for this
limitation." Declaring that "if this court is to decide cases by rule
of law rather than show of hands, we must surrender to logic and choose
sides," Justice Scalia made clear which side he was on, in an opinion
that Justice Thomas signed. Flast v. Cohen was "an inkblot on our
jurisprudence," they said.
The dissenters also objected, from the other direction, to the
distinction that the Alito opinion drew. "If the executive could
accomplish through the exercise of discretion exactly what Congress
cannot do through legislation, Establishment Clause protection would
melt away," Justice David H. Souter wrote in a dissenting opinion that
was also signed by Justices John Paul Stevens, Ruth Bader Ginsburg and
Stephen G. Breyer.
The case began as a lawsuit brought against the administration in 2004
by a secular advocacy group, the Freedom From Religion Foundation, to
challenge the constitutionality of conferences that the White House
Office of Faith-Based and Community Initiatives has been running to
instruct religious organizations on how to apply for federal grants.
Annie Laurie Gaylor, co-president of the foundation, said in an
interview on Monday that her organization, based in Madison, Wis., was
relieved that the court had not used the case as an occasion to
overturn Flast v. Cohen. She said that many of the foundation's other
cases were either challenges to state programs in state court, or
challenges to federal programs established by Congressional action.
Neither category of lawsuits will be affected by the ruling, Hein v.
Freedom From Religion Foundation, No. 06-157.
Justice Alito's opinion, while concluding that "we leave Flast as we
found it," was implicitly quite critical of the precedent. "It is
significant that, in the four decades since its creation, the Flast
exception has largely been confined to its facts," he said. That is a
description of a decision that has become a dead end in the law, a
description that often precedes a decision to revisit and overrule such
a precedent.
But it was apparent from a brief concurring opinion by Justice Kennedy
that the day of reckoning has not yet arrived for Flast v. Cohen.
Justice Kennedy described the Establishment Clause in the First
Amendment as conveying "the Constitution's special concern that freedom
of conscience not be compromised by government taxing and spending in
support of religion." He added, "In my view the result reached in Flast
is correct and should not be called into question."
However, Justice Kennedy said, he agreed that the precedent should be
limited as Justice Alito's opinion proposed. Otherwise, he said,
"courts would soon assume the role of speech editors for communications
issued by executive officials and event planners for meetings they
hold."
Milwaukee Journal Sentinel - June 26, 2007
U.S. faith-based office staves off challenge
Wisconsin group lacks legal standing, Supreme Court rules
By Katherine M. Skiba
Washington - The U.S. Supreme Court on Monday gave a boost to President
Bush's faith-based initiatives, narrowly rejecting a challenge from a
Wisconsin group.
The group is the Freedom from Religion Foundation, which an 80-year-old
atheist, Anne Gaylor, began in Madison in 1978.
In a 5-4 decision, the court said the foundation lacked the legal
standing to challenge money the Office of Faith-Based and Community
Initiatives spent on conferences and speeches.
It was the first separation-of-church-and-state case heard by the court
under Chief Justice John Roberts.
Roberts, Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence
Thomas voted with the majority.
Dissenting were David Souter, John Paul Stevens, Ruth Bader Ginsburg
and Stephen Breyer.
The faith-based office funds social programs put on by religious and
community groups.
Officials of the Wisconsin group said the office's spending on
conferences and speeches had the effect of promoting religious groups
over secular ones.
Alito, writing the majority opinion, said that in light of the size of
the federal budget, it is "a complete fiction" to argue that an
unconstitutional federal expenditure causes an individual taxpayer any
measurable economic harm.
Moreover, if taxpayers could sue over any government expenditure, the
federal courts would cease to be courts of law and "would be cast in
the role of general complaint bureaus."
Bush called the decision a "substantial victory for efforts by
Americans to more effectively aid our neighbors in need of help."
He added that his federal office "can remain focused on strengthening
America's armies of compassion and expanding their good works," while
similar efforts by governors and mayors across the country advance.
Gaylor now is president emeritus of the foundation. Her daughter, Annie
Laurie Gaylor, 51, and her husband, Dan Barker, 58, both of Madison,
are co-presidents.
The elder Gaylor said Monday that the ruling left her "horrified" and
said she thought "the country should be horrified."
She decried what she termed an "ecclesiastical court" composed largely
of Catholics.
All of the justices opposing her view were Catholics: Roberts, Alito,
Kennedy, Scalia and Thomas.
"They are Catholic judges who are the most conservative kind," Gaylor
said. "They are Catholics who have been trained from infancy to believe
that their church is the answer and the public should be paying for
religious instruction."
Said Barker: "We are very disappointed. We were expecting a loss, but
we were disappointed the court has made it harder for taxpayers to sue
the government over violations of the First Amendment."
He saw silver linings based on how divided the court was and on
Souter's dissent.
The separation-of-church-and-state case hinged on whether an average
taxpayer could allege violations of the First Amendment's establishment
clause, which states: "Congress shall make no law respecting the
establishment of religion."
Congress did not set up the office.
Souter, pointing to a 1968 precedent, Flast vs. Cohen, said the
majority opinion in this latest case "closes the door on these
taxpayers because the Executive Branch, and not the Legislative Branch,
caused their injury."
"I see no basis for the distinction in either logic or precedent," he
added.
It was Bush, in an executive order early in his presidency, who created
the White House office and several centers within federal agencies to
ensure faith-based community groups are eligible to compete for federal
funds.
Jay F. Hein, a Shawano native who directs the White House's faith-based
initiatives office, was among petitioners in the case.
