Summer/Fall 2007, Vol. 10, Nos. 1 & 2

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Articles in this issue

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From the Editor:

Beating Up on the New Atheists

Romney and the Mormon Moment

The Democrats Get Religion

No More Mr. Nice Pope

Establishing Religion by Executive Order

The Gospel According to South Park

People Who Loved Tammy Faye



Establishing Religion by Executive Order  
y John Cosgriff


Leaving the big tough cases to last as usual, the U.S. Supreme Court unleashed a trifecta of 5-4 First Amendment decisions on June 25, the next-to-last day of this year’s session. These dealt with campaign finance reform, student speech, and the ability of taxpayers to challenge government violations of the separation of church and state.

Less relevant in an election cycle than campaign finance, less sexy than the “Bong Hits 4 Jesus” free speech case, and turning on a technical legal question, Hein v. Freedom from Religion Foundation garnered by far the least media attention. But its significance could outstrip both of its companion cases.

In 2001, fulfilling a campaign promise, the Bush administration created the White House Office of Faith Based & Community Initiatives (OFBCI), which encouraged religious groups to seek federal funding to provide social services. The administration claimed there was an “uneven playing field” for religious organizations to receive federal social service monies, and it organized “prayer breakfasts” to bring them to Washington and let them know how to obtain the funds.

At one of these, President Bush told attendees, “If you’re addicted to alcohol, if a faith program is able to get you off alcohol, we ought to say, hallelujah and thanks, at the federal level.” No such breakfasts were held for secular organizations.

The administration’s initiative did not sit well with the executives of the Freedom from Religion Foundation (FFRF), a Madison, Wisconsin, group dedicated to “American Freethought.” In 2004, the FFRF sued the OFBCI, claiming that the White House “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.”

In its original filing, the FFRP claimed it had the standing to sue because its members were taxpayers. But the government argued that taxpayers could challenge a federal expenditure of funds benefiting religion only if the expenditure had been authorized by Congress. (The Establishment Clause, with which the First Amendment begins, reads, “Congress shall make no law respecting an establishment of religion…”) In this case, it was an executive order of the president, not a specific act of Congress, that set up the OFBCI.

Do taxpayers have the right to challenge a program established by the Executive Branch that uses only generally allocated funds from Congress?

The FFRF based its claim on a 1968 case, Flast v. Cohen, which ruled that any taxpayer has standing to sue to prevent the disbursement of federal funds in a way that violates the Establishment Clause. Establishment Clause cases thus became the only ones where citizens do not need to show that they have sustained particular damages in order to sue.

David Stras, a University of Minnesota Law School professor who contributes to the Supreme Court blog Scotusblog, expressed a widely held reservation about Flast in a June 26 posting:

“I have never fully been able to rationalize the Flast exception: What makes the Establishment Clause so special that it warrants a special exception to the Court’s standing doctrine? How is it different than Congress earmarking funds expressly for racially discriminatory private schools? Most taxpayers would be just as angry and just as ‘harmed’ if Congress gave money to racially discriminatory schools (perhaps even more so) as they would be if Congress expressly appropriated funds to religious schools. Yet a taxpayer would have no standing in the former case and inexplicably would have standing to sue in the latter scenario.”

Although Chief Justice Earl Warren, who wrote for the majority in Flast, seemed to entertain the possibility that taxpayers would eventually acquire standing to sue in other than Establishment Clause cases, he made it clear in his opinion why the Establishment Clause in particular warranted this right: “Our history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general.”

Writing in the September 27 New York Review, NYU (and University of London) law professor Ronald Dworkin made a case for the Flast exception with admirable succinctness:

“When acts of government violate other constitutional rights, the government’s expenditure is only a means to a further injury. When government jails someone without due process, for example, it harms him not by spending money on jails but by putting him in one. The establishment clause is different: when government violates that clause by spending money in support of religion, the expenditure is not just a means to some further harm. The expenditure is itself the harm. It is part of people’s right to freedom of conscience that their government, acting on their behalf and in their name, not support any religion or religious institution.”

Explaining so technical a legal issue to readers proved to be to much of a challenge for many newspapers. “It seems like the kind of dry, legalistic dispute that only a lawyer could love,” the Los Angeles Times Andrew Coan wrote after the February 22 oral argument. “But the appearance is deceiving.”

Perhaps because of the technical complexities, there was little journalistic attention to what the administration really wanted the outcome of the case to be. While many noted a humorous exchange between Justices Scalia and Breyer over whether taxpayers would be able to buy bagels for a prayer breakfast, few reported that the administration’s purpose was to do away entirely with the taxpayer right to sue established by Flast. Only Supreme Court observer Roger Friedman, posting on Scotusblog February 28, noted that Solicitor General Paul Clement did not seem to care whether he won the case on its merits but rather “engaged in a kabuki dance to justify the overruling of Flast.”                

When the dust settled, the new conservative majority of the court had expanded the power of the Executive to reach out to religious organizations. The Boston Globe’s Michael Kranish had it just right when he pointed out June 26, “The faith-based case is particularly important, 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.”

Most reporters, however, seemed to agree with Slate’s Dahlia Lithwick, who wrote that “the enduring lesson of Hein may just be that the law is so confusing that it’s unclear whether the constitutional violation is the hypothetical prayer breakfasts or just the hypothetical bagels.”

Flast was not thrown out in its entirety (as advocated by Justices Scalia and Thomas), but its reach was severely limited. While still having standing to challenge congressional appropriations for religious purposes, taxpayers must now show direct injury in order to challenge any executive action that seems to violate the Establishment Clause.

Posting on Scotusblog June 27, Friedman made the point that the Court was increasingly reducing standing to “wallet issues,” as Scalia puts it. “Yet non-financial values are important to this country,” Friedman wrote. “The founders saw the strife that official religion brought to the polity and sought to bar it. That many of us enjoy the benefit of this vision should not mean that none of us can challenge it.”

A few newspapers voiced their approval of the decision. On June 30, the Cleveland Plain Dealer, citing the good deeds of such groups as Catholic Charities and the Salvation Army, pronounced, “In America, faith contributes to the ethical foundation of a majority of its citizens.”

More papers opposed the ruling, but wrote about it only in the general context of the Court’s overall shift to the right on rights issues. The San Francisco Chronicle was typicial, opining on July 5, “At stake is the curtailment of rights—to reproductive freedom, to public dissent, to redress in the courts—that many Americans can no longer take for granted.”

 Hein v. FFRF shows the new Roberts Court’s willingness to give the federal government more power to support religion. In his concurring opinion, Justice Anthony Kennedy (the swing vote) issued a plaintive reminder that just because the Judicial Branch of government was preventing citizens from acting, didn’t mean the other branches could turn away:

“It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations.”

After the experience of the past six years, it’s hard to place much confidence in such decision making, or such conformity.


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