Magazine article Church & State

Hour of Decision: Supreme Court Will Decide Whether Taxpayers Can Challenge President Bush's 'Faith-Based' Crusade

Magazine article Church & State

Hour of Decision: Supreme Court Will Decide Whether Taxpayers Can Challenge President Bush's 'Faith-Based' Crusade

Article excerpt

Speaking at a White House conference on the "faith-based" initiative in October of 2002, Rod Paige, then U.S. secretary of education, offered up a testimony about his boss's personal religious commitment.

"Now, President Bush does this because he knows first-hand the power of faith to change lives, from the inside out," Paige told the assembled religious leaders in Washington, D.C.

"And the reason he knows this," Paige continued, "is because faith changed his life.... So the reason we're all here today is not because some politician needs to knock off one more thing on his 'to do' list. We are here because we have a president who is true, is a true man of God--a man who prays every day. And I think together, we can really make a difference for mankind, for Americans, we can make America a better place."

Halfway across the country in Madison, Wisc., officials at the Freedom From Religion Foundation (FFRF) sat and stewed.

Foundation members had grown weary of hearing public officials delivering sermons and promising religious groups access to the public purse. Over the next few years, it only increased as the White House sponsored a series of regional conferences around the country to urge religious groups to apply for tax aid.

In June of 2004, FFRF officials decided to attack the Bush faith-based initiative by filing a federal lawsuit challenging the creation of various faith-based offices at federal agencies and targeting the conferences.

Two and half years later, the case has landed at the Supreme Court--in a curtailed form. On Feb. 28, the high court will hear oral arguments in Hein v. Freedom From Religion Foundation, but the justices won't be deliberating the constitutionality of the faith-based initiative. Rather, they will decide whether FFRF has the fight to sue in the first place.

The Foundation's legal offensive was a risky move. Never approved by Congress, the initiative was put into place primarily through executive orders issued by President George W. Bush and through regulatory changes affecting various cabinet-level departments and lower federal offices.

Given this indirect method of implementation, it was unclear whether a traditional church-state separation lawsuit could be used to block the centers and conferences promoting the initiative.

Nevertheless, the Foundation decided to try. On June 17, 2004, the group filed a lawsuit listing three of its top officers as plaintiffs. The four-page legal complaint asserted that the creation of faith-based offices violated the First Amendment and that these offices spawned further violations by holding a series of events aimed at helping religious groups win tax support.

The events, the Foundation asserted in its legal complaint, favored religion by singling out faith-based groups as "particularly worthy of federal funding because of their religious orientation." It also argued that the federal government had sent "messages to non-adherents of religious belief that they are outsiders, not full members of the political community, and the defendants send an accompanying message to adherents of religious belief that they are insiders, favored members of the political community."

Two federal courts have considered the case in the more than two years since it was filed, yet neither has dealt with the core issue it presents: Did these actions by government officials violate the separation of church and state? Instead, the case has become bogged down over the issue of "standing"--the fight to sue.

A federal court first tossed the case out, ruling that the Foundation lacks the legal fight to challenge the faith-based offices and their conferences, since these actions were never directly authorized by Congress. A federal appeals court later disagreed, ruling 2-1 that the Foundation can proceed with its case.

FFRF Co-President Annie Laurie Gaylor said the 8,000-member organization first got interested in the question after becoming convinced that the White House was improperly favoring religion. …

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