The Roundtable on Religion and Social Welfare Policy - Jun 25, 2007
Supreme Court:
Taxpayers May Not Challenge Promotion of Faith-Based Initiative
By Claire Hughes, Roundtable Correspondent
Taxpayers cannot sue the federal government over events that promote
its Faith-Based and Community Initiative on grounds that they violate
the constitutional separation of church and state, a splintered U.S.
Supreme Court ruled Monday (June 25).
In a case known as Hein v. Freedom From Religion Foundation, the
nation's highest court ruled that taxpayers may not mount legal
challenges against the government over funding to religious
organizations unless Congress has specifically authorized the programs
that provide the money. Citizens may not sue over purely discretionary
actions of the President and his administration paid for out of general
administrative funds, the court determined.
Significantly, but not unexpectedly, the high court's decision did not
more broadly limit taxpayers' right to sue over violations of the First
Amendment's Establishment Clause by overturning a 38-year-old precedent
in a case known as Flast v. Cohen. Such a decision would have severely
restricted the right of individuals and civil liberties groups to mount
religion-related lawsuits against the government.
"The outcome in Hein is not a surprise, and the court's action is not
likely to produce any major change in the ability of taxpayers to get
the courts to enforce the Establishment Clause," said Ira C. Lupu, a
law professor at George Washington University and co-director of legal
research for the Roundtable on Religion and Social Welfare Policy. "In
cases in which legislatures - Congress, state legislatures, or local
legislative bodies - have authorized social service programs, and these
legislating bodies can foresee the possibility that religious entities
may receive public support, taxpayers can still go to courts to
complain that the government is impermissibly supporting religious
activity."
President Bush released a statement praising the Supreme Court
decision, which affirmed the government's position in the case.
"Today's Supreme Court decision marks a substantial victory for efforts
by Americans to more effectively aid our neighbors in need of help,"
the statement read. "The Faith-Based and Community Initiative can
remain focused on strengthening America's armies of compassion and
expanding their good works."
Jay Hein, director of the White House Office of Faith-Based and
Community Initiatives, echoed the President's sentiments.
"The bottom line to the decision today is we think it enables us to
keep doing what we're intended to do, which is help all of those who
are interested in helping the poor," Hein said. "The administration
believes that government does better when it works with every partner,
whether faith-based or secular, large or small."
The co-president of Freedom From Religion Foundation, which originally
brought the lawsuit against the government, said her organization
anticipated a ruling opposed to its claims, given the conservative turn
in the Supreme Court's makeup and previous decisions that have been
handed down this session.
"Given the roster of terrible decisions 5-4 this spring, our loss was
not unexpected," said FFRF Co-president Annie Laurie Gaylor. "What was
I think the saving grace was that Flast v. Cohen was upheld. There was
great suspense about how far this new court was going to go. I was
pleased that there were only two justices ... who were such bullies
that they wanted to overturn all taxpayer rights."
Justice Samuel Alito wrote the court's opinion in the case, and was
joined by Chief Justice Roberts and Justice Kennedy. Justices Scalia
and Thomas concurred, but wrote in favor of overturning Flast. Justices
Souter, Stevens, Ginsburg and Breyer dissented.
Hein v. FFRF was originally brought three years ago to challenge the
Bush administration's Faith-Based and Community Initiative, a federal
effort to encourage religious groups to provide social services in
partnership with the government. Without congressional support, the
initiative moved forward largely on the basis of executive orders
rather than legislative action.
Wisconsin-based FFRF, a group of about 10,000 atheists and agnostics,
took aim at a series of White House conferences that offered
information on federal aid to religious groups. Portions of Freedom
>From Religion Foundation's original lawsuit, involving government
grants to specific religious organizations, were allowed to move
forward under different case names.
As the case proceeded upward through the federal courts, the issue
remaining for the Supreme Court to decide was taxpayer standing -
whether ordinary citizens have the right to sue in cases involving the
Establishment Clause. That's the phrase of the First Amendment that
states, "Congress shall make no law respecting an establishment of
religion."
In general, taxpayers do not have the right to sue the federal
government over how money is spent. But the Supreme Court created an
exception to that rule in Flast v. Cohen, which challenged expenditures
appropriated by Congress to buy textbooks for both public and private
schools, a group that Congress knew included religious schools.
On Monday, seven justices announced their willingness to abide by the
ruling in Flast that created taxpayer standing in Establishment Clause
cases. A plurality of the court, however, determined that FFRF's claim
against the Faith-Based and Community Initiative did not meet the
standard set by that precedent. Justice Alito's opinion contends that
the Flast ruling very specifically rests on Congress using its taxing
power to knowingly promote religion or religious organizations, Lupu
said.
The four dissenting justices agreed that Flast should be respected, but
they argued that FFRF's lawsuit should be allowed to go forward,
because taxpayer standing should apply to challenges addressing actions
of the executive branch as well as of Congress.
Despite the case's limited legal scope, advocacy groups on both sides
saw it has having broader implications regarding the relations between
religion and government. A number of groups had filed
friend-of-the-court briefs - more liberal civil liberties groups
supported FFRF while more conservative religious liberties groups, as
well as a coalition of states, supported the federal government.
Groups that had filed friend-of-the-court briefs in support of FFRF
issued statements Monday expressing disappointment with the decision,
but some solace in the fact that it was a narrow ruling.
"The Supreme Court's decision in Hein v. Freedom From Religion
Foundation significantly curtails the right of taxpayers to take the
government to court when it spends their tax dollars in a way that
unconstitutionally advances or hurts religion, a right which has been a
bedrock of religious liberty in this country," read a statement from
the Anti-Defamation League.
Those that had supported the government were pleased with what they saw
as a limitation, albeit a narrow one, of the right to sue over
religious matters.
