DATELINE: June 26, 2007, Chicago
We have been following the lawsuit brought by the Madison, Wisconsin-based Freedom of Religion Foundation against the Bush Administration. They challenged expenditures by the Office of Faith-Based and Community Initiatives on expenditures of federal funds on training designed to assist faith-based organizations in obtaining federal-grant money, arguing that from an atheist’s point of view, this constituted a violation of the Establishment Clause of the United States Constitution. For all we know, the folks at the Freedom From Religion Foundation are correct. Unfortunately for them, they lack...
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standing to challenge the expenditure, according to the yesterday’s 5-4 Supreme Court decision in Hein v. Freedom From Religion Foundation.
Any challenge by a taxpayer to federal expenditures of money is vulnerable to a challenge on standing grounds. Freedom From Religion thought they had a change, relying on an exception created by the Supreme Court in Flast v. Cohen, 392 U. S. 83 (1968). The taxpayer in Flast alleged that the distribution of federal funds to religious schools under a federal statute violated the Establishment Clause. The Court in Flast established a two-part test for determining standing. Under part 1, the taxpayer must allege the unconstitutional
ty of the exercise of congressional power under the taxing and spending clause of Art. I, §8. Under part 2, the taxpayer must show 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, §8.
Writing for the majority, Justice Alito refused to extend Flast, limiting it to specific expenditures on legislative branch programs rather than extending it to discretionary executive branch spending of general appropriations by Congress. In his dissent, Justice Souter asked what would happen if the executive branch used general appropriations to build a church. Justice Alito responded by noting that such blatant expenditures were not before the court. That provides little solace for Freedom From Religion, but it does leave Flast in place should President Bush or a future president engage in more blatant efforts to establish a religion with taxpayer money. Had Justices Scalia and Thomas had their way, Flast would have been overturned.
The problem with the Alioto opinion is that it relies too heavily on Congress to subsequently check the executive branch by limiting future appropriations. What happens if the legislative and executive branches effectively collude to establish a religion? Although such collusion is unlikely given the current configuration of the two branches, it could become an issue at some time in the future. Yet, the Supreme Court’s decision would seem to prevent taxpayers from entering the fray to enforce fundamental constitutional rights. As too often is the case in constitutional litigation, the majority attempts to couch its decision in seemingly neutral procedural doctrines like standing, claiming that it is not reaching a substantive result. However, the failure to adequately address more blatant efforts to establish a religion through the use of taxpayer money suggests that this decision was actually based on a belief that the complained of activity was not blatant enough.
At this point, we would normally come to the end of the story. But recent ascertains by Vice President Dick Cheney may actually provide a solution. The Vice-President claims that his is a unique office, neither a part of the executive or legislative branches of the government. Clearly, the Vice-President’s office is not part of the judicial branch of government. As John Stewart, Stephen Colbert, Keith Oberman, and other constitutional scholars have noted, Vice-President Cheney has clearly laid the foundation for a new fourth branch government known as the Office of the Vice-President. We would suggest that before throwing in the towel, the Freedom From Religion Foundation seek review of their claims by the Office of the Vice-President. We will advise you in a subsequent post when the Office of Vice-President issues regulations on how file petitions for certiorari.
Internal Revenue Service - Circular 230 Disclosure: As provided for in Treasury regulations, any advice (but none is intended) relating to federal taxes that is contained in this communication is not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any plan or arrangement addressed herein.
THE FOREGOING IS NOT AND SHOULD NOT BE TAKEN AS LEGAL ADVICE. IF LEGAL ADVICE IS REQUIRED, THE NONPROFIT OR OTHER PARTY IN QUESTION SHOULD SEEK THE ADVICE OF QUALIFIED LEGAL COUNSEL. If you liked this post, please visit http://www.charitygovernance.com for a description of our training and consulting services. You will also want to acquire a copy of Jack Siegel's book, A Desktop Guide for Nonprofit Directors, Officers, and Advisors: Avoiding Trouble While Doing Good."
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