Dateline: December 6, 2006, Chicago
We only need to look to Iraq to see what happens when people mix religion and politics. Unfortunately, the Bush Administration hasn’t seemed to learn the lesson from its failed efforts to build a democratic society in a locale that wants religious supremacy reflected in its government institutions. Therefore, it should come as no surprise that the Bush Administration is trying to do the same thing in the...
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United States. Last week, the United States Supreme Court said it would review the Seventh Circuit’s decision in Hein v. Freedom of Religion Foundation (previously captioned Chao v. Freedom of Religion Foundation). The court will be focused on the always-difficult question of standing to sue.
The lower court opinions don’t provide much in the way of facts—in fact the district court’s opinion is not available on its Web site or PACER. This is not surprising because the question facing the courts is one of law, not fact. Specifically, the question is whether individual taxpayers, in their capacity as such, have standing to bring a lawsuit against a member of the Executive Branch of government for violation of the First Amendment’s establishment clause. Previously, the courts had ruled that taxpayers having standing under the establishment clause to challenge congressional appropriations of money for specific programs, but the question of standing in the case of executive branch expenditures of general appropriations is unsettled. You don’t need a whole lot of facts to address that question.
However, all legal questions, no matter how technical, arise in the context of a real dispute or controversy between two parties. In this case, the Freedom from Religion Foundation was disturbed by conferences sponsored and paid for with taxpayer dollars by the White House’s Office of Faith-Based and Community Initiative. These conferences were designed to educate members of the faith-based community about how to obtain and administer federal grants under a variety of federal programs. See Linda Greenhouse, Justice to Decide if Citizens May Challenge White House’s Religion-Based Initiative, N.Y. Times, Dec. 2, 2006. Greenhouse describes some of the behavior that the folks at The Freedom from Religion Foundation objected to, writing:
For example, the complaint quoted Rod Paige, then the secretary of education, as telling the audience at a 2002 White House conference that “we are here because we have a president, who is true, is a true man of God” and who wanted to enable “good people” to “act on their spiritual imperative” by running social service programs with federal financial support.
District Court Judge John C. Shabaz ruled that the Freedom of Religious Foundation lacked standing. Normally, taxpayers lack standing when they object to government expenditures, but the courts have created an exception in the case of the First Amendment rights under the establishment clause. However, Judge Shabaz refused to extend it to expenditures by the executive branch of general appropriations to the executive branch by Congress.
The Freedom of Religion Foundation then appealed the decision to the Seventh Circuit. Judge Posner, in summarizing the case law regarding standing and state-sponsored religious activity, demonstrated that taxpayers have not had to establish much in the way of injury to withstand a claim that they lacked standing. For example, he pointed to the Supreme Court’s decision in Abington School District v. Schempp, 374 U.S. 203 (1963), writing that:
the Supreme Court had held that schoolchildren and their parents had standing to complain that the reading of the Bible and the recitation of the Lord's Prayer in the public school that the children attended violated the establishment clause. The specific injury to the plaintiffs could have been averted by the parents' taking their children out of the public school and putting them in a secular private school (or by moving to another public school district), but those options did not deprive the plaintiffs of standing because it was an injury to them to take their children out of the public school, just as it was an injury to the plaintiffs in the St. Charles case that they had to detour to avoid the direct effect on them of the alleged violation (in effect, to mitigate their damages). No such ground of standing is claimed here, however; it is taxpayer standing or nothing for these plaintiffs.
Judge Posner then cited the Flast v. Cohen, 393 U.S. 83 (1968), in which the Supreme Court ruled,
in favor of a taxpayer challenge in federal court to an alleged violation of the establishment clause. Congress had appropriated money for grants of financial assistance to private as well as public schools, and the plaintiffs complained that insofar as some of the grants had been made to parochial schools, the statute violated the establishment clause.
The Court decided in Flast the rules governing standing,
should not stand in the way of challenges to "exercises of congressional power under the taxing and spending clauses of Art. I,5 8, of the Constitution," provided that the expenditure complained of is not just "an incidental expenditure of tax funds in the administration of an essentially regulatory statute" and that "the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, 5 8." 392 U.S. at 102-03. The Court found that this two-part test was satisfied by a challenge to the use of "the taxing and spending power . . . to favor one religion over another or to support religion in general.''
Posner in, extending standing to taxpayers who want to object to expenditures by the executive branch of general appropriations by Congress, was not completely sympathetic to the Freedom of Religion Foundation. He wrote:
The complaint--all we have to go on at this stage--is wordy, vague, and in places frivolous, as where it insinuates that the President is violating the establishment clause by "tout[ing] the allegedly unique capacity of faith-based organizations to provide effective social services" as if the President were not entitled to express his opinion about such organizations.
However, Posner takes a close look at the complaint, noting that it portrays,
the conferences organized by the various Centers as propaganda vehicles for religion, and should this be proved one could not dismiss the possibility that the defendants are violating the establishment clause, because it has been interpreted to require that the government be neutral between religion and irreligion as well as between sects.
At this point, Judge Posner refuses to consider the merits of the claim. Once he determines that the Freedom of Religion Foundation’s assertion is not entirely frivolous, he returns to the question of standing. Judge Posner sees a difference between this case and other decided authorities. This case still involves an congressional appropriation (a more general one to the executive branch), but the funds in question were not earmarked for a specific purpose. Judge Posner concludes that this difference “cannot be controlling”
At the same time, Judge Posner notes that all executive branch activity is funded by congressional appropriations. That fact, alone, is not sufficient. For example, Judge Posner suggests that he would not grant standing just because the President inserted a passage in his State of the Union passage that made a favorable reference to religion. With his usual wit, Judge Posner then goes onto explain why standing should not be granted in that case:
The objection to his action would not be to any expenditure of funds for a religious purpose; and though an accountant could doubtless estimate the cost to the government of the preparations, security arrangements, etc.. involved in a State of the Union address, that cost would be no greater merely because the President had mentioned Moses rather than John Stuart Mill. In other words, the marginal or incremental cost to the taxpaying public of the alleged violation of the establishment clause would be zero.
Interestingly, Judge Posner is much more focused on the constitutionality of the program rather than a particular officials comments. He explains:
So if the plaintiffs acknowledged the underlying constitutionality of the Faith-Based and Community Initiatives program, the fact that government employees involved in the program sometimes wandered out of the neutral zone would not confer standing to sue. But since the program itself is challenged as unconstitutional, the fact that it was funded out of general rather than earmarked appropriations--that it was an executive rather than a congressional program--does not deprive taxpayers of standing to challenge it.
Of course, Secretary Paige’s comments may be indicative of what the program is trying to achieve.
We anxiously await the Supreme Court’s ruling this spring.
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Treasury regulations, any advice (but none is intended) relating to
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