The case arose from a challenge by FFRF, a Madison, Wisconsin non-profit organization. The group has brought nine legal actions to challenge faith-based funding and violations of the Establishment Clause.

[All of the legal documents can be found on the FFRF website, but linking is difficult. Put this site into a browser and follow the internal links: http://ffrf.org]

Ordinarily, taxpayers have no right to go to court to challenge government funding in court, say, for example, if you don't want your tax dollars to go to the military -- out of luck. You're supposed to replace your Congressional members instead. But there is a tiny exception, permitting lawsuits when the support is for religious funding. The precedent comes from a Supreme Court case from 1968 which pointed to deep fear by the founders of government abuse of its spending power for religious ends. It's under this exception that FFRF sued.

The government would like to plaster over this exception, and the Freediom from Religion Foundation is trying to hold it open and use it to challenge the president's rampant "faith-based" funding programs.

FFRF specifically challenged that part of the faith-based funding that sets up, through the White House and by executive order, special centers to help faith-based organizations apply for grants. It shows favoritism toward faith-based organizations, said FFRF. And, since Congress didn't actually appropriate the money for this purpose -- it came through an executive order by the President -- voting out your Congressional member won't solve the problem.

The case began in 2004 when the founder of FFRF, Anne Nicol Gaylor, co-president Annie Laurie Gaylor (her daughter), and Dan Barker (Annie’s husband and a former fundamentalist preacher, now reformed), filed a lawsuit as taxpayers challenging expenditures.

Initiatlly the case was thrown out at the district court level by Judge John Shabaz, who found that the taxpayers had no standing to bring the lawsuit. But it was reinstated by the Seventh Circuit Court of Appeals, with an opinion written by the highly-respected Judge Richard Posner. Posner thought the taxpayers had standing to bring the lawsuit. Otherwise, how could people stop a blatantly religious grant through the executive office, he said.

The executive office, i.e., the president, did not take kindly to this, and appealed. It was only added to the Supreme Court docket in early December 2006. The name of "Hein" on the case comes from Jay F. Hein, who is the director of the White House Office of Faith-Based and Community Initiatives (the heading on the case has changed with changes in directors).

FFRF specifically targeted government agency conferences established by executive order and described as approaching "revivals." They are supposed to help faith-based organizations apply for government grants. FFRF explained in a press release: "Posner wrote that it must be left to judges to decide whether the initiative and conference amount to 'propaganda vehicles for religion.'"

The original FFRF complaint filed in court laid it out this way:

“25. The defendants' actions have violated the fundamental principle of the separation of church and state by using federal taxpayer appropriations to support activities that endorse religion and give faith-based organizations preferred positions as political insiders.

26. Defendants' actions include the funded support of national and regional conferences, at which faith-based organizations are singled out as particularly worthy of federal funding because of their religious orientation, and the belief in God is extolled as distinguishing the claimed effectiveness of faith-based social services.

27. The defendants, including at national and regional conferences, send messages to non-adherents of religious belief that they are outsiders, not full members of the political community, and the defendants send an accompanying message to adherents of religious belief that they are insiders, favored members of the political community.

28. A reasonable observer of the defendants' actions and listener to their words would perceive the defendants to be endorsing religious belief over non-belief.

29. The defendants' actions and/or words further give support to and the appearance of endorsing a preference for the funding of faith-based organizations.