"The Supreme Court sent a strong message that atheists and others
antagonistic to religion do not get an automatic free pass to bring
Establishment Clause lawsuits," said the statement on the American
Center for Law & Justice's website.
The narrow decision is not likely to have any immediate effect on the
majority of cases that are typically brought charging violations of
church and state, Lupu said. Most of those, including most of the
lawsuits brought by FFRF, involve allegations about grants made under
programs approved by legislative bodies.
But it will be interesting to watch how the decision plays out in the
lower courts, especially in cases involving state or local programs,
Lupu said. State governments defending themselves against Establishment
Clause lawsuits may attack the standing of taxpayer plaintiffs when the
state's inclusion of religious service providers has not been
specifically authorized by state legislatures, he said.
Similarly, in defending federal grants programs, the plurality opinion
in Hein could lead the federal government's lawyers to argue that
including faith-based grantees in programs is part of an executive
policy, Lupu said. Those same lawyers might argue that Congress'
inaction on the Faith-Based Initiative is reason to prevent taxpayers
from suing to challenge those grant programs, he said.
Another lawsuit brought by FFRF will now be able to move forward. The
Seventh Circuit Court of Appeals had allowed the government to postpone
its response to an appeal by the church-state watchdog group,
challenging the chaplaincy programs of the U.S. Department of Veterans
Affairs massive health-care system. The government said it intended to
bring up the issue of FFRF's standing, and asked for a delay until the
Supreme Court ruled in Hein v. FFRF.
Gaylor said she thought standing would not now be an issue in the
chaplaincy case, because VA appropriations are authorized by Congress.
Even if it were, she said FFRF could always find an injured party to
represent - a patient who felt wronged by inappropriate probing about
his faith, for instance - rather than sue as a group of taxpayers.
She expressed dismay, on the other hand, about the lack of a legal
avenue to dismantle the Faith-Based and Community Initiative. And she
urged taxpayers who are against the effort to lobby their members of
Congress to stop it.
"Congress has got to move, because nobody else can." Gaylor said. "No
one has standing to sue."
The Boston Globe - Jun 26, 2007
Court bars suit on faith-based plan Bush initiative can continue
By Michael Kranish
WASHINGTON -- A divided Supreme Court yesterday stopped an atheist
group's lawsuit against President Bush's faith-based initiative, ruling
that the plaintiffs do not have standing in the case and thus enabling
Bush to continue a program he created by executive order without
congressional approval.
The decision was made on a day when the high court showed its
increasingly conservative tilt, approving restrictions on student
speech, loosening limits on corporate- and union-paid advertising close
to Election Day, and siding with developers in an environmental suit.
All four cases were decided by 5 -to- 4 votes, with both of Bush's
picks -- Chief Justice John G. Roberts Jr., who replaced the late
William Rehnquist, and Justice Samuel Alito, who was confirmed after
Sandra Day O'Connor retired -- siding with the majority. Rehnquist was
a solid conservative, while O'Connor was widely viewed as a centrist
swing vote.
The decisions show that "President Bush got exactly what he hoped for,
a court substantially further to the right," said Tom Goldstein, a
Harvard Law School lecturer on Supreme Court litigation who has also
argued cases before the high court. If O'Connor were still on the
court, he said, all four cases might have been decided differently.
The faith-based case is particularly important, Goldstein said, because
it protects Bush's programs from legal challenges and indicates that
the court will be "less concerned about keeping church and state
separate, so later decisions will be more sympathetic to government's
cooperating with religious institutions."
The plaintiffs in the case, including taxpayers from the Freedom From
Religion Foundation, had argued that the funding of the White House
Office of Faith-Based and Community Initiatives, violated the
established separation of church and state, putting the government in
the position of steering hundreds of millions of taxpayer dollars to
groups with strong religious affiliations. The plaintiffs argued that
Bush was spending taxpayer funds to hold conferences at which religious
groups were urged to apply for federal grants.
But the Supreme Court, while not ruling directly on the First Amendment
church-state issue, found that the taxpayers who sued the government
can not do so simply because they pay taxes.
Writing for the majority, Alito said the federal budget is so big "it
is a complete fiction to argue that an unconstitutional federal
expenditure causes an individual federal taxpayer any measurable
economic harm. And 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 noted that the Supreme Court had previously made an exception
under which taxpayers could sue if Congress appropriates funds in a way
that violates the separation of church and state. But in this case,
Alito wrote, the faith-based initiative funds were "paid for out of
general Executive Branch appropriations" and therefore were not
directly funded by Congress.
In a dissenting opinion, Justice David Souter wrote that the initiative
uses taxpayer funds for conferences at which faith-based groups are
urged to apply for government grants.
"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. "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 noted that the issue "has deep historical roots going back to
the ideal of religious liberty" espoused in the writings of James
Madison, who wrote, "Memorial and Remonstrance Against Religious
Assessments."
Souter reminded the court that Madison wrote that a free society may
not "force a citizen to contribute three pence only of his property for
the support of any one establishment" of religion.
In October, The Globe published a series of articles on the faith-based
initiative that found that between fiscal 2001 and 2005, the United
States awarded $1.7 billion to 159 faith-based groups for work
overseas, none of which was being directly monitored for church-state
separation compliance. Some secular groups that did not receive the
grants criticized several conditions attached to the expenditures on
grounds that they were designed to favor religious organizations.
Bush explained that he created the White House office on faith-based
initiatives after Congress refused to pass the legislation. "I got a
little frustrated in Washington because I couldn't get the bill
passed," Bush said in March 2004. "Congress wouldn't act, so I signed
an executive order -- that means I did it on my own."
Bush hailed the court decision, calling it "a substantial victory for
efforts by Americans to more effectively aid our neighbors in need of
help. The faith-based and community initiative can remain focused on
strengthening America's armies of compassion and expanding their good
works."
