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On February 28, the Supreme Court will hear oral argument in Hein v. Freedom from Religion Foundation. Specifically at issue is whether taxpayers can bring a legal challenge to the Bush administration’s Faith-Based Initiatives. Existing precedent in Flast v. Cohen says taxpayers have standing to challenge government spending in violation of the Establishment Clause.
It appears that argument before the Court will not be structured so much as to argue the merit or demerit of Hein v. Freedom, but to attempt to shift sufficient focus on/to the content and arguments contained in the amicus briefs is clearly a back door approach to achieving an end. The approach is not to be condoned but condemned as an act of legal subterfuge on the part of far right extremist forces.
The intent is to argue boldly that Flast v. Cohen is inconsistent with principles of federalism and power separation, the states' brief calls for the Supreme Court to explicitly overrule Flast, and to jettison the doctrine of taxpayer standing in Establishment Clause cases. That would be a serious error!
One the problems we have the moment is that we only conjecture, as yet, at the nature and direction of “The Roberts Court”. There is insufficient extant history to do little more than pundit-like analysis and prediction. That condition will change. We do know that Chief Justice Roberts is desirous of having decisions become “more united” and more abbreviated in there length. There is potential for serious mischief here if the intent is to move the docket more rapidly at the expense of thorough deliberation and decision crafting. Should that become the case the blogosphere will come to life as well as the traditional media.
If we are correct in our appraisal of the Supreme Court's likely treatment of the issue of taxpayer standing, the case of Hein v. FFRF will break little new ground and have little effect on other Establishment Clause litigation.
If, however, a group of five Justices agrees to cut back significantly on Flast's special consideration for taxpayers in Establishment Clause litigation, Hein v. FFRF could mark the beginning of a long and deep retrenchment in such litigation, in which cases about expenditures (federal, state, and local) and cases about government religious expression become considerably more difficult for plaintiffs to bring through the courthouse door.
Such a retrenchment might embolden government entities to take steps that the current law of the Establishment Clause appears to forbid. For example, a governor might sponsor a religious revival meeting using funds appropriated to her office for general use. In that sense, the law of standing to raise Establishment Clause issues is a proxy for the underlying constraints of the Clause itself.
The stakes in Hein v. FFRF may thus be considerably larger than first appear from the seemingly technical qualities of the issue presented
“Religious Right groups are using this case as a vehicle to urge the Court to eliminate taxpayer standing, which would significantly undermine the ability of Americans to obtain access to the courts to vindicate their constitutional right to religious liberty.”
Precinct Master, Ed. Dickau concurs…
The meeting went well, was informative, concise and controlled by time constraints, which had they not existed, an all out battle royal over the broader base issue of “Separation of Church and States Issues” would have ensued.
The political content of that debate would have been handled well by only Ms. Shaeffer on the panel. A front side seat provided ample observation of the other panelist’s abilities and emotions. Mr. Bull could have easily drawn to a rousing debate. Extremists on both sides of the issue were present, itching for a good fight if the occasion permitted; some took place outside the session!
There was also positive interaction with the Press subsequent to the session.
Though there is some repetition of verbiage contained within, that is a matter of presenting documents with their full integrity as opposed to a cherry picking presentation. I have provided as full a “RIGHT WING WATCH” presentation as I feel appropriate for this post, and the Alliance Defense Fund Organization. Internal URL links will furnish about anything you could wish to explore further.
PFAW Foundation
To: "Ed. Dickau"
Dear Ed.,
You’re invited to the National Press Club this Wednesday for a special briefing on an important church-state case currently pending before the Supreme Court, Hein v. Freedom from Religion Foundation. The event is being presented by the American Constitution Society for Law and Policy (ACS) and will feature, among others, PFAW Foundation’s Associate Legal Director, Judith E. Schaeffer.
On February 28, the Supreme Court will hear oral argument in Hein v. Freedom from Religion Foundation. Specifically at issue is whether taxpayers can bring a legal challenge to the Bush administration’s Faith-Based Initiatives. Existing precedent in Flast v. Cohen says taxpayers have standing to challenge government spending in violation of the Establishment Clause.
Religious Right groups are using this case as a vehicle to urge the Court to eliminate taxpayer standing, which would significantly undermine the ability of Americans to obtain access to the courts to vindicate their constitutional right to religious liberty. The speakers are experts in the field of church-state matters, including several representing amici on both sides of the litigation. The panelists will present a variety of perspectives on the case and its broader implications.The panel will feature:
Richard Katskee, Assistant Legal Director, Americans United for the Separation of Church and State
Judith E. Schaeffer, Associate Legal Director, People For the American Way Foundation
Benjamin W. Bull, Chief Counsel, Alliance Defense Fund
(INSERT OF CREDENTIALS OF BENJAMIN W. BULL AND ASSOCIATES) _egd_
Benjamin W. Bull
Chief Counsel, The Alliance Defense Fund, Inc.
Senior Editor, The Community Defense Reporter
Former Board Member, Community Defense Counsel
Former Director, European Center for Law and Justice, Strasbourg, France Former Senior Trial Counsel, The American Center for Law and Justice, Virginia Beach, Virginia
Former Legal Counsel, Citizens for Decency Through Law, Inc.
Former Assistant City Attorney, City of Norfolk, Virginia
Former Senior Assistant County Attorney, Fairfax County, Virginia
Alan E. Sears
President and General Counsel, The Alliance Defense Fund, Inc.
Former Board Member, Community Defense Counsel
Former Legal Counsel, Citizens for Decency Through Law, Inc.
Former Assistant U.S. Attorney and Chief of the Criminal Section, Western District of Kentucky, U.S. Department of Justice
Former Executive Director, Attorney General's Commission on Pornography, U.S. Department of Justice
Former Assistant Corporation Counsel, City of Ashland, Kentucky
Bruce A. Taylor
Senior Counsel to the Assistant Attorney General, Criminal Division, U.S. Department of Justice
Former President and Chief Counsel, National Law Center for Children and Families
Senior Attorney, Child Exploitation and Obscenity Section, U.S. Department of Justice
Former Assistant Attorney General, State of Arizona
Former General Counsel, Citizens for Decency Through Law, Inc.
Former Assistant Police Prosecutor and Assistant Director of Law, City of Cleveland, Ohio
Len L. Munsil
President and General Counsel, The Center for Arizona Policy
Former Executive Director and General Counsel, Community Defense Counsel
Former Legal Counsel, Citizens for Decency Through Law, Inc.
Moderator, Melissa Rogers, Visiting Professor of Religion and Public Policy, Wake Forest University Divinity School
When: Wednesday, February 21 12:30 - 2:00 pm
Where: First Amendment Lounge The National Press Club 13th Floor, 529 14th Street NW, Washington, DC 20045
Lunch is free and will be available beginning at 12:00.
To RSVP, please click here. If you have any questions regarding this event, please call 202-393-6181 or e-mail events@acslaw.org.
-- People For the American Way Foundation
THE ALLIANCE DEFENSE FUND.ORG (RIGHT WING)
Defending Religious Freedom
The Power of Alliance
Free exercise of religion is the first and most fundamental right of Americans protected in the Bill of Rights. It is the most basic and inalienable of all human rights.However, the right to freely exercise one's faith has never been more threatened in our nation than it is today. And the rights of Christians are especially vulnerable.For more than 50 years, the ACLU and other radical activist groups have attempted to eliminate public expression of our nation's faith and heritage. They have done this through fear, intimidation, disinformation, and the filing of lawsuits (or threats of lawsuits) that would:
Eliminate Christian and historic faith symbols from government documents, buildings, and monuments
Ban public prayer in schools and at school functions
Deny Christians the right to use public facilities that are open to other groups
Prevent Christians from expressing their faith in the workplace
Through attacks like these, the ACLU and its allies have sought to limit the spread and influence of the Gospel in the United States.The Alliance Defense Fund aims to keep that door open by providing case funding, strategy and coordination, attorney training, and litigation to defend religious freedom.By God's grace, we are succeeding.
We have helped win numerous court victories that:
Stopped discrimination against Christian employees
Enabled Christian groups to use public facilities on the same terms as other organizations
Preserved historic and Christian acknowledgement in public places
Despite these and many other successes, a great deal of work remains. By supporting the Alliance Defense Fund, you can help win the battle for religious liberty.
Related information
Read about victories defending religious freedom.
THEIR MINISTRY ALLIES
Campus Crusade for Christ
Christ@Work
Christian Service Missions
Coral Ridge Ministries
Crown Ministries
Exodus Faith Ministries
Focus on the Family
Generation X-cel
Institute in Basic Life Principles
InterVarsity Christian Fellowship
Midwestern Baptist Theological Seminary
National Religious Broadcasters
Toward Tradition
LEGAL ORGANIZATIONS
Advocates International
American Center for Law and Justice
Americans United for Life
American Liberties Institute
Amicus Law Association (Canadian)
Center for Inalienable Rights
Christian Law Association
Christian Legal Defense Fund
Christian Legal Fellowship, Canada
Christian Legal Service
Christian Legal Society, Center for Law & Religious Freedom
Citizens for the Preservation of Constitutional Rights
European Defense Fund
Federalist Society
Home School Legal Defense Association
Home School Legal Defense, Canada
Horatio Storer Foundation
Institute for Justice
James Madison Center for Free Speech
Judicial Watch
Justice Advocates
Justice Fellowship
Justice for All
Law and Liberty Institute
Liberty Legal Institute
Life Legal Defense Foundation
Marriage Law Project
National Family Legal Foundations
National Law Center for Children and Families
National Legal Center for the Medically Dependent
National Legal Foundation
National Right to Life
Neighborhood Christian Legal Clinic
North Star Civil Rights Defense Association
Northstar Legal Center
Oklahoma Center for Religious Liberty
Pacific Justice Institute
Patrick Henry Christian Legal Alliance
Pro-Family Law Center of Abiding Truth Ministries
Public Justice Advocates (f.k.a. Western Center for Law and Religious Freedom)
Texas Justice Foundation
Thomas More Center for Law and Justice
United States Justice Foundation
BOARD OF DIRECTORS
ADF has been blessed with men and women of exceptional capacity, background, and experience, who serve on the board of directors in a completely unpaid, volunteer basis. With backgrounds ranging from high military command to national ministry leadership, media and journalism to business and entrepreneurial ventures, our board members are diverse in their background but united in their commitment to faith, religious liberty, the sanctity of life, and the preservation of marriage and the family.These servants have made themselves available to accomplish much at this time! (Esther 4:14). CHAPMAN COX(Vice Chairman)Retired attorneyFormer General Counsel, U.S. Department of DefenseALLEN GINSBORGPresidentPoudre Partners Inc.CLARK HOLLINGSWORTHRetired certified public accountantFormer Chief Operating Officer, Family Life MinistriesC. BRADLEY KEIRNES(Chairman)PrincipalKeirnes Companies, LLPMARK MADDOUX(Secretary-Treasurer)PresidentUSA Radio NetworkRICHARD MASONRetired corporate executiveFormer Chief Executive Officer, Motor Racing OutreachTOM MINNERYSenior Vice President of Government and Public PolicyFocus on the FamilyDALE NABBRetired corporate executiveFormer Chief Executive Officer, PSPATOM ROGEBERGSenior Vice President of Communications and MarketingFellowship of Christian AthletesRICHARD TESCHDirector of Corporate and Community AffairsCampus Crusade for Christ International
What is the Alliance Defense Fund, and why does Bill O'Reilly advocate donating to it?
