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Charitable Choice/Faith-Based Initiatives

Reactions to the case:
"Hein v. Freedom From Religion Foundation"

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Information on the case itself is located in a separate essay

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Reactions to the ruling:

Dan Barker and Annie Laurie Gaylor, co-presidents of the FFRF wrote:

"Fasten your seat belts, kids. The stacked Supreme Court is careening to the right, and taking our Constitution along for a very bumpy ride. The Court on Monday ruled the president may do what Congress cannot--use federal tax dollars to promote religion without chance of taxpayer challenge or court review. ..."

"The Supreme Court has barred the courtroom door. Why deny us the chance to make our case? Clearly, the majority in Hein v. FFRF seeks not to uphold the Constitution but to muzzle criticism, and to insulate the Executive Branch from public accountability or judicial scrutiny. ..."

"The White House may now use taxpayer money to promote religion without complaint by citizens and without scrutiny by the courts. Talk about an imperial presidency!" 1

Greg Jones, writing for the Foundation for Moral Law, said:

"Justice Alito trotted out a meaningless distinction in Hein in order to avoid having to admit that the Court was simply wrong in Flast to grant taxpayer standing for Establishment Clause challenges in the first place.  While admitting error is difficult, it is not nearly so hard as trying to justify and maintain fabricated irrationalities in the law.  In all likelihood now the Court—and what’s worse, the country—will have to live with this error for many more years to come.  As Justice Scalia concluded, 'Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future.  The rule of law is ill served by forcing lawyers and judges to make arguments that deaden the soul of law, which is logic and reason.' That soul died just a little bit more today." 2 

In its opinion section, a New York Times editorial stated:

"The controlling opinion by Justice Samuel Alito offers a cockeyed reading of precedent and flimsy distinctions between executive branch initiatives and Congressionally authorized spending to deny private citizens standing to sue. That permits the White House to escape accountability when it improperly spends tax money for religious purposes." 3

An editorial in the Los Angeles Times stated:

"For nearly 40 years, the court has recognized that Americans may file lawsuits to block the government from improperly spending taxpayer money on behalf of religion. ... That sensible position, first articulated by Chief Justice Earl Warren in 1968, lets all taxpayers help enforce the establishment clause, which prohibits the government from aiding the establishment of religion."

"On Monday, however, two generations' worth of common sense went by the wayside as the court, in a mere plurality opinion, allowed taxpayers to challenge such spending if it is done by Congress but barred them from seeking redress if it is the president who authorizes the money. The court's reasoning was satisfying to no one and resulted in a strange fragmentation of the justices, with the chief leading two other colleagues in the main opinion, joined in concurrence by the bench's two most conservative members. The largest group of justices speaking with one voice actually was in dissent..."

The American Center for Law and Justice (ACLJ), a fundamentalist Christian legal advocacy group, wrote:

"Hein marks a significant victory for the President’s faith-based initiatives.  The decision rejected an attempt to expand Flast beyond direct Congressional appropriations into the realm of executive branch discretionary spending.  Hein will seriously impact future separationist attempts to challenge government policies under the Establishment Clause that have not actually injured them.  This will make it more difficult for those who seek to remove America’s religious heritage from the public arena to bring Establishment Clause lawsuits in the future." 4

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"Fz" posting to One More Political Blog wrote:

"... I can sue if Congress says 'Mr. President, spend this money on religious purposes,' but apparently I cannot sue if Congress says 'Mr. President, spend this money as you wish,' and he subsequently spends that money on religious purposes."

"This is simply absurd. If Congress violates the Constitution, we can call them on it, but if the President violates the Constitution, we can't? Please, someone show me some sanity! Oh, hey, it's Justice Souter:

'I see no basis for this distinction in either logic or precedent, and respectfully dissent. We held in Flast, and repeated just last Term, that the injury alleged in Establishment Clause challenges to federal spending is the very extraction and spending of tax money in aid of religion'." 5,6 [Punctuation altered for clarity]

Liberty Counsel, another fundamentalist Christian legal advocacy group, wrote:

"FFRF argued that taxpayers who objected to federal funding of the faith-based programs should be allowed to sue to block such funding. Today's ruling rejecting this claim creates a precedent that the mere status of being a taxpayer does not provide grounds to object to the federal government's spending based on an alleged violation of the Establishment Clause. Had the Court ruled the other way and allowed broad taxpayer standing to challenge the disbursement of federal funds, the floodgates of litigation would be open for any taxpayer to sue the federal government by claiming any number of federal disbursements caused them to be offended."

[Editor's note: In reality, only litigation on the basis of violation of the Establishment Clause of the First Amendment would have been able to go forward, if the Court had decided in favor of the FFRF.]

Liberty Counsel continued:

"Mathew D. Staver, Founder of Liberty Counsel and Dean of Liberty University School of Law, commented: 'The Freedom From Religion Foundation would like nothing more than to wield a wrecking ball across the land to demolish religious expression. The ruling by the Supreme Court is a significant setback to this organization's wrecking ball agenda'." 7

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References used:

  1. Dan Barker and Annie Laurie Gaylor, "Imperial Presidency Can Now Promote Religion. The Supreme Court has barred the courtroom door," FFRF, 2007-JUN-28, at: http://ffrf.org/
  2. Greg Jones, "One cheer for Hein," Foundation for Moral Law weblog, 2007-JUN-25, at: http://www.morallaw.org/
  3. "Three Bad Rulings," New York Times, 2007-JUN-26, at: http://www.nytimes.com/
  4. "Summary of Hein v. Freedom From Religion Foundation, Inc.," ACLJ, at: http://www.aclj.org/
  5. "Souter, J., dissenting..." Supreme Court collection, at: http://www.law.cornell.edu/
  6. "Fz," "Concerning Hein v. Freedom From Religion Foundation," One More Political Blog, 2007-JUN-26, at: http://ompblog.blogspot.com
  7. "Supreme Court Rules That Separationist Group Cannot Challenge Faith-Based Programs," Liberty Counsel, 2007-UN-25, at: http://lc.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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