But Annie Laurie Gaylor, a plaintiff in the case and co president of
the Freedom From Religion Foundation, said the court's ruling has
prevented a legal examination of the larger issue of church-state
relations.
In the other narrowly decided cases, the Supreme Court ruled that a
Wisconsin anti abortion group should have been allowed to run ads
before Election Day, thus undercutting a restriction in a landmark
campaign finance bill, and Alaskan officials had the right to ban a
student's banner that said "Bong Hits 4 Jesus" on grounds that it
suggested support of drug abuse. The court also sided with developers
in a case regarding the Endangered Species Act.
Freedom From Religion Foundation PO Box 750 Madison, WI 53701
(608) 256-8900 e-mail us (c) Freedom From Religion Foundation.
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Supreme Ct "Faith-Based" Decision Widely Criticized
Via NY Transfer News Collective All the News that Doesn't Fit
sent by Freedom From Religion Foundation - Jun 26, 2007
A Sampling of Best News Coverage of Yesterday's
Supreme Court Ruling in Hein v. FFRF
Below are the most insightful or indepth news coverage of the Supreme
Court's decision to limit the right of federal taxpayers to sue over
"discretionary" Executive Branch violations of the separation between
church and state. Click on the link under each description to read news
stories about FFRF's challenge of the creation of the offices of
faith-based initiatives at the White House and Cabinets. Text of each
article follows in order at the end, for reader convenience.
The Wisconsin State Journal sent reporter Doug Erickson to the Madison
offices of the Freedom From Religion Foundation for personal coverage
of the day the Supreme Court handed down its 5-4 decision against FFRF
in the Hein v. FFRF decision. This is a follow-up to Mr. Erickson's
major profile on FFRF and the lawsuit in February. (An audio and
slideshow are advertised, but currently don't seem available at the WSJ
website.):
High Court rules against local group
The New York Times editorialized against the Supreme Court's ruling in
the FFRF challenge, writing that "the professed devotion to the First
Amendment did not extend to allowing taxpayers to challenge White House
aid to faith-based organizations as a violation of church-state
separation. The controlling opinion by Justice Samuel Alito offers a
****eyed reading of precedent and flimsy distinctions between executive
branch initiatives and Congressionally authorized spending to deny
private citizens standing to sue. That permits the White House to
escape accountability when it improperly spends tax money for religious
purposes.":
To see a representative sampling of other news coverage mentioning the
decision in the FFRF case, visit the Media Coverage link (which will be
updated periodically) at: http://ffrf.org/media/ High court rules
against local group
Wisconsin State Journal - Jun 25, 2007
by Doug Erickson
The e-mails began arriving Monday just minutes after the U.S. Supreme
Court ruled against the Madison-based Freedom From Religion Foundation
in its challenge of President Bush's faith-based initiatives.
Supporters offered encouragement -- "Keep up the good fight" -- while
detractors gloated. One person wrote: "Freedom From Religion
Foundation: 0. God: 1."
"Hate mail is always pretty funny," shrugged Annie Laurie Gaylor, a
foundation co-president with Dan Barker. "God's not very powerful if
that's the only thing he's won."
Gaylor and Barker called the 5-4 ruling disappointing but not
unexpected. They'd watched the last few months as the court's decisions
tilted to the right on everything from employment discrimination to
abortion. A particularly bad omen, Gaylor said, was the court's
dismissal of a lawsuit because the plaintiff, a prisoner, had filed
legal papers late, even though the lateness was the result of a judge's
error.
"We knew then that all hope was over," she said.
The foundation sought the right to sue the White House Office of
Faith-Based and Community Initiatives. The foundation's target was not
the individual grants that go to faith-based organizations, but rather
the infrastructure at the White House and at cabinet agencies that
promotes the grants -- what Barker calls "the beast itself." Those
promotional efforts included free luncheons with gospel choirs and
public prayers, Gaylor said.
A majority of the Supreme Court said the foundation does not have
standing to mount such a lawsuit because the plaintiffs -- including
Gaylor and Barker -- are ordinary taxpayers who had not suffered real,
specific harm.
A 1968 decision in Flast v. Cohen made an exception to that high
standard in cases where a taxpayer alleges a government-funded program
violates the establishment of religion clause of the First Amendment.
But the Supreme Court ruled Monday that the foundation's lawsuit
against the executive branch didn't meet the narrow criteria.
Gaylor found solace in the fact that the Supreme Court didn't abolish
the Flast exception altogether. "The silver lining is that they did not
overturn the prevailing precedent," she said.
At the foundation's office Monday, much time was spent looking for such
silver linings. Between interviews with the Boston Globe, CBS Radio and
others, Gaylor and Barker, who are married, debated the effect of the
ruling.
"Four justices agreed with us," said Barker, the more optimistic of the
two.
"Yeah, but how many of them are really young?" asked Gaylor. "This is
really a wake-up call that the single most powerful role of the
president is nominating Supreme Court justices."
The foundation will continue to file lawsuits against individual
faith-based grants on a state-by-state basis, an area where it's won
several victories, Barker said. However, he said Monday's decision
probably will make winning such lawsuits harder.
This was the first of the foundation's lawsuits to make it to the
Supreme Court, and even in losing, there have been benefits, Barker
said. The organization's membership is at an all-time high of 10,354 --
an increase of nearly 3,000 in nine months -- largely due to publicity
from the lawsuit. Thirty new memberships came in over the Internet in
just a couple of hours Monday.
Also Monday, Barker turned 58, which gave the office a celebratory feel
despite the defeat. Gaylor brought in a homemade cake for her husband
and staff members.
Barker speculated that Bush was celebrating Monday, too.