On the October 11 broadcast of his nationally syndicated radio program, Bill O'Reilly spoke with a caller who asked "[h]ow do people like me ... fight people like" the American Civil Liberties Union (ACLU). O'Reilly replied: "Well, you fight them by giving money to the Alliance Defense Fund [ADF] out in Phoenix, Arizona. Alliance Defense Fund is set up to be the anecdote [sic] to the ACLU. They come in and fight them in court. So while the left wing donates to the ACLU, traditional Americans [can donate to the ADF] -- and you don't have to be conservative. You see, a lot of liberals don't like this ACLU."
Despite O'Reilly's characterization of the ADF as a group that non-conservatives might want to support, the organization was founded by influential leaders of the Christian Right to pursue a conservative political agenda.
The organization
ADF is classified as a 501(c)(3) public charity. According to the ADF website, the group is "a legal alliance defending the right to hear and speak the Truth through strategy, training, funding, and litigation." ADF defines this "Truth" according to a conservative Christian template, characterizing itself as "a servant organization that provides the resources that will keep the door open for the spread of the Gospel through the legal defense and advocacy of religious freedom, the sanctity of human life, and traditional family values."
The founders
ADF lists as its founders several prominent leaders of the Christian Right:
James C. Dobson, founder of Focus on the Family.
D. James Kennedy, founder of Coral Ridge Ministries.
The late William R. Bright, founder of Campus Crusade for Christ.
The late Larry Burkett, co-founder of Crown Financial Ministries, which teaches followers to "learn, apply, and teach God's financial principles so they may know Christ more intimately, be free to serve Him, and help fund the Great Commission."
The late Marlin Maddoux, former host of Point of View, which claims to be America's "most popular live Christian call-in show," and founder of the conservative USA Radio Network.
Current leadership
ADF is currently led by president, CEO, and general counsel Alan E. Sears, who held numerous positions in the Reagan administration including director of the attorney general's commission on pornography and assistant U.S. attorney in the Department of Justice. Sears is also a columnist for conservative websites Townhall.com and WorldNetDaily.com. He has co-authored two books with Craig J. Osten, the ADF's vice president of presidential communications and research: The ACLU vs. America: Exposing the Agenda to Redefine Moral Values (Broadman & Holman Publishers, 2005) and The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today (Broadman & Holman, 2003). In The Homosexual Agenda, Sears and Osten write:
Unfortunately, if many homosexual activists have their way, Christ's message of redemptive love will be silenced and those who share it through the preaching of the uncensored words of Scripture will be punished. ...The effort of homosexual activists to convince Americans to tolerate (i.e., "affirm") homosexual behavior tramples religious freedom and leaves a trail of broken bodies in the dust.
ADF's board of directors includes several notable members of the Christian Right, including:
Tom Minnery (chairman), vice president of government and public policy for Focus on the Family. According to a May 2 article in the Colorado Springs Gazette, Minnery once stated that "[h]omosexuality is a mental disorder and can be cured. ... It's a psychological issue, rooted mostly in early childhood. ... But thousands have come out of it."
Clark Hollingsworth (vice chairman), executive vice president and chief operating officer for Family Life Ministries. Hollingsworth has in the past been affiliated with Coral Ridge Ministries, and according to the website of the National Alliance Against Christian Discrimination (NAACD), Hollingsworth issued the following statement in support of NAACD:
We agree with you that there is a serious need for the Christian equivalent of an anti-defamation league [sic]. ... Christians are the only ones that it is acceptable to criticize and ridicule in our country today. The movie industry, the television industry, the newspaper media, the anti-virtue forces in our nation, and the homosexual activists are all actively engaged in Christian bashing. May God bless your and your efforts.
Tom Rogeberg, executive vice president and chief communications officer of Coral Ridge Ministries.
Rick Tesch, director of corporate and community affairs for Campus Crusade for Christ.
Agenda
ADF focuses on three main issues:
"Guarding the Sanctity of Human Life": ADF is opposed to all forms of abortion and euthanasia.
"Protecting Family Values": ADF states that "God has defined marriage as one man married to one woman." ADF opposes same-sex marriage, adoption by same-sex couples, allowing gays and lesbians to serve in the military, and "[e]xpos[ing] children to explicit sex education materials contrary to parental approval.
"Defending Religious Freedom": ADF opposes efforts by "the ACLU and other radical activist groups ... to eliminate public expression of our nation's faith and heritage." Among other goals, ADF seeks to "[preserve] historic and Christian acknowledgement in public places" and legalize prayer in public schools and at public school functions.
Those considering supporting ADF may be interested in their previous activities, which include:
Representing Stephen Williams, a Cupertino, California, schoolteacher who filed suit against the Cupertino Union School District claiming that his teaching was being restricted because he was a Christian. The ADF misleadingly claimed in a November 2004 press release, headlined "Declaration of Independence Banned from Classroom," that Williams was prohibited from issuing supplemental handouts to his students, including excerpts from the Declaration of Independence, "because the historical documents contain some references to God and religion" -- spin repeated by Fox News. In fact, parents had complained to the school that Williams's teaching "crossed the line into evangelizing," and the handouts Williams had prepared were excerpts of only religious references, not the full documents from which the excerpts came. The ADF withdrew the lawsuit in August with both sides agreeing to dismiss all claims and cover their own legal expenses; no school policies were altered. Williams resigned from the school district a few days later.
The "Christmas Project." Claiming that "[m]isconceptions and controversy about the so-called 'separation of church and state' has led many public officials to 'remove Christ from Christmas,' " the ADF has pursued legal action and other activities over perceived attempts by "government officials to censor Christmas carols, eliminate all references to Christmas, or silence those who celebrate Christ's birth." The project "includes the mobilization of a nationwide force of more than 700 allied attorneys available to combat any attempts to censor the celebration of Christmas in schools and on public property." The ADF also "contacted more than 6,700 school districts across the nation" in late 2004 with the goal of "explaining the law with regard to the celebration of Christmas in the public schools." Fox News has hyped legal actions filed by the ADF and other conservative legal groups in order to portray a widespread "attack on Christmas" by "secular progressives."
ADF is currently representing the Christian ministry Love in Action International, Inc., which counsels gays and lesbians on "leaving" homosexuality, in a lawsuit filed against the state of Tennessee. Love In Action sued the state, alleging religious discrimination after the state Department of Mental Health and Developmental Disabilities decided that Love in Action needed a state license to offer some of the services it was providing.
From the October 11 broadcast of Westwood One's The Radio Factor with Bill O'Reilly:
O'REILLY: You like the country. You respect the country. You think it's a good place to live, and it's done well by you, correct?
CALLER: It has.
O'REILLY: Well, then I perfectly understand, because the ACLU does not like the country and wants a dramatically new country. They push the same buttons with me, [caller]. Go ahead.
CALLER: So how do people like me -- how do we fight people like them?
O'REILLY: Well, you fight them by giving money to the Alliance Defense Fund out in Phoenix, Arizona. Alliance Defense Fund is set up to be the anecdote [sic] to the ACLU. They come in and fight them in court. So while the left wing donates to the ACLU, traditional Americans -- and you don't have to be conservative. You see, a lot of liberals don't like this ACLU.
O'Reilly has had a longtime antipathy toward the ACLU, previously describing the group as "a terrorist group" and America's "most dangerous organization ... second next to Al Qaeda" and claiming that "[n]o organization enables terrorism as much as the ACLU."
PFAW (PEOPLE FOR THE AMERICAN WAY RIGHT WING WATCH ANALYSIS)
HOME LINK URL PFAW: http://www.pfaw.org/pfaw/general
Right Wing Organizations
EYE ON THE RIGHT: RIGHT WING WATCH ANALYSIS
Alliance Defense Fund
Founded by a group of high-profile Religious Right leaders such as D. James Kennedy and James Dobson, the Alliance Defense Fund (ADF) sees itself as a counter to the ACLU. As a legal group, it assists and augments the efforts of other right-wing groups to “keep the door open for the spread of the Gospel.” The ADF has been active on issues including pushing “marriage protection,” exposing the “homosexual agenda” and fighting the supposed “war on Christmas.” Alliance Defense Fund15333 N. Pima Road - Suite 165Scottsdale AZ 85260Website:
www.alliancedefensefund.orgFounders: Bill Bright, founder of Campus Crusade for Christ; Larry Burkett, founder of Christian Financial Concepts; Rev. James Dobson, founder of Focus on the Family; Rev. D. James Kennedy, founder of Coral Ridge Ministries; Marlin Maddoux, President of International Christian Media; Don Wildmon, founder of American Family Association; and 25+ other ministries.Founded: 1994 President and General Counsel: Alan Sears Officers, Directors, Trustees, and Key Employees: Alan Sears, Wayne N. Swindler, Marv McCarthyOther Staff: 38 employeesFinances: $15,744,101 (2003 budget)Major Donors: Bill and Berniece Grewcock Foundation, Richard and Helen DeVos Foundation, Bradley Foundation.
