March 8, 2007 | Read Time: 4 minutes
The Bush administration, in a case that could set new ground rules for lawsuits involving the constitutional separation of church and state, last week asked the Supreme Court to quash a lawsuit challenging its program to steer more federal money to religious groups for social services.
Arguing its case in front of the Supreme Court justices, the government squared off against the Freedom From Religion Foundation, which lodged a complaint against President Bush’s efforts to promote government grants to so-called “faith-based” organizations — the first such case to reach the nation’s highest court.
The arguments did not deal with the merits of that complaint, but turned on the technical matter of whether average citizens and watchdog groups — as opposed to a party directly injured by a government action — should be allowed to sue as taxpayers. Religious, civil-liberties, atheist, and other groups are watching the case closely because of the precedent it will set.
“The ruling could decide whether a variety of government actions that are alleged to have the effect of promoting religion can be challenged,” Melissa Rogers, visiting professor of religion and public policy at Wake Forest University Divinity School, told reporters before the court met.
White House Office
The case involves President Bush’s decision to create a White House Office of Faith-Based and Community Initiatives by executive order in 2001.
The Freedom From Religion Foundation, in Madison, Wis., sued the government in 2004, charging that the office, along with satellite offices within federal agencies, violated the First Amendment provision that prohibits Congress from making laws “regarding an establishment of religion.” It said the government was sponsoring conferences and supervising federal spending that sent the message that “religion is favored, preferred, and promoted over other beliefs and non-belief.”
A federal district court ruled that the group did not have the legal right, or standing, to sue. But that decision was reversed by the Seventh U.S. Circuit Court of Appeals, in Chicago, leading the government to ask the Supreme Court to hear the case.
The Supreme Court has generally held that taxpayers cannot challenge the constitutionality of federal spending because their connection to the alleged damage is too remote.
However, it made an exception in Flast v. Cohen, a 1968 case that said taxpayers have the right to lodge a church-state challenge if it involves constitutional limits on Congress’s ability to tax and spend.
Solicitor General Paul D. Clement told the Supreme Court justices that the Flast ruling carved out a narrow exception that did not give taxpayers the right to sue over executive-branch activities paid for by money from the White House’s general operating budget, rather than by Congressional appropriations going directly to religious organizations.
But Andrew J. Pincus, representing the Freedom From Religion Foundation, said the government was trying to “draw arbitrary lines” by saying that Flast did not apply to the activities of the White House office.
Numerous advocacy groups filed legal briefs on both sides of the argument. Several Christian groups supported the government, including the American Center for Law and Justice, We Care America, and the Christian Legal Society. They were joined by 12 states that fear they could face lawsuits for holding conferences to promote programs that finance religious charities.
The Freedom From Religion Foundation won support from groups including the American Civil Liberties Union, Americans United for Separation of Church and State, and the Anti-Defamation League.
Both sides portrayed the case as a battleground for the larger issue of how to interpret the First Amendment.
Benjamin W. Bull, chief counsel for the Alliance Defense Fund, which represents We Care America, said that if the court allows this lawsuit to go forward, it could “open the floodgates” to lawsuits over other executive-branch actions, noting that presidents, for example, have historically invoked religion in inaugural addresses and other important speeches.
But Judith E. Schaeffer, associate legal director for the People for the American Way Foundation, said Americans must have the right to be free of government coercion to support religious beliefs with which they do not agree. “That right can simply be ignored or abused by government officials if there is no way for individuals to seek a remedy in the federal courts,” she said in a statement.
Information about the case, Hein v. Freedom From Religion Foundation, can be found on the Web site of the Roundtable on Religion and Social Welfare Policy at http://www.religionandsocialpolicy.org/resources/HeinvFFRF.cfm.
