Hein v. Freedom from Religion Foundation: Some Background and Initial Thoughts (Updated)

The Roberts Court has now accepted a case that could profoundly affect the enforcement of the Establishment Clause.  And Jay Hein has taken his post at the helm of the White House Office of Faith-based and Community Initiatives just in time to get his name in the case books -- the case is Hein v. Freedom from Religion Foundation (FFRF).

Although the facts of the lawsuit relate to the faith-based initiative, the Supreme Court will not decide whether aspects of the faith-based initiative are constitutional in this particular case.  Instead, it will decide whether taxpayers have the ability to challenge those aspects and perhaps many other church-state matters.  I'm sure I'll write about this case a fair amount over the next several months.  In this post, I'm simply going to offer a thumbnail sketch of the case and a few initial reactions to it.

Here's some necessary background for the case.  Generally speaking, taxpayers don't have the ability to attack the constitutionality of government spending in court because, it is believed, any harm they experience as a result of such spending is too attenuated and insignificant to justify their claims.  But taxpayers do have standing to challenge subsidies for religious activities that are exercises of congressional power under the Taxing and Spending Clause of the Constitution.  In part, this is because, as the lower court noted in this case, "the [E]stablishment [C]lause places a specific limitation on congressional appropriations, since the essence of an establishment of religion is government financial support."

Thus, the taxpayers here (those associated with FFRF) charge that the government has violated the Establishment Clause by subsidizing a series of conferences to promote the faith-based initiative.  The money used to pay for these conferences wasn't earmarked by Congress for that specific purpose.  Rather the money simply comes from funds given by Congress to the White House for general purposes. 

The Bush administration contends that taxpayers cannot challenge the use of these funds because they are general funds, not grants to religious groups pursuant to an act of Congress.  The administration argues that the executive branch's use of these funds for faith-based conferences doesn't involve Congressional taxing and spending power. 

The lower court in this case, the 7th Circuit Court of Appeals, found that the taxpayers were entitled to bring this lawsuit.  Writing for the court majority, Judge Posner said that precedent confirmed that taxpayers have the ability to challenge alleged violations of the Establishment Clause even if Congress has not earmarked funds for the program or activity being challenged. 

The lower court noted that "[t]he line proposed by the government (no standing to challenge the conferences, standing to challenge the grants) would be artificial because there is so much that executive officials could do to promote religion in ways forbidden by the [E]stablishment [C]lause (which despite its wording applies to executive as well as congressional action. . .) without making grants to religious organizations." 

Among other things, the court pointed to a hypothetical to help make its point.  "Suppose the Secretary of Homeland Security, who has unearmarked funds in his budget, decided to build a mosque and pay an Imam a salary to preach in it because the Secretary believed that federal financial assistance to Islam would reduce the likelihood of Islamic terrorism in the United States."   Taypayers should be able to challenge these things, the court said.  It concluded: "Taxpayers have standing to challenge an executive-branch program, alleged to promote religion, that is financed by a congressional appropriation, even if the program was created entirely within the executive branch, as by Presidential executive order."

At the same time, the court recognized that there are some limits here.  "[O]ur analysis . . . would not permit an individual citizen to challenge just any action of the executive with which he disagrees as a violation of the" Establishment Clause," according to the court.  The court noted, for example, that taxpayers should not be able to challenge the "government's expenditure on an armored limousine to transport the President to the Capitol to deliver the State of the Union address in which he favorably speaks of religion."

For these and other reasons, I think the lower court got it right and the U.S. Supreme Court should affirm its judgment. 

This administration's record reminds us that quite a bit can be accomplished by the executive branch to further agendas like the faith-based initiative without any mandate from Congress.  Because the faith-based initiative has been stalled in Congress, this administration has engaged in all sorts of activities that some might classify as purely "internal Executive Branch activities" supported by "general appropriations" rather than "specific spending decisions made pursuant to a challenged statutory mandate."  Thus, if the lower court is reversed, a broad swath of executive action could be impervious to taxpayer lawsuits.  In this context, I see no good reason for treating these activities differently than grants to religious groups pursuant to specific instructions from by Congress.  Indeed, if we did treat them differently, it would seem to create a serious loophole in the Establishment Clause that some would want to exploit.  Executive activities like these need to be checked, not shielded from scrutiny.

Further, the truth is that taxpayers are often the only ones who can and do sue over these sorts of things.  Someone's got to ensure that the Establishment Clause is enforced.  The Supreme Court shouldn't block their way. 

Blocking means of enforcing the Establishment Clause might be described as a stealth way to cut back on the protections of the Clause itself.  After all, it all seems so technical.  But, make no mistake, this is one very effective way to weaken the Establishment Clause. 

Why does that matter?  Among other things, the Establishment Clause's ban on government sponsorship and subsidization of religion has played a key role in protecting the rights of conscience and safeguarding the integrity of faith.  We have unparalleled religious liberty in America and a religious landscape that is rich and vital.   That is not an accident.  Our legal framework of religious freedom has made these things possible.  If we fail to enforce the Establishment Clause adequately, these values will suffer and the quality of religious liberty will be diminished.  One of the challenges this case presents, therefore, is to demonstrate how these technical issues relate to real rights and freedoms that matter to all of us.

I don't think it's a good sign that the Court has decided to take this case.  It's my guess that the justices on the Court who would read the Establishment Clause more narrowly, and executive power more broadly, are the ones who voted to hear the case.  But the briefing and oral argument could shift some opinions.  And that's the phase we turn to now.

UPDATE (2/19/07): If you are looking for links to the briefs on the merits of this case, click here.

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