"Probably with a prayer breakfast."
Supreme Court ruling at a glance
The decision: The Supreme Court ruled Monday that ordinary taxpayers
cannot challenge a White House initiative that helps religious
charities get a share of federal money.
What it means: The 5-4 decision blocks a lawsuit by a group of atheists
and agnostics against eight Bush administration officials, including
the head of the White House Office of Faith-Based and Community
Initiatives. The Freedom From Religion Foundation objected to
government conferences in which administration officials encourage
religious charities to apply for federal grants.
The majority: Chief Justice John Roberts, Jr., and justices Samuel
Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas.
Dissenting: Justices Ruth Bader Ginsburg, David Souter, John Paul
Stevens and Stephen Breyer.
New York Times - Jun 26, 2007
Editorial
Three Bad Rulings
The Supreme Court hit the trifecta yesterday: Three cases involving the
First Amendment. Three dismaying decisions by Chief Justice John
Roberts's new conservative majority.
Chief Justice Roberts and the four others in his ascendant bloc used
the next-to-last decision day of this term to reopen the political
system to a new flood of special-interest money, to weaken protection
of student expression and to make it harder for citizens to challenge
government violations of the separation of church and state. In the
process, the reconfigured court extended its noxious habit of casting
aside precedents without acknowledging it -- insincere judicial modesty
scored by Justice Antonin Scalia in a concurring opinion.
First, campaign finance. Four years ago, a differently constituted
court upheld sensible provisions of the McCain-Feingold Act designed to
prevent corporations and labor unions from circumventing the ban on
their spending in federal campaigns by bankrolling phony "issue ads."
These ads purport to just educate voters about a policy issue, but are
really aimed at a particular candidate.
The 2003 ruling correctly found that the bogus issue ads were the
functional equivalent of campaign ads and upheld the Congressional
restrictions on corporate and union money. Yet the Roberts court
shifted course in response to sham issue ads run on radio and TV by a
group called Wisconsin Right to Life with major funding from
corporations opposed to Senator Russell Feingold, the Democrat who
co-authored the act.
It opened a big new loophole in time to do mischief in the 2008
elections. The exact extent of the damage is unclear. But the four
dissenters were correct in warning that the court's hazy new standard
for assessing these ads is bound to invite evasion and fresh public
cynicism about big money and politics.
The decision contained a lot of pious language about protecting free
speech. But magnifying the voice of wealthy corporations and unions
over the voice of candidates and private citizens is hardly a free
speech victory. Moreover, the professed devotion to the First Amendment
did not extend to allowing taxpayers to challenge White House aid to
faith-based organizations as a violation of church-state separation.
The controlling opinion by Justice Samuel Alito offers a ****eyed
reading of precedent and flimsy distinctions between executive branch
initiatives and Congressionally authorized spending to deny private
citizens standing to sue. That permits the White House to escape
accountability when it improperly spends tax money for religious
purposes.
Nor did the court's concern for free speech extend to actually allowing
free speech in the oddball case of an Alaska student who was suspended
from high school in 2002 after he unfurled a banner reading "Bong Hits
4 Jesus" while the Olympic torch passed. The ruling by Chief Justice
Roberts said public officials did not violate the student's rights by
punishing him for words that promote a drug message at an off-campus
event. This oblique reference to drugs hardly justifies such mangling
of sound precedent and the First Amendment.
The New York Times - Jun 26, 2007
Justices Reject Suit on Federal Money for Faith-Based Office
By Linda Greenhouse
WASHINGTON, June 25 -- The Supreme Court on Monday closed the
courthouse door on a lawsuit challenging the Bush administration's use
of taxpayer money to support its Office of Faith-Based and Community
Initiatives.
By a vote of 5 to 4, the court ruled that taxpayers could not sue to
block federal expenditures that they allege violate the constitutional
separation of church and state.
For 39 years, the court has recognized an exception to a general rule
that taxpayers do not have standing to sue to stop government
expenditures with which they disagree. That exception, created in the
1968 case of Flast v. Cohen, allowed taxpayers to challenge spending on
programs that they believed promoted religion. But yesterday's decision
said that precedent did not apply in this case.
The five-member majority was split between those justices who would
have overruled the precedent entirely and those who, interpreting it
narrowly, held that it did not apply to the lawsuit at issue. While
there was no opinion for the court, the narrower basis for disposing of
the case prevailed in an opinion by Justice Samuel A. Alito Jr. that
was joined by Chief Justice John G. Roberts Jr. and Justice Anthony M.
Kennedy.
These three said that, properly interpreted, the Flast v. Cohen
precedent permits taxpayer challenges to religion programs explicitly
set up and specifically financed by Congress. Since the Bush
administration created the White House Office of Faith-Based and
Community Initiatives by executive order and is paying for it out of
general appropriations, the precedent does not apply, the three
justices said.
The other two in the majority, Justices Antonin Scalia and Clarence
Thomas, objected that "there is no intellectual justification for this
limitation." Declaring that "if this court is to decide cases by rule
of law rather than show of hands, we must surrender to logic and choose
sides," Justice Scalia made clear which side he was on, in an opinion
that Justice Thomas signed. Flast v. Cohen was "an inkblot on our
jurisprudence," they said.
The dissenters also objected, from the other direction, to the
distinction that the Alito opinion drew. "If the executive could
accomplish through the exercise of discretion exactly what Congress
cannot do through legislation, Establishment Clause protection would
melt away," Justice David H. Souter wrote in a dissenting opinion that
was also signed by Justices John Paul Stevens, Ruth Bader Ginsburg and
Stephen G. Breyer.