Principal Issues
Background
Alan Sears’ Background
Quotes
Principal Issues
The Alliance Defense Fund (ADF) is a Christian legal firm established by more than 30 Christian ministries to help defend “family values” and work against the ACLU (American Civil Liberties Union).
ADF defines itself by its ability to strategize and coordinate with lawyers all over the United States. Lawyers who sign up for their “Blackstone Legal Institute” are expected to donate 450 pro bono hours over a three year period.
ADF has coordinated more than 750 lawyers and 125 right-wing organizations, and many conservative ministries on behalf of ADF-defined Christian legal issues.
ADF claims 25 “victories” before the Supreme Court, including: Boy Scouts of America v. Dale (2000), which allowed the Boy Scouts to fire a Scout Leader due solely to his sexual orientation; United States v. American Library Association (2003), in which the Court voted to allow the federal government to withhold federal funds if libraries did not comply with the filtering called for by the Children’s Internet Protection Act of 2000; and Zelman v. Simmons-Harris (2002), upheld Ohio’s school voucher system, which allows for parents to send their children to private or religious schools with taxpayer-funded vouchers.
ADF has linked more than 125 groups to create a combined effort to fight for their issues. They’ve brought together attorneys and allied legal groups to help develop a national strategy on controversial social issues, for example they worked with others to develop a national strategy to “protect marriage” across the United States after Vermont's decision to legalize civil unions for gays and lesbians.
In addition to organizing lawyers and ministries, ADF also trains and recruits and provides grants to support legal cases as well as pro-bono assistance.
ADF also defends the right of Christians to “share the gospel” in workplaces and public schools, claiming that any efforts to curb proselytizing at work and school are anti-Christian.
ADF has had success in anti-gay cases all over the US, from Alaska to Massachusetts.
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Background
Unique to the Alliance Defense Fund (ADF) is their collective of high-power founders, including wealthy right-wing organizations such as Dobson’s Focus on the Family and D. James Kennedy’s Coral Ridge Ministries.
The ADF embodies the beliefs of its founders, harnessing the efforts of a cadre of right-wing groups with hundreds of millions of dollars at their disposal. All of these groups are influential members of the Right; they are pro-life and anti-gay, and their ultimate goal is to see the law and U.S. government enshrined with conservative Christian principles.
The relationship between ADF and it’s founders is one of mutual self-interest; ADF has access to the resources and networking of large organizations, who in turn are equipped with an endless supply of readily-available lawyers.
ADF’s strength goes beyond their budget due to their influence with well-funded religious-right groups.
Two issues common to each of ADF’s founders are their work against the right to abortion, and against the civil rights/liberties of gays and lesbians. They are particularly persistent in attacking attempts by homosexuals to have families, establish domestic partnerships or civil unions, or to be protected from discrimination in employment or housing.
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Alan Sears’ Background
Alan Sears was the Executive Director of the Attorney General’s Commission on Pornography under President Ronald Reagan. Sears was a federal prosecutor for former Secretary of Interior Don Hodel (former Christian Coalition President), and has produced several anti-gay works, such as The Homosexual Agenda in paperback, and Exposing the Homosexual Agenda on broadcast cassette.
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Quotes
“The Alliance Defense Fund is a servant organization that provides the resources that will keep the door open for the spread of the Gospel through the legal defense and advocacy of religious freedom, the sanctity of human life, and traditional family values.”– The Alliance Defense Fund website, February 2006
Supreme Court PreviewHein v. Freedom From Religion Foundation
(U.S. Supreme Court, No. 06-157, oral argument scheduled for February 28, 2007)
By: Ira C. Lupu & Robert W. Tuttle, Directors of Legal Research for the Roundtable on Religion and Social Welfare Policy, and Professors of Law, George Washington University Law School.
Publication Date: 02/20/2007 Date Last Updated: 02/20/2007
On Wednesday, February 28, the U.S. Supreme Court will hear oral arguments in the case of Jay Hein, Director of the White House Office of Faith-Based and Community Initiatives ("WHOFBCI") v. Freedom From Religion Foundation, Inc. ("FFRF"). Paul Clement, the Solicitor General of the United States, will argue the case for the WHOFBCI. Andrew Pincus of the Washington law firm of Mayer, Brown, Rowe & Maw will appear for FFRF.
As originally filed by FFRF on behalf of its taxpayer-members, the case involves a broad constitutional attack on expenditures and activities sponsored by the White House and various federal agencies in support of the Faith-Based and Community Initiative ("FBCI"). The single issue that has led the case to the nation's highest court, however, is the status of taxpayers as appropriate parties to bring such a lawsuit. The question of who may mount lawsuits falls under the lawyer's rubric of "standing to sue," and this case tests the limits of the standing of taxpayers to complain that the government has spent money in ways that allegedly violate the Establishment Clause of the First Amendment.[1] If taxpayers lack standing, they will not be able to ask courts to hear cases involving such expenditures.
The original complaint in the lawsuit alleged that the White House and other federal agencies had spent money on regional conferences to promote the FBCI. As later characterized by Judge Posner in the U.S. Court of Appeals for the 7th Circuit, the complaint asserted that these conferences amounted to "propaganda vehicles" for religion, and therefore violated the Establishment Clause. Among other things, the complaint cited speeches by then-Secretary of Education Rod Paige as evidence that the government unconstitutionally used the conferences to promote religious messages.
The government moved to dismiss the lawsuit on the grounds that the taxpayer-plaintiffs lacked the requisite standing to sue, and the district court granted that motion. FFRF appealed to the U.S. Court of Appeals for the 7th Circuit. In Judge Posner's opinion for a panel of that Circuit, the appeals court concluded that the district court was wrong on the question of taxpayer standing and reinstated the suit. The government petitioned the full Court of Appeals for rehearing en banc. The judges of that court voted to reject that petition, but several judges wrote separate opinions, in which they complained about the confusing state of the law of taxpayer standing and suggested that the Supreme Court should clarify the situation. The government then petitioned the Supreme Court to hear the case, and in December of 2006, the Court agreed to do so. The parties, and various friends of the court, have now filed written briefs, and the case will be argued on February 28.
Background on the Law of Standing
The requirement of "standing to sue" in the federal courts arises from Article III of the U.S. Constitution, which limits those courts to "cases" and "controversies." In order for a lawsuit to present a case or controversy, the plaintiff must demonstrate that he or she has been injured by the defendant in ways that the court can remedy if the defendant is found to have behaved unlawfully. The purpose of this requirement of "injury" is to ensure that there is genuine adversity between the parties. Such adversity is thought to guarantee that the strongest facts and arguments will be presented by both sides, thereby facilitating the best possible judicial resolution of the dispute. The "injury" requirement is also said to ensure that the dispute is concrete, and does not represent an abstract or generalized grievance.
Many years ago, the Supreme Court ruled that federal taxpayers do not have standing to challenge the constitutionality of federal expenditure programs, because the connection between the allegedly wrongful expenditure and their status as taxpayers is too remote.[2] Even if they win the suit, the Court then reasoned, taxpayers will not get a refund of the amount of the taxes that have been wrongfully spent. In 1968, however, the Court carved out an exception to the doctrine excluding taxpayers from standing in Flast v. Cohen,[3] which authorized taxpayer standing to challenge congressional action alleged to be in violation of the specific limitations in the First Amendment, including the Establishment Clause. The reasoning in Flast turned on the special history of the Establishment Clause, which protects taxpayers from being compelled to support any religious faith. Although the Court in Flast focused on the congressional role in appropriating money that might be spent in aid of religious institutions, the Court twenty years later in Bowen v. Kendrick[4] explicitly applied the Flast principle to Executive Branch decisions about spending legislative appropriations for programs under the Adolescent Family Life Act.
The only significant decision in the Supreme Court in the past 40 years in which the Court has rejected taxpayer status as sufficient to confer standing in Establishment Clause cases is Valley Forge Christian College v. Americans United for Separation of Church & State, Inc.[5] The Valley Forge case involved a transfer of government-owned land and buildings from the Executive Branch to a religious college. The Supreme Court ruled that the Executive's authority to transfer the property arose under Article IV, section 3, which authorizes Congress to dispose of property of the United States, rather than Art. I, section 8, clause 1, which authorizes the Congress to tax and spend. On that basis, the Court concluded that current taxpayers are not directly injured by transfers of property acquired earlier, with tax dollars contributed by prior taxpayers.
Narrowly framed, the question in Hein v. FFRF is whether the taxpayer plaintiffs in this case are more like those in Flast and Bowen, in which the Court recognized taxpayer standing as an exception to the general rule against such standing, or are closer to those in the Valley Forge case, in which the exclusive role of the Executive Branch in deciding to transfer the property led the Court to deny taxpayer standing.
Viewed more broadly, the Justices may see Hein v. FFRF as a case in which to reaffirm the concept that standing to sue under the Establishment Clause should be construed generously, as the Court did in Flast, or to reject that concept, as the Court did in Valley Forge. The principal reason to view standing broadly in Establishment Clause cases is not simply the historical connection with taxpayers concerned about being compelled to support state-favored religions. Rather, the key concern in today's world is whether any party will be able to bring Establishment Clause cases to the courts. Because most alleged violations of the Clause involve actions that favor religion, and coerce no one into religious experience, a narrow doctrine of standing to sue would make many government actions effectively unchallengeable. Constitutional examination of government expenditures that support religious entities, and of government expression of religious sentiments (like displays of the Ten Commandments), can only occur if the courts construe the concept of standing in a broad way, because no one would have a personal and specific injury in such matters if injury were narrowly defined.
