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AS SUPREME COURT NIXES TAXPAYER CHALLENGES TO FAITH-BASED
INITIATIVE, RELIGIOUS RIGHT CHEERS, SEPARATION ENDANGERED
The facts are disturbing.
On Monday, the U.S. Supreme Court denied taxpayers the right to
challenge President Bush's federal faith-based initiative that uses
public money to subsidize religious charities and social programs.The 5-4 decision in Hein v. FREEDOM FROM RELIGION FOUNDATION (U.S.
No. 06-157) circumvented most of the substantive Establishment Clause
questions, and instead focused on the perennial bug-a-boo of
whether the original plaintiffs in the case had "standing," the legal
right to have the case heard. The court majority cited a 1968 case,
FLAST v. COHEN, which declared that taxpayers could sue when Congress
provided financial assistance to private and religious schools.
Justice Samuel Alito used that as a rationale to turn down the HEIN
challenge, though, writing that FLAST dealt only with a "specific
congressional appropriation" rather than action by the executive
branch.
Indeed, just weeks after his inauguration, President Bush used his
power of Executive Orders to create the White House Office of
Faith-Based and Community Initiatives, and then instructed the major
federal departments to begin making money available to churches,
mosques, temples and other religious groups. There was never any
congressional approval. Monday's decision upholds Mr. Bush's
authority in the matter, but does not protect actions by states and
municipalities that operate their own faith-based funding schemes.
Critics also charge that the ruling is in line with an emerging
Supreme Court majority that seems intent on codifying stronger powers
for the executive branch of government.
According to attorney David Shapiro who filed the AMERICAN ATHEISTS
"Amicus" (friend of the court" brief in HEIN, the 5-4 decision was
"severely fractured."
"The overall outcome is twofold. First, taxpayer standing is intact
as a means of challenging, on Establishment Clause grounds, spending
programs directly created by Congress. Second, there is no taxpayer
standing to challenge the Executive Branch's use of funds it receives
from Congress through general appropriations.
Five Justices held that taxpayer standing did not exist, but these
five Justices were divided into two blocs. The first bloc (Roberts,
Kennedy, Alito) held in an opinion authored by Justice Alito that
taxpayer standing did not exist under the facts of this case. In an
opinion by Justice Scalia, the second bloc (Scalia, Thomas) took the
radical position that the entire doctrine of taxpayer standing should
be discarded and Flast v. Cohen, which created such standing, should
be overruled. Four Justices (Souter, Stevens, Ginsburg, Breyer)
stated in a dissent by Justice Souter that they would have found
taxpayer standing.
It is the view of the Alito bloc that creates binding precedent
because it is the more narrow than the view of the Scalia bloc.
According to Justice Alito's opinion, Flast only allows challenges to
spending programs specifically mandated by Congress. Justice Alito
viewed the President's decision to fund faith-based conferences as an
exercise of Executive discretion unconnected to a specific
Congressional appropriation. The fact that the President used general
Executive branch funds that had been appropriated by Congress did not
provide a sufficient link to Congressional action. In essence,
Justice Alito demanded, as a prerequisite to taxpayer standing, that
the challenged expenditure involve funds earmarked by Congress for a
particular program. The fact that Congress gave undifferentiated
funds to the Executive Branch, which the Executive Branch then
directed for an arguably impermissible purpose, did not suffice to
confer standing.
The four dissenters argued that there is no meaningful distinction
between the harm that taxpayers suffer when the Legislative Branch
uses funds in violation of the Establishment Clause and the harm they
suffer when the Executive Branch does the same thing. A such, the
dissenters would have found taxpayer standing in this case."
Mr. Shapiro, though, remains optimistic and sees a silver lining in
Monday's otherwise gloomy HEIN ruling:
"The good news from today is that a majority of Justices reaffirmed
the doctrine of Flast that taxpayers have standing to challenge
specific Congressional appropriations on Establishment Clause grounds.
The four dissenters (Souter, Stevens, Ginsburg, Breyer) plainly would
have applied and even extended Flast. While the lead opinion
(Roberts, Kennedy, Alito) expressed some skepticism of Flast, and
noted that it "has largely been confined to its facts," (p. 19), the
lead opinion also refused to overrule Flast, stating "
e do not
extend Flast, but we also do not overrule it. We leave Flast as we
found it" (p.24). Critically, Justice Kennedy added an opinion on
behalf of only himself which both stated that he joined the lead
opinion in full and stressed that Flast was correctly decided: "In my
view the result reached in Flast is correct and should not be called
into question" (Kennedy concurrence, p.1).
