Slamming the Courthouse Door on Church-State Cases?
Boston, Rob, The Humanist
IN FEBRUARY the Supreme Court heard oral arguments in an important case that could affect the right of all U.S. citizens to be free from government-sponsored religion.
The case, Hein v. Freedom From Religion Foundation, looks complex and esoteric on the surface but presents a compelling question: When do citizens have the right to challenge government actions that promote religion?
Hein deals with a three-year-old controversy over the so-called "faith-based" initiative. In 2004 the leaders of the Madison, Wisconsin-based Freedom From Religion Foundation sued various federal agencies, asserting that governmental advocacy of the initiative through the establishment of various faith-based offices and a series of regional conferences for clergy violates the separation of church and state.
In legal documents, the organization's attorneys argued that these conferences were clearly designed to urge religious organizations to seek taxpayer support. Thus, they favored religion over non-religion in violation of the First Amendment.
The case was rejected by a federal court, then reinstated on appeal and has now reached the nation's highest court. But interestingly, no court has yet addressed the core question raised by the case: Did these actions by government officials to promote the faith-based initiative violate the First Amendment? Rather, the legal fight has become bogged down in a dispute over "standing"--the right to sue.
Americans hear so much about lawsuits that the right to sue is taken as a given. Many Americans assume that as taxpayers they have an automatic right to challenge government actions. This isn't always so.
When it comes to church-state cases that center on tax funding of religion, the right to sue rests on a landmark 1968 Supreme Court case called Flast v. Cohen. In that decision a court majority ruled that taxpayers could challenge aspects of a federal education law that aided religious schools. Thus, a right that many Americans take for granted was codified less than forty years ago, and some far-right activists want to roll it back completely.
Other rulings have already curbed the right to sue in different contexts. In 1982 Americans United for Separation of Church and State (AU) lost a case at the Supreme Court challenging the federal government's decision to give surplus land to a religious college. A court majority ruled that AU had no standing to bring the case. Thus, the central issue of the land transfer was never seriously examined by any court.
The Hein case is important because it challenges an executive action. President George W. Bush, unable to get his faith-based initiative through Congress, has implemented much of it through executive orders and regulatory changes. The conferences in question were paid for with discretionary funds through the White House Office of Faith-Based and Community Initiatives. In court papers, the Justice Department argues that the Freedom From Religion Foundation has no right to sue because no congressional appropriations are involved.
At the U.S. Seventh Circuit Court of Appeals, Judge Richard A. Posner was clearly skeptical of this contention. He pointed out that under this rule, there would be nothing to stop the Department of Homeland Security from using discretionary funds to set up a mosque and pay an imam to preach a moderate version of Islam. …