In this respect, there is an important relationship between views on the breadth of the Establishment Clause and openness on taxpayer standing to sue. Those Justices (like Justices Souter, Stevens, and Ginsburg) who tend to hold expansive conceptions of what the Clause prohibits, and who believe that courts should enforce those conceptions, are also likely to favor broad doctrines of standing to sue in these cases. By contrast, those Justices (like Justices Scalia and Thomas) who hold narrower conceptions of the Clause, and who would like to keep courts away from these sorts of questions, are also likely to favor narrower conceptions of standing to sue. Justices Kennedy and Breyer are less predictable on these questions, and neither Justice Alito nor Chief Justice Roberts have yet been involved at the Supreme Court level in cases involving the Establishment Clause.[6]
In addition to the scope of federal taxpayer standing, two very large issues are potentially lurking in the wake of Hein v. FFRF. First, the Court has for many years expressed no doubt about the scope of state and local taxpayer standing in Establishment Clause cases. Flast, Bowen, and Valley Forge all focused on the standing of federal taxpayers, but the Court has decided a number of cases in which standing to sue rested on the plaintiff's status as a state or local taxpayer. A decision in Hein to expand or contract federal taxpayer standing may have implications for suits by state and local taxpayers as well. Second, courts have been quite generous in recognizing the standing of those who challenge government religious expression on the basis of exposure to that expression - for example, objecting to religious messages in a courthouse because the objector is a lawyer who regularly practices in that courthouse. This sort of "exposure" standing is also unusual, and may be unique to cases brought under the Establishment Clause. If Hein limits taxpayer standing, it may do so on grounds that will eventually spill over and affect "exposure" standing as well.
Hein involves two key factual elements that distinguish this case from Flast and Bowen, in which the Court recognized taxpayer standing. First, the expenditures challenged in Hein are drawn from the general budget appropriations from Congress for operation of the White House and its offices, such as the WHOFBCI, and for the administrative operations of other federal agencies. By contrast, the expenditures in Flast and Bowen had been drawn from congressional appropriations for particular substantive spending programs - in Flast, for instructional materials and teachers' pay, and in Bowen, for services related to adolescent family life. Second, and related to the first, the expenditures challenged in Hein are internal to the Executive Branch, and do not involve grants to religiously affiliated parties outside of the government; by contrast, the schemes challenged in both Flast and Bowen involved the possibility of expenditures to religiously affiliated entities external to the government. We expect much of the oral argument in Hein to focus on these key facts.
The Arguments of the Parties to the Case
1. The government. Arguing on behalf of the WHOFBCI, the brief for the U.S. Solicitor General proceeds on relatively narrow grounds. According to the government, Flast represents "a narrow exception to the general rule against taxpayer standing to permit taxpayer challenges to congressional appropriations that took the form of legislatively directed grants in aid of religion."[7] The government thus emphasizes the necessity of an explicit congressional connection to the religious content of the challenged expenditures. From these premises, the government argues that the FFRF suit against the WHOFBCI does not fall within the terms of the exception, because: 1) the challenge is to an executive branch expenditure; 2) the expenditure is not the result of a legislative decision to spend funds in aid of religion or religious entities; and 3) the expenditure did not go outside the government to assist any religious entities.
Only at the very end of the government's brief is there a hint of a broader, more theoretical basis for the government's argument. In the brief's final section, it argues that a narrow view of taxpayer standing is required by the doctrine of separation of powers. A broad doctrine of taxpayer standing, the brief asserts, would make it too easy for taxpayers to invoke the power of courts each and very time the government does something that arguably supports religion. For example, taxpayers could challenge prayers at the inauguration of a governor or mayor, even if the government spends no money on the prayer. The brief thus links a broad doctrine of standing in Establishment Clause cases with concerns about judicial activism, and excessive judicial policing of the Executive Branch.
2. Freedom from Religion Foundation, Inc. The FFRF brief was prepared by Andrew Pincus and others from the firm of Mayer, Brown, Rowe, & Maw, with help from the Yale Law School Supreme Court advocacy clinic, and Richard Bolton, who had argued the case in the lower courts. The brief argues that FFRF's claim falls squarely within the contours of Flast v. Cohen and other prior decisions. The brief asserts that drawing lines between congressional programs that obviously contemplate aid to religious entities, on the one hand, and more general congressional appropriations that coincidentally permit Executive expenditure to promote religion, on the other, makes no sense in light of the purposes of the Establishment Clause. According to FFRF, taxpayers are injured in the same way by any expenditure that unconstitutionally advances religion, regardless of the degree of attention paid by Congress to possible religious goals or beneficiaries. In all such cases, Congress has appropriated funds, and the Executive Branch has spent them unconstitutionally.
Moreover, FFRF argues, the government's distinction between external grants, like those in Flast and Bowen, and internal expenditures, like those at issue here, is not persuasive. If the government is spending to promote religion, the distinction between internal and external expenditures is constitutionally irrelevant. For example, it would be just as questionable for the government to hire its own clergy to lead daily prayers in each federal agency as it would be for the government to enter contracts with a private clergy service to provide such prayers in the same public agencies.
FFRF asserts that a common standard ties together Flast, Bowen, and this case - that the challenged expenditure must be "fairly traceable to the alleged unconstitutional conduct."[8] If it is so traceable, courts should be able to hear the complaints about the constitutionality of the conduct. Under this approach, taxpayers would not have standing to challenge conduct that is only remotely connected to an expenditure - for example, references to God in a Presidential inaugural address - but would have standing to challenge expenditures for FBCI conferences designed to praise, favor, and promote religion.
Arguments Advanced in Amicus Briefs
As is typical in high profile litigation in the Supreme Court, a number of interest groups and governmental entities have filed briefs as amici curiae (friends of the Court) on the issues in the case. By bringing additional facts and perspectives to the Court's attention, such briefs can play a crucial role in the resolution of the dispute. For example, amicus briefs filed by major U.S. corporations and retired military officers in the litigation over affirmative action for racial minorities at the University of Michigan Law School are widely credited with helping to persuade Justice O'Connor to cast the crucial fifth vote in favor of the school's policy in Grutter v. Bollinger (2003).
Several influential interest groups have filed amicus briefs in Hein. As described below, some of them - particularly on the government's side - take positions considerably more aggressive than those taken by the parties.
1. Amicus briefs on the side of the government. Five amicus briefs have been filed on the side of the WHOFBCI. One, prepared by the Office of the Indiana Attorney General on behalf of twelve states,[9] argues that a ruling in favor of FFRF would expose many states to lawsuits for their own conferences, designed to promote the FBCI, and for other executive branch activities that might be perceived as supportive of religion. Moreover, the states assert that broad doctrines of standing, in establishment clause cases as well as others, lead to excessive federal court interference with state activity. Arguing boldly that Flast v. Cohen is inconsistent with principles of federalism and power separation, the states' brief calls for the Supreme Court to explicitly overrule Flast, and to jettison the doctrine of taxpayer standing in Establishment Clause cases.
The American Center for Law and Justice ("ACLJ") - a frequent participant in Supreme Court litigation - has also filed an amicus brief on the government side. The ACLJ often defends government entities, especially state and local, that take steps to accommodate or promote religion. The ACLJ, arguing from premises of power separation, has also argued that the Court should overrule Flast v. Cohen. Flast, claims the ACLJ, is a departure from appropriate principles of interpretation of Article III, which is designed to limit the courts to cases brought by parties who suffer concrete, personal, and identifiable personal injury from the government's actions.
Several other organizations have filed in support of the WHOFBCI in Hein v. FFRF. An amicus brief from We Care America, a group of faith-based organizations that support the FBCI, argues that such organizations are already under threat from taxpayer suits when these organizations enter into partnerships with government and that the Court should act to reduce that threat. The brief, prepared by the Alliance Defense Fund, expresses special concern about the possibility of reimbursement orders aimed at faith organizations which have contracted with government in ways later held to be unlawful. The brief calls for a cutback in both taxpayer standing and "observer" standing in cases of government religious displays. The Christian Legal Society has filed a brief arguing that Flast itself is correctly decided, because the Establishment Clause protects "structural' values, rather than individual rights, and enforcement of the Clause depends on maintaining the "legal fiction" of taxpayer injury. Nevertheless, the Society argues that extending Flast to FFRF's case goes "too far," by permitting taxpayer interference with too wide a swath of executive branch behavior. And the Foundation for Moral Law, Inc. has filed a brief arguing that the Establishment Clause should be understood as protecting the states against federal interference in matters of religion, and that taxpayer standing too often invites precisely such interference by the federal judiciary in state and local decisions pertaining to religious matters.
2. Amicus briefs on the side of FFRF. Five amicus briefs have been filed on the side of FFRF in this case. The most prominent of these is the joint product of the American Civil Liberties Union, Americans United for Separation of Church and State, the Baptist Joint Committee for Religious Liberty, People for the American Way, and the Anti-Defamation League. These organizations are frequently involved on the plaintiffs' side in Establishment Clause litigation, so any reduction in the scope of taxpayer standing would affect the ability of these organizations to litigate effectively. This joint amicus brief focuses most of its argument on buttressing the general concept of taxpayer standing in Establishment Clause cases. The brief asserts that the lower courts have been able to make sensible decisions under the current law of taxpayer standing, and argues that respect for precedent should lead the Supreme Court to leave undisturbed the existing legal regime of Flast v. Cohen and its progeny. Because these organizations' agenda is the preservation of Flast's general principle, rather than the ultimate success of this lawsuit, the brief spends very little time arguing that FFRF should be granted standing in this particular case.
In addition, a group of scholars and historians have filed an amicus brief, challenging the government's view that congressional -- as distinguished from executive -- action represents the unique concern of the Establishment Clause. This brief, which may be quite influential with a number of Justices, argues strenuously that the government's distinction between congressional and executive support for religion is specious and ahistorical. The brief assembles considerable evidence that the Framers were mindful of monarchical establishments as well as parliamentary ones, and that the First Amendment - though it references only "Congress" - was designed to limit the Executive Branch as well as the legislature.
An amicus brief filed on behalf of the American Jewish Congress and the American Jewish Committee also emphasizes what its authors see as illogical and unpersuasive distinctions between congressional and executive focus on religion, and between internal and external expenditures. Government expenditures designed to promote religious belief or favor certain faiths, the brief argues, represent First Amendment violations no matter which branch of government is the primary architect of such expenditure policies, and without regard to whether the monies wind up in private hands. Moreover, this amicus brief is the only one to delve deeply into the question, related to that posed in Hein, of the standing of state and local taxpayers to raise Establishment Clause questions in the courts. The brief cites a wide variety of such suits from the state courts. Although the states have a variety of technical rules to govern taxpayer standing, the brief argues that no state's policies on taxpayer suits distinguish between legislative and executive origination of the expenditure, or between internal expenses and grants to parties outside of government.
