Supreme Court Taking It on Faith
cyncooper printable version print page     Bookmark and Share
Sat Feb 03, 2007 at 12:39:02 AM EST
Later this month, on February 28, the U.S. Supreme Court will hear oral arguments on its first "faith" case to be tested in front of the new bench that includes President Bush’s two appointees -- Chief Justice John Roberts and Associate Justice Samuel Alito. The case, known as Hein v. Freedom From Religion Foundation (FFRF), is a challenge to Bush’s faith-based funding program.

The case dates to 2004, and while the issue before the court is somewhat narrow, the litigation is definitely an example of people taking action to stop the steady religious takeover of government-funded service programs. According to White House figures, $2.15 billion in taxpayer funds went to faith-based institutions in 2005.

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:]

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.

What will be decided by the Supreme Court is whether FFRF can continue with this lawsuit -- "a relatively narrow question," said Barry W. Lynn, executive director of Americans United for Separation of Chuch and State, "but it's quite important." He added: "It's essential that the justices uphold the principle that taxpayers can go to court when their money is being used to advance religion." Americans United filed an amicus brief on Friday.

Of course, the Christian Legal Society has also filed an amicus, and several states are supporting the Bush administration.

The ability of citizens to challenge the Bush faith-based initiatives is already difficult; what happens at the nation's top court later this month will determine the future.

Three precedents from the Supreme Court exist on the question of standing to challenge the government's funding of religious activities, as the Freedom From Religion Foundation explains:

Flast v. Cohen (1968) permitted a taxpayer challenge of federal assistance to religious schools. The court ruled that challenges could be heard that question the use of "the taxing and spending power . . . to favor one religion over another or to support religion in general."

Bowen v. Kendrick (1988) also upheld taxpayers' standing to challenge grants by a federal agency to religious institutions. The court ruled that taxpayers must simply show that Congressional taxing and spending were necessary for the violation to occur.

In a third case, Valley Forge Christian College v. Americans United for Separation of Church & State (1982), the Supreme Court denied standing of taxpayers to sue over transfer of an army hospital to a religious group. This was the case cited as prevailing by the lower court judge who threw out the Foundation's federal lawsuit.

by cyncooper on Sat Feb 03, 2007 at 11:12:16 AM EST

The Freedom from Religion Foundation had its beginnings in fighting for the legalization of abortion and then for full access to abortion.  The founders realized that women's freedoms would not be safe unless the underlying assault of fundamentalist religions on women's autonomy were addressed.

As Annie Laurie Gaylor said in a speech in 1998:

The group I represent, the Freedom From Religion Foundation, came into existence in part because of the abortion movement, because of the organized religious opposition to abortion rights. My mother Anne Gaylor in working for the repeal of antiabortion laws in Wisconsin in the late sixties soon realized that the true enemy of abortion rights and all women's rights was organized religion.

I wish everyone fighting for women's rights -- and for religious freedom -- understood how deep the connections run.

by cyncooper on Sat Feb 03, 2007 at 11:19:16 AM EST

That's the reason I'm here instead of somewhere else -- because that connection is the most important single aspect of the entire issue.

Great post, as always.

by moiv on Mon Feb 05, 2007 at 12:45:37 AM EST

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