The case began as a lawsuit brought against the administration in 2004
by a secular advocacy group, the Freedom From Religion Foundation, to
challenge the constitutionality of conferences that the White House
Office of Faith-Based and Community Initiatives has been running to
instruct religious organizations on how to apply for federal grants.
Annie Laurie Gaylor, co-president of the foundation, said in an
interview on Monday that her organization, based in Madison, Wis., was
relieved that the court had not used the case as an occasion to
overturn Flast v. Cohen. She said that many of the foundation's other
cases were either challenges to state programs in state court, or
challenges to federal programs established by Congressional action.
Neither category of lawsuits will be affected by the ruling, Hein v.
Freedom From Religion Foundation, No. 06-157.
Justice Alito's opinion, while concluding that "we leave Flast as we
found it," was implicitly quite critical of the precedent. "It is
significant that, in the four decades since its creation, the Flast
exception has largely been confined to its facts," he said. That is a
description of a decision that has become a dead end in the law, a
description that often precedes a decision to revisit and overrule such
a precedent.
But it was apparent from a brief concurring opinion by Justice Kennedy
that the day of reckoning has not yet arrived for Flast v. Cohen.
Justice Kennedy described the Establishment Clause in the First
Amendment as conveying "the Constitution's special concern that freedom
of conscience not be compromised by government taxing and spending in
support of religion." He added, "In my view the result reached in Flast
is correct and should not be called into question."
However, Justice Kennedy said, he agreed that the precedent should be
limited as Justice Alito's opinion proposed. Otherwise, he said,
"courts would soon assume the role of speech editors for communications
issued by executive officials and event planners for meetings they
hold."
Milwaukee Journal Sentinel - June 26, 2007
U.S. faith-based office staves off challenge
Wisconsin group lacks legal standing, Supreme Court rules
By Katherine M. Skiba
Washington - The U.S. Supreme Court on Monday gave a boost to President
Bush's faith-based initiatives, narrowly rejecting a challenge from a
Wisconsin group.
The group is the Freedom from Religion Foundation, which an 80-year-old
atheist, Anne Gaylor, began in Madison in 1978.
In a 5-4 decision, the court said the foundation lacked the legal
standing to challenge money the Office of Faith-Based and Community
Initiatives spent on conferences and speeches.
It was the first separation-of-church-and-state case heard by the court
under Chief Justice John Roberts.
Roberts, Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence
Thomas voted with the majority.
Dissenting were David Souter, John Paul Stevens, Ruth Bader Ginsburg
and Stephen Breyer.
The faith-based office funds social programs put on by religious and
community groups.
Officials of the Wisconsin group said the office's spending on
conferences and speeches had the effect of promoting religious groups
over secular ones.
Alito, writing the majority opinion, said that in light of the size of
the federal budget, it is "a complete fiction" to argue that an
unconstitutional federal expenditure causes an individual taxpayer any
measurable economic harm.
Moreover, if taxpayers could sue over any government expenditure, the
federal courts would cease to be courts of law and "would be cast in
the role of general complaint bureaus."
Bush called the decision a "substantial victory for efforts by
Americans to more effectively aid our neighbors in need of help."
He added that his federal office "can remain focused on strengthening
America's armies of compassion and expanding their good works," while
similar efforts by governors and mayors across the country advance.
Gaylor now is president emeritus of the foundation. Her daughter, Annie
Laurie Gaylor, 51, and her husband, Dan Barker, 58, both of Madison,
are co-presidents.
The elder Gaylor said Monday that the ruling left her "horrified" and
said she thought "the country should be horrified."
She decried what she termed an "ecclesiastical court" composed largely
of Catholics.
All of the justices opposing her view were Catholics: Roberts, Alito,
Kennedy, Scalia and Thomas.
"They are Catholic judges who are the most conservative kind," Gaylor
said. "They are Catholics who have been trained from infancy to believe
that their church is the answer and the public should be paying for
religious instruction."
Said Barker: "We are very disappointed. We were expecting a loss, but
we were disappointed the court has made it harder for taxpayers to sue
the government over violations of the First Amendment."
He saw silver linings based on how divided the court was and on
Souter's dissent.
The separation-of-church-and-state case hinged on whether an average
taxpayer could allege violations of the First Amendment's establishment
clause, which states: "Congress shall make no law respecting the
establishment of religion."
Congress did not set up the office.
Souter, pointing to a 1968 precedent, Flast vs. Cohen, said the
majority opinion in this latest case "closes the door on these
taxpayers because the Executive Branch, and not the Legislative Branch,
caused their injury."
"I see no basis for the distinction in either logic or precedent," he
added.
It was Bush, in an executive order early in his presidency, who created
the White House office and several centers within federal agencies to
ensure faith-based community groups are eligible to compete for federal
funds.
Jay F. Hein, a Shawano native who directs the White House's faith-based
initiatives office, was among petitioners in the case.
The Roundtable on Religion and Social Welfare Policy - Jun 25, 2007
Supreme Court:
Taxpayers May Not Challenge Promotion of Faith-Based Initiative
By Claire Hughes, Roundtable Correspondent
Taxpayers cannot sue the federal government over events that promote
its Faith-Based and Community Initiative on grounds that they violate
the constitutional separation of church and state, a splintered U.S.
Supreme Court ruled Monday (June 25).
In a case known as Hein v. Freedom From Religion Foundation, the
nation's highest court ruled that taxpayers may not mount legal
challenges against the government over funding to religious
organizations unless Congress has specifically authorized the programs
that provide the money. Citizens may not sue over purely discretionary
actions of the President and his administration paid for out of general
administrative funds, the court determined.
Significantly, but not unexpectedly, the high court's decision did not
more broadly limit taxpayers' right to sue over violations of the First
Amendment's Establishment Clause by overturning a 38-year-old precedent
in a case known as Flast v. Cohen. Such a decision would have severely
restricted the right of individuals and civil liberties groups to mount
religion-related lawsuits against the government.