Several other groups have also filed on the side of FFRF in this case. The brief on behalf of the American Atheists, Inc. is highly supportive of the particulars of FFRF's lawsuit, both on the question of standing and on the Establishment Clause question presented by the case. The brief points out that the FBCI-promoting conferences targeted by the lawsuit involve external expenditures (e.g., renting a hotel ballroom for the conference) as well as internal ones (paying the salaries of government officers who appear at the conferences), and argues that taxpayers should be able to challenge such expenditures in the same way they can challenge grants to religious entities. And a brief filed jointly on behalf of the Center for Inquiry and the Council for Secular Humanism argues that Congress did indeed intend that its appropriations for the White House and various federal agencies should be spent in promotion of the FBCI. The brief assembles evidence from congressional-executive interactions over the past six years that Congress was highly aware of the FBCI, and made appropriations for administration of federal agencies knowing that the monies would be used to promote the FBCI. The brief asserts that this awareness and interaction renders the challenged expenditures for the conferences a product of congressional as well as executive decision, and brings the case well within the Court's prior rulings in Flast v. Cohen and Bowen v. Kendrick.
Our Appraisal of the Case
Although some of the government's amici have argued for overruling of Flast and repudiation of the doctrine of taxpayer standing in Establishment Clause cases, we do not expect that sort of sweeping and dramatic decision in this case. Just a year ago, the Court expressed approval of Flast in an opinion rejecting taxpayer standing to challenge a policy that did not involve religion. Chief Justice Roberts, who wrote that opinion, is well-known to favor narrow rather than broad constitutional decisions, and his vote would appear to be necessary to accomplish any dramatic change in the law. Moreover, Justice Kennedy, who is not hospitable to broad Establishment Clause norms and who may side with the government in this case, is himself well-known for preferring to keep the judiciary actively involved in most constitutional questions, and therefore might be disinclined to favor a highly limited doctrine of standing.
We thus believe that the case will be decided on narrow grounds of the sort reflected in the government's brief - whether the size of congressional fingerprints on the expenditure is dispositive, and whether the expenditure's internal rather than external quality matters. Justices Ginsburg, Souter, and Stevens are likely to side with FFRF. Justices Scalia, Thomas, and perhaps Justice Alito are likely to side with the government, and may even be willing to severely limit the scope of Flast v. Cohen. The votes of Chief Justice Roberts, Justice Kennedy, and Justice Breyer (always a wild card in cases about religion and the Constitution) are likely to determine the outcome, and we do not expect that any of these three will join in an effort to dismantle the existing law of taxpayer standing. We are thus predicting a 5-4 or 6-3 decision, on narrow grounds, and that decision could easily go either way. If the decision is in favor of FFRF, the case will return to the district court for a decision on FFRF's challenge.[10]
If we are correct in our appraisal of the Supreme Court's likely treatment of the issue of taxpayer standing, the case of Hein v. FFRF will break little new ground and have little effect on other Establishment Clause litigation. If, however, a group of five Justices agrees to cut back significantly on Flast's special consideration for taxpayers in Establishment Clause litigation, Hein v. FFRF could mark the beginning of a long and deep retrenchment in such litigation, in which cases about expenditures (federal, state, and local) and cases about government religious expression become considerably more difficult for plaintiffs to bring through the courthouse door. Such a retrenchment might embolden government entities to take steps that the current law of the Establishment Clause appears to forbid. For example, a governor might sponsor a religious revival meeting using funds appropriated to her office for general use. In that sense, the law of standing to raise Establishment Clause issues is a proxy for the underlying constraints of the Clause itself. The stakes in Hein v. FFRF may thus be considerably larger than first appear from the seemingly technical qualities of the issue presented.
Notes:
[1]. The Establishment Clause - "Congress shall make no law respecting an establishment of religion" - prohibits the government from actively promoting religious belief.
[2]. Frothingham v. Mellon, 262 U.S. 447 (1923).
[3]. 392 U.S. 83 (1968).
[4]. 487 U.S. 589 (1988).
[5]. 454 U.S. 464 (1982).
[6]. Alito's record on the U.S. Court of Appeals for the 3rd Circuit suggests that he may be likely to hold views on the scope of the Establishment Clause close to those of Justices Scalia and Thomas. Nevertheless, a unanimous Court joined in Chief Justice Roberts' opinion last Term in DaimlerChrysler v. Cuno, 126 S. Ct. 2961 (2006), in which the Court (while rejecting taxpayer standing to complain about state tax breaks for new businesses) had this to say about Flast v. Cohen: "Flast is consistent with the principle, underlying the Article III prohibition on taxpayer suits, that a litigant may not assume a particular disposition of government funds in establishing standing. The Flast Court discerned in the history of the Establishment Clause ‘the specific evils feared by [its drafters] that the taxing and spending power would be used to favor one religion over another or to support religion in general.' The Court therefore understood the ‘injury' alleged in Establishment Clause challenges to federal spending to be the very ‘extraction and spending' of ‘tax money' in aid of religion alleged by a plaintiff. And an injunction against the spending would of course redress that injury, regardless of whether lawmakers would dispose of the savings in a way that would benefit the taxpayer-plaintiffs personally."
[7]. Brief for Petitioner Jay Hein at 19.
[8]. Brief for Respondent FFRF at 19-21.
[9] The states joining the brief are Alabama, Colorado, Florida, Indiana, Michigan, Nevada, North Dakota, Oklahoma, South Carolina, Texas, Virginia and Washington State.
[10] We assess the merits of FFRF's lawsuit in our original legal update on the case, available online at: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=28.
Freedom from Religion Foundation, Inc. (and others) v. Jim Towey, Director of White House Office of Faith Based and Community Initiatives (and others)
On June 17, the Freedom from Religion Foundation (hereafter "FFRF") filed suit in the United States District Court for the Western District of Wisconsin against Jim Towey, the Director of the White House Office for Faith-Based and Community Initiatives (hereafter "OFBCI"), and other federal officials with primary responsibility in virtually every agency in the federal government that has a connection with the Initiative. The defendants include (in addition to Jim Towey) the Attorney General; the Secretaries of Labor, Health & Human Services, and Education; the Directors of the OFBCI at each of those agencies, and at the Department of Housing and Urban Development, the Department of Agriculture, the Agency for International Development, and the Corporation for National and Community Service; and the Director of the Centers for Disease Control and Prevention. The complaint alleges that those responsible for the Initiative have unconstitutionally: 1) endorsed religion; 2) favored religious over secular organizations in the distribution of federal funds for social services; 3) directly funded services that include religious content; and 4) funded intermediary faith-based organizations (hereafter "FBOs") that prefer religious subgrantees to secular ones. All these actions, the complaint asserts, violate the Establishment Clause of the First Amendment.[2]
The complaint is written in very general terms, and includes virtually no identified examples of the alleged wrongdoing. If the plaintiffs can overcome various procedural hurdles that the government is likely to raise, they will be entitled to begin the process of discovery and seek evidence to support their general allegations. Thereafter, if the plaintiffs are able to prove their allegations, and if the courts are persuaded that the proven conduct indeed violates the Constitution, the plaintiffs will be entitled to some form of relief against any government defendants who have been shown to have behaved unlawfully.
The lawsuit´s massive scope makes it a matter of immediate and focused concern for the architects and administrators of the Initiative. If major aspects of the suit are successful, the Faith-Based Initiative could be significantly altered or compromised, and perhaps even wind up under long-term judicial supervision. In its current bare-bones form, the complaint raises a variety of procedural, substantive, and remedial issues, all of which we analyze below.
SUMMARY OF ALLEGATIONS
The suit, filed on behalf of FFRF and its principal officers,[3] names as defendants virtually all of the federal officials, some at Cabinet rank, who are responsible for administering the President´s Faith-Based Initiative. The complaint alleges that the Initiative is being administered in ways that endorse religion, prefer FBOs to secular entities, and directly fund religious activity, all in violation of the First Amendment´s Establishment Clause. The complaint´s central allegations are as follows:
· FFRF is a non-profit corporation, with more than 5000 members, "who are opposed to government endorsement of religion" in violation of the U.S. Constitution.
· The various named defendants, including Jim Towey, each have administrative responsibility for some portion of the Faith-Based Initiative.
· The defendants have used federal taxpayer appropriations to support activities that endorse religion and give FBOs preferred positions.
· The defendants at national and regional conferences have sent messages that "adherents of religious belief" are favored members of the political community, and that non-adherents of such belief are political outsiders.
· Those defendants who direct agency Centers for FBCI oversee expenditures intended to give preferences to FBOs over other organizations, and help build capacity of FBOs. These activities are all designed to support and endorse religious service providers.
· The Departments of Labor, HHS, Education, and Justice, and the Center for Disease Control have all "directly and preferentially funded . . . . services that integrate religion as a substantive component."
· The Departments of Labor, HHS, Education, and Justice, and the Center for Disease Control have funded intermediary FBOs "that preferentially award sub-grants to other [FBOs]," without objective criteria to guide the intermediaries in making sub-awards.
· These actions violate the Establishment Clause of the First Amendment, and injure the plaintiffs by compelling taxpayer support of the "establishment, endorsement and advancement of religion."
The complaint concludes with a request that the court 1) declare that the defendants have made expenditures in violation of the First Amendment; 2) order the defendants to discontinue such expenditures, and in particular order the defunding of the various Centers for Faith-Based Initiatives; and 3) order the defendants to create policies to ensure that future appropriations are not made or used to fund providers of services that include "religion as an integral component."
The defendants, who will be represented by the Department of Justice in consultation with the affected federal agencies, now have sixty days in which to make their initial response to the complaint by FFRF.
