On Friday, January 13, 2006, Judge Posner wrote an opinion for the Seventh Circuit Court of Appeals that outlines the rules regarding taxpayer standing to challenge acts that the taxpayer believes violate the establishment clause in the First Amendment. See Freedom from Religion Foundation v. Elaine L. Chao, Secretary of Department of Labor, No. 05-1130. The specific question before Judge Posner was whether Congress....
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has to specifically earmark money for the challenged program or activity before a taxpayer has standing to challenge the governmental action. In this particular case, the taxpayers argued that they had standing to challenge the funding of conferences sponsored by President Bush’s Office of Faith-Based and Community Initiatives and other federal agencies. The purpose of these conferences is to instruct religious organizations on how to obtain federal grant money. The plaintiffs argued that these conferences are designed to promote religious community organizations over secular ones.
Judge Posner held that the plaintiffs had standing to bring the action. He did not reach the merits of the dispute—whether the conferences unconstitutionally favored religious organizations. He did point out that the complaint is “wordy, vague, and in places frivolous.” Judge Posner did note that the programs sponsored by the White House must be “neutral between religion and irreligion.” Judge Posner concluded that there is no meaningful distinction between appropriations of money pursuant to a specific statute and those that are general appropriations to be used at the discretion of the executive branch. It is that conclusion that serves as the linchpin of Judge Posner’s decision.
The White House Office of Faith-Based and Community Organizations has been very active in sponsoring conferences to assist religious groups that are seeking federal grant money. These conferences have increased in frequency during the last year and are being sponsored on a regional basis. If the plaintiffs in this case now succeed on the merits, the advocates for leveling the playing field for faith-based organizations in the federal grant process will have two choices. The federal government can continue sponsoring conferences to help applicants obtain federal grant money, but the conferences will not be permitted to focus exclusively on religious organizations. Alternatively, and much more likely, private groups will take over the funding of these conferences.
There was a vigorous dissent by Judge Ripple. He essentially argues that for there to be standing in this case, the challenge must be to the exercise of Congress’ taxing and spending power. In Judge Ripple’s view, focusing on a program originating in the executive branch is not sufficient.
Stay tuned for details. We acknowledge that standing decisions are technical and dry. But the door is now open for far more significant developments.
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