Thus, a majority of the current Court (Kennedy, Souter, Stevens,
Ginsburg, Breyer) is on record as supporting the holding in Flast that
Congressional spending programs can be challenged on Establishment
Clause grounds. Two Justices (Roberts, Alito) refused to overrule
Flast in this case but did not fully endorse it either. Finally, two
Justices (Scalia, Thomas) took the radical position that Flast should
be overruled, but such a break with precedent is extremely unlikely
given the current composition of the Court and the views expressed
today.
One important qualification: The Court's decision limiting taxpayer
standing does not affect plaintiffs' ability to bring Establishment
Clause suits outside of the taxpayer standing context. Thus, even
Executive action unrelated to congressional spending programs confers
standing to sue if the plaintiff is subjected to an injury unrelated
to the plaintiff's standing as a taxpayer. "
An "Instruction Manual" for the Public Funding of
Faith? Religious Right Celebrates HEIN Ruling
President Bush glorified the HEIN ruling, saying it was "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."
The president added, "Most importantly, it is a win for the many whose
lives have been lifted by the caring touch and compassionate hearts of
these organizations."
Pat Robertson's American Center for Law and Justice (ACLJ) was
jubilant over the high court opinion. Chief Counsel Jay Sekulow
eagerly boasted to reporters, "This is a very significant victory that
sends a powerful message that atheists and others antagonistic to
religion do not get an automatic free pass to bring Establishment
Clause lawsuits. The Supreme Court got it right in determining that
the plaintiffs who challenged the President's faith-based initiative
had no legal standing to do so."
Sekulow added that the ruling in HEIN "will have serious ramifications
for separationist attempts to claim special privileges to sue as
taxpayers without showing that a law or government activity actually
injured them in any way. This is an important victory for the
judicial system and for the President's faith-based initiative. By
rejecting a claim to special treatment for atheists and other
separationists, the high court took an important step toward restoring
equity to the legal system with respect to federal challenges in the
Establishment Clause arena."
Ironically, by drawing a strict interpretation of FLASH in Monday's
decision, the high could may also be circumscribing the ability of
groups like the ACLJ to contest the use of public funds when
un-orthodox, fringe sects -- perhaps Scientology, Wicca or even Muslim
charities -- line-up at the treasury for their share of money from the
controversial Bush program. Televangelist Pat Robertson was an early
skeptic of the Bush faith-based program, and even suggested that funds
be disbursed only to established, mainstream groups. Critics quickly
pointed to Robertson's abysmal lack of legal knowledge, noting that
such discrimination would likely not pass constitutional muster.
Robertson's "Operation Blessing" then received a $500,000 grant from
the federal program, and the combative preacher quickly toned down his
criticism of the Bush scheme.
The (For Now) Minority Speaks
Despite the 5-4 ruling in HEIN, there are still members of the high
court who would extend the rights enunciated in FLAST to cases which
challenge presidential use of public tax money to subsidize
religion-based social programs.
Dissenting Justice David Souter, joined by Justices John Paul Stevens,
Stephen Breyer and Ruth Bader Ginsburg, disagreed with the
Alito/Scalia clique in its attempts to insulate spending by the
executive branch from constitutional review.
"When executive agencies spend identifiable sums of tax money for
religious purposes, no less than when Congress authorizes the same
thing, taxpayers suffer injury."
For now, the White House aid-to-religion scheme remains on track and
not subject to judicial check; but the interpretation of FLAST could
change if there is a disruption in the make-up of the Supreme Court,
and if one or more justices would be replaced. It remains unclear
that President Bush -- who up to now has enjoyed considerable success
with his appointments to the high court -- will end up naming one or
more new justices to the bench who reflect the same ideological
coloration as Alito and Scalia.
Dave Silverman, Communications Director for American Atheists, told
media that the decision in HEIN will not resolve the issue of
Executive Branch funding of religion.
"Millions of Americans, including those who are Atheists,
Freethinkers, and Humanists, won't stand idly by as our money is
laundered through the public treasury and used to support
religion-based social programs."
For further information:
http://www.supremecourtus.gov/opinions/06slipopinion.html
(Full transcript of the majority opinion and dissents in HEIN) 
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