OUR ANALYSIS OF THE LAWSUIT
The FFRF lawsuit raises a number of concerns crucial to the controversy over the Faith-based Initiative. We expect that the first set of questions to be confronted by the court will be procedural, and will focus on whether this lawsuit may go forward in its current form. If the suit survives these procedural hurdles, the focus of the next phase of the case will be evidentiary, and will involve the plaintiffs´ efforts to collect and offer proof of their allegations of religious favoritism and direct government expenditure for programs with religious content. Assuming the plaintiffs can amass such evidence, the court will be faced with the substantive question of whether the evidence demonstrates a violation of the Constitution. If the court finds such a violation, the final questions will involve matters of remedy; if these violations of the First Amendment are occurring, what steps should the court take to ensure that the violations do not continue? We examine these four layers - procedural, evidentiary, substantive, and remedial - in turn.
1. Procedural objections
The government might ask the court to dismiss the complaint on a variety of procedural grounds. One possibility for such a request would be the vague and general allegations in the complaint. Under the Federal Rules of Civil Procedure, however, a complaint need provide no more than a "short and plain statement of the claim showing that the pleader is entitled to relief."[4] Ultimately, the plaintiffs will have to provide more specificity to their allegations, but for now we believe that the complaint contains sufficient notice of the grounds for the suit to satisfy the rule.
Another, perhaps more likely possibility, is that the defendants will move to dismiss the suit on the basis of the plaintiffs´ lack of standing. Despite the Supreme Court´s recent dismissal on standing grounds of Michael Newdow´s suit regarding recitals in public school of the Pledge of Allegiance, the law of standing in Establishment Clause cases tends to be very favorable to plaintiffs. Here, plaintiffs have alleged that FFRF is an organization devoted to protecting church-state separation, and that it has 5000 members devoted to that principle. In addition, the individual plaintiffs are alleged to be federal taxpayers whose tax contributions are used to support the challenged activity
Taxpayer status is legally sufficient to sustain the plaintiffs´ standing to complain about federal expenditures in support of religion, whether those expenditures involve services with religious content, conferences at which religious messages are allegedly communicated, grants for capacity-building by FBOs, or grants to FBO intermediaries. In some circumstances, government endorsement of religion may not arise out of expenditure of government funds, but virtually all of the alleged activities here do involve public expenditure. It is conceivable that the court may dismiss the allegations about preferential funding for FBOs over others, on the grounds that none of the plaintiffs have alleged that they have been the subject of a denial of funds. Even on this point, however, we expect that the court will find that taxpayer status is legally sufficient to complain about use of government monies in ways that signal preference for religious over secular providers; the taxpayer complaint is not that the plaintiffs have been discriminated against in the distribution of grants, but rather that government funds may not be spent in ways that promote religious favoritism.
Those defendants who are Directors of OFBCIs may raise an additional procedural defense. The complaint alleges, among other things, that these Directors "oversee the expenditure of federal tax appropriations that are intended to give preferences . . . . [to FBOs]." Directors of OFBCIs do not have legal authority to authorize and oversee expenditures for particular grants; their role is more promotional and advisory. Accordingly, we can foresee the possibility that Jim Towey, and the other Directors of agency-specific OFBCIs, may be dismissed as defendants with respect to the portions of the complaint that involve grants to FBOs. But the various Cabinet-level officials will remain as defendants with respect to such complaints, and the Directors of OFBCIs are likely to remain as defendants with respect to the complaints about promotion of religion at national and regional conferences to promote the Initiative.
We thus fully expect that the substance of the FFRF complaint will survive the hurdles the government may create at the outset of the case. If that is correct, the case will proceed to the stages of discovery (evidence gathering) and substantive judgment, to which we now turn.
2. Evidentiary concerns
If, as we expect, the FFRF complaint survives the various grounds on which the government will try to have it dismissed, the lawsuit will move into a new phase. In particular, the plaintiffs will be free to seek evidence to prove their allegations, through discovery of the conduct of various defendants. Such a process would likely commence with requests for documents (electronic and written) from all defendants with respect to matters related to the Initiative. Following review of such documents, the plaintiffs are likely to seek to take the depositions of Jim Towey (Director of the White House OFBCI), all of the Directors of the agency-based OFBCIs, and relevant officials in all of the agencies named in the complaint. This entire process of discovery could take a considerable period of time - indeed, given the medium-sized law firm that is currently representing the plaintiffs and the magnitude of the discovery task, we expect that discovery could take several years.[5] In addition, the plaintiffs will attempt to collect affidavits from others, outside the government, whose observations may tend to support the complaint´s allegations.
Eventually, depending upon what evidence turns up in the discovery process and what evidence the plaintiffs already possess, one or both sides may move the court for judgment in its favor. That is, based on whatever facts are not in dispute,[6] each side might assert that it is entitled to legal judgment on some or all of the issues. It is impossible to predict how the court would rule in such a situation without knowing exactly what evidence, by way of affidavits or other undisputed information, each side might have. Any such ruling, however, would turn on the interaction of the available evidence and the relevant substantive law of the Establishment Clause.
3. The Law of the Establishment Clause
The key decision to understand in the appraisal of the FFRF lawsuit is Bowen v. Kendrick, decided by the U.S. Supreme Court in 1988.[7] In that case, the plaintiffs asserted that the Adolescent Family Life Act ("AFLA") violated the Establishment Clause. AFLA required the inclusion of FBOs in any local plan seeking federal funds for efforts at educating teenagers on matters of sexuality and human reproduction.
The Supreme Court rejected the idea that the mandatory inclusion of FBOs in plans approved under AFLA violated the Constitution. The Court emphasized that AFLA was neutral between religious and secular participants, requiring the inclusion of both. It therefore rejected any attack on AFLA as a whole (or, as lawyers sometimes say, "on its face"). Instead, the Court concluded that any assertion that the administration of AFLA violated the Establishment Clause depended upon proof that particular AFLA grantees were using public monies in a constitutionally impermissible way (or, as lawyers sometimes say, proof that the Constitution had been violated by the law "as applied"). The Court remanded the complaint in Bowen v. Kendrick to the district court for an inquiry into whether the law was being unconstitutionally administered or applied. Eventually, the parties settled the case, and agreed upon an elaborate set of guidelines that define the obligations of AFLA grantees with respect to religious content of their teaching.[8]
We think that the model of Bowen v. Kendrick has already influenced the shape of FFRF v. Towey, and is likely to bear heavily on the ways in which it develops. In order for FFRF to prevail on any of its constitutional complaints, it will have to show more than the mere inclusion of FBOs in federal grant programs. FFRF must demonstrate that the Faith-Based Initiative, as administered, unconstitutionally endorses religious belief, prefers FBOs over secular providers, or permits direct government expenditure on service with religious content.
a. Endorsement of Religion.
One constitutional theory that appears with considerable frequency in the FFRF complaint is that the various defendants have unconstitutionally "endorsed" religion - that is, that the defendants have communicated with both words and actions the idea that adherents of religious belief are politically favored and that non-adherents of such belief are politically disfavored. This approach to Establishment Clause adjudication first appeared in the 1980's in decisions involving public support of religious symbols, such as Christmas Creches and Chanukah menorahs. Justice O´Connor is its principal architect and spokesperson, although it has commanded a majority of the Court in at least one major case.[9] What remains deeply unclear, however, is the extent to which the theory applies to cases in which the principal complaint involves the expenditure of government money for services rather than the government´s promotion of religious symbols. To be sure, the plaintiffs in FFRF v. Towey allege endorsement in both communication and expenditure practice, so it is possible that the district court will perceive a connection between the Faith-Based Initiative and the theory of endorsement. But FFRF will have to work hard to persuade the court that a doctrine most associated with religious symbols and holidays can be constructively deployed in a case about government financing of social service.
Moreover, even if the court is willing to apply the concept of endorsement in this context, the defendants will have a variety of responses to this theory of constitutional wrongdoing. First and foremost, the defendants will recite the core theme of the Faith-Based Initiative - that prior Administrations, acting under a misguided view of the Constitution, had systematically and wrongfully excluded FBOs from opportunities to compete for government funds in support of social service. This Administration, acting to correct that error, has asserted its desire to "level the playing field." This policy objective is not "endorsement;" this is, in the Administration´s view, nondiscrimination. Furthermore, the Administration will contend, the doctrine of endorsement obliges the court to measure the government´s policies from the perspective of a "reasonable observer," one familiar with norms and practices of government in the past as well as the present. Such a reasonable observer, the government will argue, would understand that the emphasis on recruitment of FBOs by this Administration is a corrective to past wrongful exclusions, not an announcement that religious believers have an exclusive or inside track on the truth.
We think that FFRF will have a difficult time persuading the court to accept its theory of religious endorsement in this case. The Supreme Court has never relied on the theory to invalidate a government expenditure, nor to invalidate the communicative strategy of a government agency trying to expand the organizations interested in competing for government grants or contracts. We do not expect that a court will order the WHOFBCI to stop holding national or regional conferences, designed to encourage and inform FBOs and other community organizations to apply for government support of their service activity. The theory of endorsement can be quite powerful when it is applied to publicly supported plaques recognizing the Ten Commandments, or to public recognition of the religious meaning of certain holidays, but it has not gained any sort of foothold in cases like those brought by FFRF against aspects of the Initiative. FFRF and its officers may have standing to raise this theory, but it remains to be seen whether they can persuade the court to rule in their favor based on it.
b. Preference for FBOs in Grants and Contracts.
If FFRF can find adequate proof that federal grants have been systematically routed to FBOs and away from equally qualified secular counterparts, it will have gone a long way toward proving its case of unconstitutional administration of the Initiative. The Supreme Court has many times repeated that the Constitution forbids government favoritism of some religious denominations over others or of religious entities over secular ones.