"The outcome in Hein is not a surprise, and the court's action is not
likely to produce any major change in the ability of taxpayers to get
the courts to enforce the Establishment Clause," said Ira C. Lupu, a
law professor at George Washington University and co-director of legal
research for the Roundtable on Religion and Social Welfare Policy. "In
cases in which legislatures - Congress, state legislatures, or local
legislative bodies - have authorized social service programs, and these
legislating bodies can foresee the possibility that religious entities
may receive public support, taxpayers can still go to courts to
complain that the government is impermissibly supporting religious
activity."
President Bush released a statement praising the Supreme Court
decision, which affirmed the government's position in the case.
"Today's Supreme Court decision marks a substantial victory for efforts
by Americans to more effectively aid our neighbors in need of help,"
the statement read. "The Faith-Based and Community Initiative can
remain focused on strengthening America's armies of compassion and
expanding their good works."
Jay Hein, director of the White House Office of Faith-Based and
Community Initiatives, echoed the President's sentiments.
"The bottom line to the decision today is we think it enables us to
keep doing what we're intended to do, which is help all of those who
are interested in helping the poor," Hein said. "The administration
believes that government does better when it works with every partner,
whether faith-based or secular, large or small."
The co-president of Freedom From Religion Foundation, which originally
brought the lawsuit against the government, said her organization
anticipated a ruling opposed to its claims, given the conservative turn
in the Supreme Court's makeup and previous decisions that have been
handed down this session.
"Given the roster of terrible decisions 5-4 this spring, our loss was
not unexpected," said FFRF Co-president Annie Laurie Gaylor. "What was
I think the saving grace was that Flast v. Cohen was upheld. There was
great suspense about how far this new court was going to go. I was
pleased that there were only two justices ... who were such bullies
that they wanted to overturn all taxpayer rights."
Justice Samuel Alito wrote the court's opinion in the case, and was
joined by Chief Justice Roberts and Justice Kennedy. Justices Scalia
and Thomas concurred, but wrote in favor of overturning Flast. Justices
Souter, Stevens, Ginsburg and Breyer dissented.
Hein v. FFRF was originally brought three years ago to challenge the
Bush administration's Faith-Based and Community Initiative, a federal
effort to encourage religious groups to provide social services in
partnership with the government. Without congressional support, the
initiative moved forward largely on the basis of executive orders
rather than legislative action.
Wisconsin-based FFRF, a group of about 10,000 atheists and agnostics,
took aim at a series of White House conferences that offered
information on federal aid to religious groups. Portions of Freedom
>From Religion Foundation's original lawsuit, involving government
grants to specific religious organizations, were allowed to move
forward under different case names.
As the case proceeded upward through the federal courts, the issue
remaining for the Supreme Court to decide was taxpayer standing -
whether ordinary citizens have the right to sue in cases involving the
Establishment Clause. That's the phrase of the First Amendment that
states, "Congress shall make no law respecting an establishment of
religion."
In general, taxpayers do not have the right to sue the federal
government over how money is spent. But the Supreme Court created an
exception to that rule in Flast v. Cohen, which challenged expenditures
appropriated by Congress to buy textbooks for both public and private
schools, a group that Congress knew included religious schools.
On Monday, seven justices announced their willingness to abide by the
ruling in Flast that created taxpayer standing in Establishment Clause
cases. A plurality of the court, however, determined that FFRF's claim
against the Faith-Based and Community Initiative did not meet the
standard set by that precedent. Justice Alito's opinion contends that
the Flast ruling very specifically rests on Congress using its taxing
power to knowingly promote religion or religious organizations, Lupu
said.
The four dissenting justices agreed that Flast should be respected, but
they argued that FFRF's lawsuit should be allowed to go forward,
because taxpayer standing should apply to challenges addressing actions
of the executive branch as well as of Congress.
Despite the case's limited legal scope, advocacy groups on both sides
saw it has having broader implications regarding the relations between
religion and government. A number of groups had filed
friend-of-the-court briefs - more liberal civil liberties groups
supported FFRF while more conservative religious liberties groups, as
well as a coalition of states, supported the federal government.
Groups that had filed friend-of-the-court briefs in support of FFRF
issued statements Monday expressing disappointment with the decision,
but some solace in the fact that it was a narrow ruling.
"The Supreme Court's decision in Hein v. Freedom From Religion
Foundation significantly curtails the right of taxpayers to take the
government to court when it spends their tax dollars in a way that
unconstitutionally advances or hurts religion, a right which has been a
bedrock of religious liberty in this country," read a statement from
the Anti-Defamation League.
Those that had supported the government were pleased with what they saw
as a limitation, albeit a narrow one, of the right to sue over
religious matters.
"The Supreme Court sent a strong message that atheists and others
antagonistic to religion do not get an automatic free pass to bring
Establishment Clause lawsuits," said the statement on the American
Center for Law & Justice's website.
The narrow decision is not likely to have any immediate effect on the
majority of cases that are typically brought charging violations of
church and state, Lupu said. Most of those, including most of the
lawsuits brought by FFRF, involve allegations about grants made under
programs approved by legislative bodies.
But it will be interesting to watch how the decision plays out in the
lower courts, especially in cases involving state or local programs,
Lupu said. State governments defending themselves against Establishment
Clause lawsuits may attack the standing of taxpayer plaintiffs when the
state's inclusion of religious service providers has not been
specifically authorized by state legislatures, he said.
