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Religious Tolerance logo

Charitable Choice/Faith-Based Initiatives

Church-state separation breached in
"Hein v. Freedom From Religion Foundation"

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While George W. Bush was governor of Texas, he became convinced that churches could do a better job of providing social services than the government. One of the main components of President Bush's compassionate conservatism philosophy is his faith-based initiative program. It funnels federal tax dollars to local religious groups to help them provide services to the poor, to addicted persons, and to others in need of support.

Unless these programs are administered with extreme care, they will run afoul of the principle of separation of church and state as required by the First Amendment of the U.S. Constitution.

In the Hein v. Freedom From Religion Foundation case, the U.S. Supreme Court limited the freedom of ordinary citizens, and their organizations, to sue the Executive branch of the government for infractions of the Establishment Clause of the First Amendment. 1 That clause states that: "Congress shall make no law respecting an establishment of religion."

The Roundtable on Religious & Social Welfare Policy organization states that, after Hein, taxpayers and taxpayer groups cannot sue the:

"... government over funding to religious organizations unless Congress has specifically authorized the programs that provide the money. Citizens may not sue over purely discretionary actions of the President and his administration paid for out of general administrative funds. ... Lacking congressional support, the federal Faith-Based and Community Initiative has been advanced largely by executive orders issued by the President rather than legislative action." 2

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The case:

The original case was Freedom From Religion v. Towney. It was filed in 2004-JUN and involved the sponsorship by the White House Office of Faith-Based and Community Initiatives' (OFBCI) of a series of regional conferences on federal aid to religious groups. The Freedom from Religion Foundation (FFRF) is a group of about 10,000 members, most of whom would describe themselves as Agnostics, Atheists, Humanists, non-theists, freethinkers, and/or secularists.3 They accused officials of nine federal agencies and the OFBCI of sending:

"... messages to non-adherents of religious belief that they are outsiders, and the defendants send an accompanying message to adherents... that they are insiders, favored members of the political community."4

The FFRF's lawyer, Richard L. Bolton, claimed that federal employees both promoted their program and awarded grants that were biased in favor of faith-based and against secular organizations. Bolton said that the government sponsored promotional meetings that were"

"... de facto revival meetings [that would] pay lip service to faith-based organizations while giving hardly a nod to other secular groups." 4

FFRF co-founder and a plaintiff. Annie Laurie Gaylor, said:

"They're not leveling the playing field. They're cajoling religious organizations to come to them and telling them how to fill out the grant forms and giving untried groups money. We think it's about promoting religions." 4

The Roundtable on Religious & Social Welfare Policy commented:

"Portions of the lawsuit, involving government grants to specific religious organizations, were allowed to move forward under different case names. As the case moved upward through the federal courts, the issue remaining for the Supreme Court to decide was taxpayer standing - whether ordinary citizens have the right to sue in cases involving the Establishment Clause." 2

The trial court found that the FFRF did not have standing to sue the Executive branch of the Federal Government. The case was appealed to the Seventh Circuit Court of Appeals where the trial court's ruling was reversed. In an unusual move, Chief Judge Joel M. Flaum of the Court of Appeals wrote that only the U.S. Supreme Court could finally settle the issue. 5

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The ruling by the Supreme Court:

On 2007-JUN-25, and by the usual 5 to 4 vote, a deeply divided court ruled that individual taxpayers and their organizations cannot sue the Faith-Based and Community Initiatives program of the federal government on the grounds that the latter violated the establishment clause of the First Amendment of the U.S. Constitution, unless Congress had specifically authorized the programs that supply the funding. Initiatives by the president and his administration that are paid out of general administration funding sources cannot be challenged.

There was no majority opinion. The court was divided among three factions:

bulletJustice Samuel Alito wrote the ruling; he was joined by Chief Justice Roberts and Justice Kennedy.
bulletJustices Scalia and Thomas, the two strictest constructionists on the court, agreed with the decision. However, they were in favor of going further by overturning Flast v. Cohen. That case was decided in 1968, and gave individuals and their organizations the ability to sue Congress on matters relating to the separation of church and state.
bulletFour Justices -- Souter, Stevens, Ginsburg and Breyer -- dissented.

Ira C. Lupu, a law professor at George Washington University and co-director of legal research for the Roundtable on Religion and Social Welfare Policy, said:

"The outcome in Hein is not a surprise, and the court's action is not likely to produce any major change in the ability of taxpayers to get the courts to enforce the Establishment Clause. In cases in which legislatures -- Congress, state legislatures, or local legislative bodies -- have authorized social service programs, and these legislating bodies can foresee the possibility that religious entities may receive public support, taxpayers can still go to courts to complain that the government is impermissibly supporting religious activity." 6

President Bush was pleased with the ruling. He released a statement saying:

"Today's Supreme Court decision marks a substantial victory for efforts by Americans to more effectively aid our neighbors in need of help. The Faith-Based and Community Initiative can remain focused on strengthening America's armies of compassion and expanding their good works." 6

Jay Hein, defendant and director of the White House Office of Faith-Based and Community Initiatives agreed. He said:

"The bottom line to the decision today is we think it enables us to keep doing what we're intended to do, which is help all of those who are interested in helping the poor. The administration believes that government does better when it works with every partner, whether faith-based or secular, large or small." 6

Annie Laurie Gaylor, co-president of the FFRF, said:

"Given the roster of terrible decisions 5-4 this spring, our loss was not unexpected. What was I think the saving grace was that Flast v. Cohen was upheld. There was great suspense about how far this new court was going to go. I was pleased that there were only two justices ... who were such bullies that they wanted to overturn all taxpayer rights." 6

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Reactions to the decision are located in a separate essay

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References used:

  1. U.S. Supreme Court. "Jay F. Hein v. Freedom From Religion Foundation," Court ruling, at: http://www.religionandsocialpolicy.org/
  2. "Jay Hein, Director, White House Office of Faith-Based and Community Initiatives et al. v. Freedom From Religion Foundation, Inc. et al.," The Roundtable, 2007-JUL, at: http://www.religionandsocialpolicy.org/
  3. The Freedom From Religion Foundation's home page is at:
  4. Anne Farris, "Lawsuit Challenges Bush Administration's Faith-Based Initiative," The Roundtable, 2004-JUN-21, at: http://www.socialpolicyandreligion.org/
  5. Claire Hughes, "Supreme Court Asked to Rule in Challenge Against Bush Faith-Based Initiative," The Roundtable, 2006-MAY-09, at: http://www.socialpolicyandreligion.org/
  6. Claire Hughes, "Supreme Court: Taxpayers May Not Challenge Promotion of Faith-Based Initiative," The Roundtable, 2007-JUN-25, at: http://www.religionandsocialpolicy.org/

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Copyright © 2007 by Ontario Consultants on Religious Tolerance
Originally written: 2007-JUL-11
Latest update: 2007-JUL-11
Author: B.A. Robinson

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