The structure of most federal programs for social service, however, may complicate this part of the lawsuit considerably. The great bulk of the programs associated with the Initiative are federal-state programs, in which the actual grant-award decisions are made at the state and local level. With respect to such programs, it is quite unlikely that federal officials will be held legally responsible for any such unconstitutional favoritism. And the lawsuit names only federal officials, rather than state or local officials, as defendants. The plaintiffs may have two partial escapes from this problem of federalism. First, the federal government does make some direct grants of its own - for example, by HHS to providers of treatment for substance abuse, and by DOJ to providers of services aimed at curbing domestic violence. Any demonstrated favoritism in grant programs directly funded by the federal government would be subject to judicial correction in this lawsuit. Here, the federal officials might assert a defense that they were attempting to remedy past discrimination against FBOs by tilting the distribution of current grants in their direction, but it is doubtful whether the court would find such a defense to have any merit.[10]
Second, the federal government has made a number of grants to private organizations to serve as intermediaries in the Initiative. Under these grant programs, the intermediaries are expected to help smaller organizations build service capacity and learn how to interact successfully with government grant programs. The plaintiffs in FFRF v. Towey have alleged that the defendants "have funded intermediary [FBOs] that preferentially award sub-grants to other [FBOs], and without utilizing objective criteria by the intermediaries for making sub-awards . . ." These allegations, if proven, have considerable potential to produce a ruling in the plaintiffs´ favor. The government cannot absolve itself of responsibility for unlawful prefences in grant-making by turning the award process over to private intermediaries. The government must maintain and enforce requirements of neutrality and even-handedness with respect to the sub-awards made by intermediaries. Accordingly, if the plaintiffs can demonstrate a pattern of religious or denominational favoritism by intermediaries, they may be entitled to appropriate relief.
c. Direct Government Expenditure for Social Service with Religious Content.
Only one allegation in the FFRF complaint does not focus on religious favoritism, or religious endorsement by word or expenditure. Instead, this allegation asserts that the federal defendants "have directly . . . funded . . . services that integrate religion as a substantive component." This allegation, if proven, has considerable potential to lead to court-ordered changes in the policies of the Initiative.
We have, in a number of prior Reports and website comments on federal policies, expressed a concern that the Administration´s concept of constitutionally forbidden expenditures is too narrow. In the President´s executive orders related to the Faith-Based Initiative, and in every agency regulation or guidance document implementing the Initiative, the Administration has announced a policy that the government may not pay for "inherently religious activities," such as "religious worship, instruction, or proselytization." This policy guidance has left many FBOs uncertain about the scope of permissible religious content in government-supported social services. The Administration´s policy is correct as far as it goes, but we believe that it does not go far enough. The Supreme Court´s rulings in this field suggest that the government may never directly finance religious indoctrination.[11] Because the Administration´s policies leave FBOs in a state of uncertainty about the permissibility of the use of religious themes as part of a service program - for example, encouragement of a personal relationship with Jesus Christ in a program to combat substance abuse - those policies may be constitutionally deficient. If FFRF is able to prove that these policies have been implemented by the federal government with grants that permit, or inevitably lead to, such religious content in government-financed social service, FFRF may be entitled to relief against both the offending grants and the policies that have inadequately guided the activities under them.
4. Remedial possibilities.Any remedies that the court might order would of course be tailored to the precise constitutional wrongs that the court was trying to ameliorate. Without knowing what, if any, those wrongs might turn out to be, it is difficult to predict with any precision what the available remedial options may be. We can, however, suggest some broad categories in which remedies might fall:1) Declarations of law that the government must remain scrupulously neutral between FBOs and secular providers of service, and that the government must refrain from direct financing of social service with explicitly religious themes or content;2) Injunctions that require various agencies of the government to obey any such declaration of law, and to put in place administrative safeguards designed to ensure that such legal violations do not occur in the future.[12] In particular, we expect that the Administration´s formulation that "inherently religious activities" define the boundaries of what government may not directly finance would give way to a much broader and better defined prohibition on government support for social service with explicitly religious content.
If courts were to impose remedies of this sort on the federal administration of the Faith-Based Initiative, its conduct would fall under long-term judicial supervision, and both its rhetoric and its political character might change considerably. The FFRF suit, though it has many important and difficult steps to negotiate, thus has the potential to transform the Faith-Based Initiative. We will be watching it closely.
Notes:
[1] Ira C. Lupu is the F. Elwood & Eleanor Davis Professor of Law at George Washington University Law School; Robert W. Tuttle is Professor of Law, George Washington University Law School. Professors Lupu and Tuttle are the Co-Directors of Legal Research for the Roundtable on Religion and Social Welfare Policy.[2] The complaint is available on-line at:http://www.ffrf.org/legal/faithbased_complaint.html
[3] In addition to FFRF itself, the plaintiffs include Anne Nicol Gaylor, President of FFRF; Annie Laurie Gaylor, editor of FFRF´s periodical "Freethought Today"; and Dan Barker, Public Relations Director of FFRF. Each of the individual plaintiffs is alleged to be a federal taxpayer and "a nonbeliever who is opposed to governmental establishment of religion." (FFRF Complaint, pars.7-9). FFRF and these same individuals were the plaintiffs in the highly significant litigation surrounding government financing of substance abuse programs being operated by Faithworks, Milwaukee. [For more see
http://www.religionandsocialpolicy.org/legal/legal_update.cfm?id=15 ; http://www.religionandsocialpolicy.org/legal/legal_update.cfm?id=9 ; and http://www.religionandsocialpolicy.org/legal/legal_update.cfm?id=3]
[4] Federal Rules of Civil Procedure, Rule 8(a)(2).
[5] FFRF is represented by Richard Bolton of Boardman, Suhr, Curry & Field, in Madison, Wisconsin. The firm´s website lists 46 attorneys.
[6] To the extent that crucial facts remain in dispute, the issues in the case could only be resolved with some form of trial, in which disputed testimony would be presented. In this case, in which the plaintiffs primarily seek orders against various federal officers and do not seek money damages, a judge rather than a jury would hear the testimony and decide what to credit as true.
[7] 487 U.S. 589 (1988).
[8] These guidelines remained in place through and including the 2001 guidance documents from the Office of Adolescent Pregnancy Programs at HHS. In 2002, that Office issued a new guidance document that was far more hospitable to FBOs.
[9] Allegheny County v. ACLU, 492 U.S. 573 (1989).
[10] The relevant analogy here is to the law of race-based affirmative action, in which explicit racial preferences in the award of government contracts may be justified only where a) the government has demonstrated a pattern of past discrimination, and b) the preference for prior victims of discrimination is limited in duration, and precisely tailored to the degree of past discrimination that has been shown. Here, the government has announced no policy of preference for FBOs, and so quite obviously has not tried to justify such a preference under the relevant constitutional standards.
[11] In Freedom of Religion Foundation, Inc. v. McCallum, 179 F. Supp. 2d 950 (W.D. Wisc. 2002), the district court (in the same district as this litigation, though with a different judge sitting) applied the anti-indoctrination principle to invalidate a grant from the Wisconsin Department of Workforce Development to Faithworks, Milwaukee, for a program of recovery from substance abuse, on the grounds that the program involved substantial religious indoctrination, and that the state had failed to impose safeguards against such impermissible use of government funds. In a separate part of the case, the court upheld the indirect state funding, through a system of beneficiary choice, of a similar Faithworks program for men under the control of the state´s Department of Corrections. The U.S. Court of Appeals for the Seventh Circuit later affirmed that part of the District Court´s decision. 324 F.3d 880 (7th Cir. 2003).
[12] The settlement in Bowen v. Kendrick, discussed above, included such detailed safeguards, as did the settlement on the state level in ACLU of Louisiana v. Foster, the suit that grew out of the Governor´s Program on Abstinence in Louisiana [For more on this see
http://www.religionandsocialpolicy.org/legal/legal_update.cfm?id=5].
Legal Analysis
Monitoring and Analyzing Legal Developments
Efforts are underway at federal, state and local levels to involve faith-based organizations in the provision of a wide variety of social services, financed in whole or in part by government. Whatever its social potential, such support raises fundamental constitutional questions about the relationship between faith-inspired institutions and the state, which remains a source of great uncertainty and heated conflict. American church-state law will not merely be implicated in the debate over charitable choice; it will inevitably be remade in ways that will affect our understanding of this part of our constitutional tradition for generations to come.
The contours of church-state law have changed dramatically in the past thirty years. In the early 1970's, the separationist vision of church and state was at its zenith; government benefits to, and burdens upon, religious enterprise were always constitutionally questionable. By the end of the 1990's, however, separationism had been challenged or repudiated in a number of court decisions, and a new vision emerged emphasizing government neutrality as between religion and nonreligion , where government-created benefits for and burdens upon religious entities are viewed as acceptable so long as they are matched by comparable treatment of secular analogues. This transformation is incomplete, however, and there remain some vital arguments as to why and how separationism and neutrality may quite properly be made to co-exist, each in its own proper place.
Questions on church-state law have considerable and immediate implications for policymakers. Federal and state administrative law and the law of government contracts depend in large measure on principles in constitutional law. As these principles change or are perceived to change, there will be momentum and opportunity to alter other bodies of law in response. A situation of this sort will produce many layers of complexity and many possibilities for confusion, honest mistake, or manipulation.
Considerations of law are also highly relevant in helping social scientists and policy analysts to frame questions about the optimum public investment in charitable choice. Programs that "work," but that courts will not tolerate, are not likely to be good options for government or religious organizations to choose. Inversely, if the programs that courts will tolerate will not produce high quality service or will rend the fabric of religious communities, charitable choice becomes a problematic path.
As a core service for government decisionmakers and others interested in these issues, The Roundtable on Religion and Social Welfare Policy researches, tracks, and analyzes legal developments in government aid to faith-based social welfare organizations, involving federal and state constitutional and statutory law. The Roundtable's legal research:
interprets the significance of broader constitutional law developments, such as aid to non-public schools, for charitable choice;
identifies settled areas of constitutional law that form accepted parameters of aid to FBOs;
assesses where legislative schemes or agency rules fail to reflect such parameters - either out of reluctance or over-eagerness to include religious providers in social welfare programs;
focuses on continuing areas of uncertainty, such as religious selectivity in employment decisions.
serves as a thorough and nonpartisan clearinghouse for the broader public - including the media and legal scholars - interested in the interaction of government and religious social service providers.
The Roundtable's legal research is directed by Professor Ira C. Lupu, the F. Elwood and Eleanor Davis Professor of Law at George Washington University School of Law. One of the nation's foremost scholars on the religion clauses of the First Amendment, Lupu has authored more than 20 law review articles on various aspects of religion and the law. Joining him as co-director is Robert Tuttle, Professor of Law at George Washington, who also holds a master's degree from the Lutheran School of Theology and a Ph.D. in religious ethics from the University of Virginia. Tuttle has served on the national board of the Evangelical Lutheran Church in America's Division for Church in Society, and as legal counsel for the Lutheran Bishop of Washington, DC.