Similarly, in defending federal grants programs, the plurality opinion
in Hein could lead the federal government's lawyers to argue that
including faith-based grantees in programs is part of an executive
policy, Lupu said. Those same lawyers might argue that Congress'
inaction on the Faith-Based Initiative is reason to prevent taxpayers
from suing to challenge those grant programs, he said.
Another lawsuit brought by FFRF will now be able to move forward. The
Seventh Circuit Court of Appeals had allowed the government to postpone
its response to an appeal by the church-state watchdog group,
challenging the chaplaincy programs of the U.S. Department of Veterans
Affairs massive health-care system. The government said it intended to
bring up the issue of FFRF's standing, and asked for a delay until the
Supreme Court ruled in Hein v. FFRF.
Gaylor said she thought standing would not now be an issue in the
chaplaincy case, because VA appropriations are authorized by Congress.
Even if it were, she said FFRF could always find an injured party to
represent - a patient who felt wronged by inappropriate probing about
his faith, for instance - rather than sue as a group of taxpayers.
She expressed dismay, on the other hand, about the lack of a legal
avenue to dismantle the Faith-Based and Community Initiative. And she
urged taxpayers who are against the effort to lobby their members of
Congress to stop it.
"Congress has got to move, because nobody else can." Gaylor said. "No
one has standing to sue."
The Boston Globe - Jun 26, 2007
Court bars suit on faith-based plan Bush initiative can continue
By Michael Kranish
WASHINGTON -- A divided Supreme Court yesterday stopped an atheist
group's lawsuit against President Bush's faith-based initiative, ruling
that the plaintiffs do not have standing in the case and thus enabling
Bush to continue a program he created by executive order without
congressional approval.
The decision was made on a day when the high court showed its
increasingly conservative tilt, approving restrictions on student
speech, loosening limits on corporate- and union-paid advertising close
to Election Day, and siding with developers in an environmental suit.
All four cases were decided by 5 -to- 4 votes, with both of Bush's
picks -- Chief Justice John G. Roberts Jr., who replaced the late
William Rehnquist, and Justice Samuel Alito, who was confirmed after
Sandra Day O'Connor retired -- siding with the majority. Rehnquist was
a solid conservative, while O'Connor was widely viewed as a centrist
swing vote.
The decisions show that "President Bush got exactly what he hoped for,
a court substantially further to the right," said Tom Goldstein, a
Harvard Law School lecturer on Supreme Court litigation who has also
argued cases before the high court. If O'Connor were still on the
court, he said, all four cases might have been decided differently.
The faith-based case is particularly important, Goldstein said, because
it protects Bush's programs from legal challenges and indicates that
the court will be "less concerned about keeping church and state
separate, so later decisions will be more sympathetic to government's
cooperating with religious institutions."
The plaintiffs in the case, including taxpayers from the Freedom From
Religion Foundation, had argued that the funding of the White House
Office of Faith-Based and Community Initiatives, violated the
established separation of church and state, putting the government in
the position of steering hundreds of millions of taxpayer dollars to
groups with strong religious affiliations. The plaintiffs argued that
Bush was spending taxpayer funds to hold conferences at which religious
groups were urged to apply for federal grants.
But the Supreme Court, while not ruling directly on the First Amendment
church-state issue, found that the taxpayers who sued the government
can not do so simply because they pay taxes.
Writing for the majority, Alito said the federal budget is so big "it
is a complete fiction to argue that an unconstitutional federal
expenditure causes an individual federal taxpayer any measurable
economic harm. And 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 noted that the Supreme Court had previously made an exception
under which taxpayers could sue if Congress appropriates funds in a way
that violates the separation of church and state. But in this case,
Alito wrote, the faith-based initiative funds were "paid for out of
general Executive Branch appropriations" and therefore were not
directly funded by Congress.
In a dissenting opinion, Justice David Souter wrote that the initiative
uses taxpayer funds for conferences at which faith-based groups are
urged to apply for government grants.
"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. "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 noted that the issue "has deep historical roots going back to
the ideal of religious liberty" espoused in the writings of James
Madison, who wrote, "Memorial and Remonstrance Against Religious
Assessments."
Souter reminded the court that Madison wrote that a free society may
not "force a citizen to contribute three pence only of his property for
the support of any one establishment" of religion.
In October, The Globe published a series of articles on the faith-based
initiative that found that between fiscal 2001 and 2005, the United
States awarded $1.7 billion to 159 faith-based groups for work
overseas, none of which was being directly monitored for church-state
separation compliance. Some secular groups that did not receive the
grants criticized several conditions attached to the expenditures on
grounds that they were designed to favor religious organizations.
Bush explained that he created the White House office on faith-based
initiatives after Congress refused to pass the legislation. "I got a
little frustrated in Washington because I couldn't get the bill
passed," Bush said in March 2004. "Congress wouldn't act, so I signed
an executive order -- that means I did it on my own."
Bush hailed the court decision, calling it "a substantial victory for
efforts by Americans to more effectively aid our neighbors in need of
help. The faith-based and community initiative can remain focused on
strengthening America's armies of compassion and expanding their good
works."
But Annie Laurie Gaylor, a plaintiff in the case and co president of
the Freedom From Religion Foundation, said the court's ruling has
prevented a legal examination of the larger issue of church-state
relations.
In the other narrowly decided cases, the Supreme Court ruled that a
Wisconsin anti abortion group should have been allowed to run ads
before Election Day, thus undercutting a restriction in a landmark
campaign finance bill, and Alaskan officials had the right to ban a
student's banner that said "Bong Hits 4 Jesus" on grounds that it
suggested support of drug abuse. The court also sided with developers
in a case regarding the Endangered Species Act.
Freedom From Religion Foundation PO Box 750 Madison, WI 53701
(608) 256-8900 e-mail us (c) Freedom From Religion Foundation.
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