WASHINGTON (ABP) — A closely divided Supreme Court ruled June 25 that a group of taxpayers do not have the legal standing to challenge President Bush's promotion of religious charities just because they think it violates the First Amendment.
In a 5-4 ruling that could have implications for the courts' ability to hear religion lawsuits, the majority said that status as a taxpayer does not qualify one to sue over federal expenditures not clearly tied to congressional action, even when those expenditures violate religious freedom.
The decision in Hein v. Freedom From Religion Foundation (No. 06-157) is a victory for the White House and something of a setback for advocates of strong church-state separation. It also marks the first time the Supreme Court has dealt with President Bush's efforts to expand the government's ability to fund social services through churches and other religious charities.
“This ruling is a win for the thousands of community and faith-based nonprofits all across the country that have partnered with government at all levels to serve their neighbors,” Bush said in a statement the White House released after the decision. “Most importantly, it is a win for the many whose lives have been lifted by the caring touch and compassionate hearts of these organizations.”
Justice Samuel Alito, who authored the controlling plurality opinion in the case, said the court believed the lawsuit was not allowable under the court's own precedents.
“The link between congressional action and constitutional violation that supported taxpayer standing in Flast [v. Cohen] is missing here,” he wrote. He referred to a court precedent in a similar case that allowed average taxpayers to challenge government expenditures to religious groups in violation of the First Amendment's establishment clause.
But in the Hein case, Alito added, the taxpayers accusing the White House of unconstitutionality “do not challenge any specific congressional action or appropriation; nor do they ask the court to invalidate any congressional enactment or legislatively created program as unconstitutional.”
The Wisconsin-based Freedom From Religion Foundation sued the White House Office of Faith-Based and Community Initiatives, headed by director Jay Hein. The suit claimed the office and its actions violate the Constitution's ban on government establishment of religion.
A federal district court dismissed the suit, saying the plaintiffs did not have standing to argue the case in court. But the 7th U.S. Circuit Court of Appeals reversed that ruling, saying the foundation and three of its members, as taxpayers, had the right to challenge White House allocations used to fund conferences that promoted the faith-based initiative.
The appeals court said the foundation had taxpayer standing to challenge the practice because the White House have been promoting religion via the conferences, even though Congress did not specifically appropriate the money to any religious groups.
The Supreme Court has long held that taxpayers do not generally have standing to sue the government over how it disburses funds because the connection between individual taxpayer contributions and expenditures is too remote. Individuals who sue the government must prove a specific “injury,” in legal terms, from the governmental act.
In 1968, the court recognized a special exception to the generalized standing doctrine in regard to establishment-clause cases. In Flast v. Cohen, the court said the exception was reasonable because of the special history of the clause, which bars government support for religion. Many of the Constitution's framers — such as James Madison — argued forcefully against European-style state support and financing of churches.
But in the latest decision, the majority noted Congress did not specifically authorize the expenditures — instead, they came from general funds that Congress provided to Bush. Therefore, the court said, the plaintiffs didn't meet the Flast decision's test requiring a clear nexus between congressional action and the government expenditure alleged to violate the establishment clause.
“These appropriations did not expressly authorize, direct or even mention the expenditures of which respondents complain,” Alito wrote. “Those expenditures resulted from executive discretion, not congressional action.”
Chief Justice John Roberts and associate justices Anthony Kennedy, Antonin Scalia and Clarence Thomas joined Alito in voting with the majority.
However, Scalia and Thomas joined their colleagues only in the judgment in favor of the White House. In a separate opinion, they criticized Alito, Kennedy and Roberts' understanding of the Flast exception as “meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future.”
Scalia argued that the court should go one of two ways. The court could follow the Flast decision to its logical conclusion and say taxpayers have standing to file a lawsuit against any government expenditure that violates the establishment clause. Or, he reasoned, the court could overrule the Flast exception to general standing requirements altogether.
“The rule of law is ill-served by forcing lawyers and judges to make arguments that deaden the soul of the law, which is logic and reason,” Scalia wrote. “Either Flast was correct, and must be accorded the wide application that it logically dictates, or it was not, and must be abandoned in its entirety.”
Scalia went on to argue that the court should have chosen the latter option, saying taxpayers should have no more right to challenge alleged violations of the establishment clause than they do any other government expenditure they believe unconstitutional. Several conservative Christian groups, in friend-of-the-court briefs, had urged the justices to use the Hein case to get rid of the taxpayer exception altogether.
Had that happened, other religious and church-state separationist groups argued, it would have seriously curtailed anyone's ability to sue government entities for violating the establishment clause.
The four justices who voted to uphold the lower court's decision in Hein, meanwhile, agreed with Scalia's assertion that the controlling plurality opinion made a nonsensical distinction between unconstitutional executive-branch action and congressional action.
“When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injury,” wrote Justice David Souter in a dissenting opinion joined by justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer.
“It would surely violate the establishment clause for the Department of Health and Human Services to draw on a general appropriation to build a chapel for weekly church services, and for good reason: if the executive [branch] could accomplish through the exercise of discretion exactly what Congress cannot do through legislation, establishment-clause protection would melt away,” Souter wrote.
The minority noted that a broad reading of the Flast exception is consistent with the purposes of the establishment clause — which resulted from the deep distrust many constitutional framers held for government-supported religion.
All taxpayers suffered “sufficient injury” from tax-supported religion to give them standing to try to stop such expenditures in a court of law, the minority said.
The decision marks the first time since Alito and Roberts joined the high court that they ruled on a case directly implicating the establishment clause.
One Baptist religious-liberty expert, who helped write a friend-of-the-court brief in favor of the Freedom From Religion Foundation in the case, said Alito and the plurality seemed most concerned with the mechanical aspects of the Flast decision. Meanwhile, the minority seemed most concerned with protecting “freedom of conscience.”
“That the executive branch is the alleged violator does not lessen the injury to the plaintiff,” said Holly Hollman, general counsel of the Baptist Joint Committee for Religious Liberty. “While taxpayer suits may be more limited under Hein, the constitutional duty to protect religious liberty and prevent government from promoting or interfering with religion applies to the executive branch, as well as to the legislative branch.”
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Read more:
Supreme Court decision in Hein v. Freedom From Religion Foundation
Combative high court hears arguments over ability to file religion lawsuits (2/28)
Experts: More danger than meets eye in upcoming Supreme Court case (2/22)
Supreme Court to decide if taxpayers can sue over Bush's faith-based plan (12/4/2006)