1. Amicus briefs on the side of the government. Five amicus briefs have been filed on the side of the WHOFBCI. One, prepared by the Office of the Indiana Attorney General on behalf of twelve states,[9] argues that a ruling in favor of FFRF would expose many states to lawsuits for their own conferences, designed to promote the FBCI, and for other executive branch activities that might be perceived as supportive of religion. Moreover, the states assert that broad doctrines of standing, in establishment clause cases as well as others, lead to excessive federal court interference with state activity.
Arguing boldly that Flast v. Cohen is inconsistent with principles of federalism and power separation, the states' brief calls for the Supreme Court to explicitly overrule Flast, and to jettison the doctrine of taxpayer standing in Establishment Clause cases.
The American Center for Law and Justice ("ACLJ") - a frequent participant in Supreme Court litigation - has also filed an amicus brief on the government side. The ACLJ often defends government entities, especially state and local, that take steps to accommodate or promote religion. The ACLJ, arguing from premises of power separation, has also argued that the Court should overrule Flast v. Cohen. Flast, claims the ACLJ, is a departure from appropriate principles of interpretation of Article III, which is designed to limit the courts to cases brought by parties who suffer concrete, personal, and identifiable personal injury from the government's actions.
Several other organizations have filed in support of the WHOFBCI in Hein v. FFRF. An amicus brief from We Care America, a group of faith-based organizations that support the FBCI, argues that such organizations are already under threat from taxpayer suits when these organizations enter into partnerships with government and that the Court should act to reduce that threat. The brief, prepared by the Alliance Defense Fund, expresses special concern about the possibility of reimbursement orders aimed at faith organizations which have contracted with government in ways later held to be unlawful. The brief calls for a cutback in both taxpayer standing and "observer" standing in cases of government religious displays.
The Christian Legal Society has filed a brief arguing that Flast itself is correctly decided, because the Establishment Clause protects "structural' values, rather than individual rights, and enforcement of the Clause depends on maintaining the "legal fiction" of taxpayer injury. Nevertheless, the Society argues that extending Flast to FFRF's case goes "too far," by permitting taxpayer interference with too wide a swath of executive branch behavior. And the Foundation for Moral Law, Inc. has filed a brief arguing that the Establishment Clause should be understood as protecting the states against federal interference in matters of religion, and that taxpayer standing too often invites precisely such interference by the federal judiciary in state and local decisions pertaining to religious matters.
2. Amicus briefs on the side of FFRF. Five amicus briefs have been filed on the side of FFRF in this case. The most prominent of these is the joint product of the American Civil Liberties Union, Americans United for Separation of Church and State, the Baptist Joint Committee for Religious Liberty, People for the American Way, and the Anti-Defamation League. These organizations are frequently involved on the plaintiffs' side in Establishment Clause litigation, so any reduction in the scope of taxpayer standing would affect the ability of these organizations to litigate effectively.
This joint amicus brief focuses most of its argument on buttressing the general concept of taxpayer standing in Establishment Clause cases. The brief asserts that the lower courts have been able to make sensible decisions under the current law of taxpayer standing, and argues that respect for precedent should lead the Supreme Court to leave undisturbed the existing legal regime of Flast v. Cohen and its progeny. Because these organizations' agenda is the preservation of Flast's general principle, rather than the ultimate success of this lawsuit, the brief spends very little time arguing that FFRF should be granted standing in this particular case.
In addition, a group of scholars and historians have filed an amicus brief, challenging the government's view that congressional -- as distinguished from executive -- action represents the unique concern of the Establishment Clause. This brief, which may be quite influential with a number of Justices, argues strenuously that the government's distinction between congressional and executive support for religion is specious and ahistorical. The brief assembles considerable evidence that the Framers were mindful of monarchical establishments as well as parliamentary ones, and that the First Amendment - though it references only "Congress" - was designed to limit the Executive Branch as well as the legislature.
An amicus brief filed on behalf of the American Jewish Congress and the American Jewish Committee also emphasizes what its authors see as illogical and unpersuasive distinctions between congressional and executive focus on religion, and between internal and external expenditures. Government expenditures designed to promote religious belief or favor certain faiths, the brief argues, represent First Amendment violations no matter which branch of government is the primary architect of such expenditure policies, and without regard to whether the monies wind up in private hands. Moreover, this amicus brief is the only one to delve deeply into the question, related to that posed in Hein, of the standing of state and local taxpayers to raise Establishment Clause questions in the courts. The brief cites a wide variety of such suits from the state courts. Although the states have a variety of technical rules to govern taxpayer standing, the brief argues that no state's policies on taxpayer suits distinguish between legislative and executive origination of the expenditure, or between internal expenses and grants to parties outside of government.
Several other groups have also filed on the side of FFRF in this case. The brief on behalf of the American Atheists, Inc. is highly supportive of the particulars of FFRF's lawsuit, both on the question of standing and on the Establishment Clause question presented by the case. The brief points out that the FBCI-promoting conferences targeted by the lawsuit involve external expenditures (e.g., renting a hotel ballroom for the conference) as well as internal ones (paying the salaries of government officers who appear at the conferences), and argues that taxpayers should be able to challenge such expenditures in the same way they can challenge grants to religious entities. And a brief filed jointly on behalf of the Center for Inquiry and the Council for Secular Humanism argues that Congress did indeed intend that its appropriations for the White House and various federal agencies should be spent in promotion of the FBCI. The brief assembles evidence from congressional-executive interactions over the past six years that Congress was highly aware of the FBCI, and made appropriations for administration of federal agencies knowing that the monies would be used to promote the FBCI. The brief asserts that this awareness and interaction renders the challenged expenditures for the conferences a product of congressional as well as executive decision, and brings the case well within the Court's prior rulings in Flast v. Cohen and Bowen v. Kendrick.
Our Appraisal of the Case
Although some of the government's amici have argued for overruling of Flast and repudiation of the doctrine of taxpayer standing in Establishment Clause cases, we do not expect that sort of sweeping and dramatic decision in this case. Just a year ago, the Court expressed approval of Flast in an opinion rejecting taxpayer standing to challenge a policy that did not involve religion. Chief Justice Roberts, who wrote that opinion, is well-known to favor narrow rather than broad constitutional decisions, and his vote would appear to be necessary to accomplish any dramatic change in the law. Moreover, Justice Kennedy, who is not hospitable to broad Establishment Clause norms and who may side with the government in this case, is himself well-known for preferring to keep the judiciary actively involved in most constitutional questions, and therefore might be disinclined to favor a highly limited doctrine of standing.
We thus believe that the case will be decided on narrow grounds of the sort reflected in the government's brief - whether the size of congressional fingerprints on the expenditure is dispositive, and whether the expenditure's internal rather than external quality matters. Justices Ginsburg, Souter, and Stevens are likely to side with FFRF. Justices Scalia, Thomas, and perhaps Justice Alito are likely to side with the government, and may even be willing to severely limit the scope of Flast v. Cohen. The votes of Chief Justice Roberts, Justice Kennedy, and Justice Breyer (always a wild card in cases about religion and the Constitution) are likely to determine the outcome, and we do not expect that any of these three will join in an effort to dismantle the existing law of taxpayer standing. We are thus predicting a 5-4 or 6-3 decision, on narrow grounds, and that decision could easily go either way. If the decision is in favor of FFRF, the case will return to the district court for a decision on FFRF's challenge.[10]
If we are correct in our appraisal of the Supreme Court's likely treatment of the issue of taxpayer standing, the case of Hein v. FFRF will break little new ground and have little effect on other Establishment Clause litigation. If, however, a group of five Justices agrees to cut back significantly on Flast's special consideration for taxpayers in Establishment Clause litigation, Hein v. FFRF could mark the beginning of a long and deep retrenchment in such litigation, in which cases about expenditures (federal, state, and local) and cases about government religious expression become considerably more difficult for plaintiffs to bring through the courthouse door. Such a retrenchment might embolden government entities to take steps that the current law of the Establishment Clause appears to forbid. For example, a governor might sponsor a religious revival meeting using funds appropriated to her office for general use. In that sense, the law of standing to raise Establishment Clause issues is a proxy for the underlying constraints of the Clause itself. The stakes in Hein v. FFRF may thus be considerably larger than first appear from the seemingly technical qualities of the issue presented.
Notes:
[1]. The Establishment Clause - "Congress shall make no law respecting an establishment of religion" - prohibits the government from actively promoting religious belief.
[2]. Frothingham v. Mellon, 262 U.S. 447 (1923).
[3]. 392 U.S. 83 (1968).
[4]. 487 U.S. 589 (1988).
[5]. 454 U.S. 464 (1982).
[6]. Alito's record on the U.S. Court of Appeals for the 3rd Circuit suggests that he may be likely to hold views on the scope of the Establishment Clause close to those of Justices Scalia and Thomas. Nevertheless, a unanimous Court joined in Chief Justice Roberts' opinion last Term in DaimlerChrysler v. Cuno, 126 S. Ct. 2961 (2006), in which the Court (while rejecting taxpayer standing to complain about state tax breaks for new businesses) had this to say about Flast v. Cohen: "Flast is consistent with the principle, underlying the Article III prohibition on taxpayer suits, that a litigant may not assume a particular disposition of government funds in establishing standing. The Flast Court discerned in the history of the Establishment Clause the specific evils feared by [its drafters] that the taxing and spending power would be used to favor one religion over another or to support religion in general.' The Court therefore understood the injury' alleged in Establishment Clause challenges to federal spending to be the very extraction and spending' of tax money' in aid of religion alleged by a plaintiff. And an injunction against the spending would of course redress that injury, regardless of whether lawmakers would dispose of the savings in a way that would benefit the taxpayer-plaintiffs personally."
[7]. Brief for Petitioner Jay Hein at 19.
[8]. Brief for Respondent FFRF at 19-21.
[9] The states joining the brief are Alabama, Colorado, Florida, Indiana, Michigan, Nevada, North Dakota, Oklahoma, South Carolina, Texas, Virginia and Washington State.
[10] We assess the merits of FFRF's lawsuit in our original legal update on the case, available online at: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=28.
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