The White House Office of Faith-Based and Community Initiatives which President Bush created in 2001, has its first legal challenge before the U.S. Supreme Court.
However, the challenge related to the constitutionality of the office, is technical in nature. The justices recently heard arguments on whether the taxpayers who brought forth the challenge have standing to file the lawsuit, not the merits of the faith-based program. The suit was brought by staffers of the Wisconsin-based Freedom From Religion Foundation.
If the high court sides with the foundation staffers, their suit, which questions the use of taxpayer money to fund the White House office and related activities, would be argued in lower courts.
More specifically, the justices were asked by the plaintiffs to relate this case to a 1968 high court decision, Flast v. Cohen, in which the court ruled that taxpayers had the right to sue when government funds were allegedly spent in violation of the First Amendment's Establishment Clause. In the Flast case, the court, in the 8-to-1 decision, allowed taxpayers to challenge congressional spending for private religious schools.
Last year, the Chicago-based 7th U.S. Circuit Court of Appeals allowed the foundation to pursue its lawsuit, alleging the administration gives faith-based programs an inside-track on federal grant programs that provide an array of social services. The federal government, in turn, appealed to the Supreme Court.
The arguments were presented before the justices by Washington lawyer Andrew Pincus on behalf of the foundation, and U.S. Solicitor General Paul Clement for the government.
It's the first major religion case to come before the Supreme Court since the President's two appointees, Chief Justice John Roberts and Justice Samuel Alito Jr., took their seats.
Roberts questioned whether opponents of the initiative would extend their concerns to the court itself.
"I don't understand under your theory why any taxpayer couldn't sue our marshal for saying, ‘God save this honorable court?'" Roberts questioned, making reference to the opening of each session of the court with a marshal's appeal.
Pincus, in turn, said a lawsuit in that situation would be baseless because marshals aren't violating the separation of church and state.
But, as examples, Pincus said if a president makes a trip to promote religion in America, that would not be a violation; however, spending taxpayer money on conferences promoting the faith-based initiative would amount to a violation on the grounds the program was established specifically for directing federal grants to religious groups instead of secular ones.
In this case, Pincus said conferences held by the office favored religious groups over secular groups. "The entire conference program was a program to further religion over non-religion," Pincus said.
Clement, in turn, said if the appellate court decision would stand, that would "create a roving license for any one of the more than 180 million taxpayers in the United States to challenge any action of the executive branch that offends that individual's own view" of church-state separation.
Numerous friend-of-the-court briefs were filed in connection with the case. Among those who sided with the atheist group's lawsuit was the American Civil Liberties Union. ACLU Legal Director, Steven Shapiro, said, "Tax dollars may not be used to subsidize religious activity. Barring taxpayers from enforcing this fundamental principle in court would effectively license the government to violate the Constitution."
Likewise, Baptist Joint Committee for Religious Liberty General Counsel, K. Hollman, said, the government's position threatens to insulate government spending in support of religion.
"This case is important to America's tradition of religious liberty because it addresses rules that allow lawsuits to protect our first freedom. The government dangerously seeks to restrict circumstances in which taxpayers can challenge activity in violation of the Establishment Clause.
As soon as government starts to meddle in religion, for or against, or takes sides in matters of religion, favoring one over another, someone's religious liberty is denied and everyone is threatened," Hollman said.
Another brief was filed by Americans United for Separation of Church and State.
Americans United Executive Director, the Rev. Barry Lynn, noted, "Taxpayers must have the right to make their case in court when the government oversteps its bounds and uses public funds to promote religion. After all, it's the taxpayers' money we're talking about here.
Don't slam the courthouse door in the face of Americans who are merely trying to maintain their constitutional rights. Government funding of religion is not only improper, but unconstitutional," Lynn said.
On a related note, conservative John Whitehead, founder and president of the Rutherford Institute, penned a column in the Legal Times, in which he said, a narrow definition of legal standing may someday come back to haunt religious conservatives.
"Because faith-based initiatives programs seem to favor Christians, these groups have aligned themselves with the current administration. But by relying on the artificial distinction between spending decisions by Congress and those by the executive branch, these particular Christian groups have taken an overly narrow view of the issue, and thus, failed to see the bigger picture–and the greater threats to religious freedom.
For example, would these same Christian groups be equally supportive if the White House, under a president not so sympathetic to Christians–decided to purchase menorahs for display in federal offices? What if the executive branch opted to produce pamphlets extolling the virtues of Wicca? Or what if, as Judge Richard Posner of the 7th Circuit pointed out, the homeland security secretary decided that, in order to reduce the threat of domestic terrorism by al-Qaeda, the U.S. government should build a mosque and employ an imam to conduct Islamic services using the agency's general funds?" Rutherford questioned.
Benjamin Bull, chief counsel of the Alliance Defense Fund, filed a brief on behalf of We Care America, a group that supports the faith-based program.
"Neither my client nor the government is arguing to do away with lawsuits to enforce the Establishment Clause," Bull said. He added that the high court needs to return to traditional notions of standing by reversing the Flast decision.
"Flast is the battleground here. This case is about whether Flast will survive. Down with Flast," Bull said.
If the case is allowed to proceed, Bull maintains that fewer charitable groups will seek or ask about possible funding under the faith-based program. In another brief filed by American Center for Law and Justice, Chief Counsel, Jay Sekulow, said the "Supreme Court has an important opportunity to put an end to federal taxpayer lawsuits by church-state separationists that is long overdue."
"There is no constitutional conflict in using taxpayer dollars to fund faith-based initiatives. This is a position we've advocated for years. The Supreme Court should leave the faith-based initiative alone, and focus instead on removing the special privileges that are afforded to atheists and others who are antagonistic to religion. These church-state separationists have been given a free pass in federal court to bring Establishment Clause lawsuits simply because something is taking place that they don't like. They have not had to show that a law or government activity actually injured them in any way before they could challenge it in federal court. All they had to do was show that they were taxpayers somewhere. That is not only unfair, but wrong. In no other area of the law are plaintiffs given a free pass to federal court simply because they are taxpayers. This Religion Clause exception to the traditional rules of legal standing should be put to an end. I am hopeful that the Supreme Court will put an end to this special treatment given to groups like the Freedom From Religion Foundation," Sekulow said.
Dr. Tony Evans, president of the Urban Alternative, was a major influence on George W. Bush to institute faith-based initiatives when he was governor of Texas in the mid-1990s.
"He kind of heard me in 1996 talk about why faith-based organizations are the best social service delivery systems, and he says, that inspired him when he was governor to start the faith-based initiative in Texas, which then became the faith-based initiative nationally," Evans said.
In the current court case, Evans said that the much bigger issue at stake is the validity of faith in the public square.
"Does faith have a visible public servant role in all of our culture? If they (Supreme Court) were to throw this out, it would open up all kinds of challenges to the presence of faith in any aspect of our culture. And unfortunately, it's a misuse and a misunderstanding of the so-called doctrinal separation of church and state.
The issue, is being able to be equally considered if the program is productive. The issue is, outcome. So, if an atheist can have an organization that serves people and support it because of successful outcome, then why can't an atheist have a successful organization that serves people and be supported for outcomes if we're providing the social services in a non-discriminatory way to people who voluntarily seek to take advantage of it? So, the issue is, not discriminating against either side," Evans said.
A decision by the Supreme Court is expected by July.
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