WASHINGTON – In a case that hinges on procedural questions of when a taxpayer has the legal standing to challenge how the administration spends money appropriated by Congress, the Supreme Court is being asked to open the door to legal fights over President George W. Bush’s faith-based initiative.
The only question before the court is the fairly dry issue of whether taxpayers have standing under the Establishment Clause of the Constitution to challenge actions of the executive branch that are only indirectly financed through general appropriations by Congress.
During oral arguments Feb. 28, Solicitor General Paul Clement argued that taxpayers only have the legal standing to challenge how the administration spends money when the funds are going directly to an outside source.
Attorney Andrew Pincus, arguing on behalf of the Freedom From Religion Foundation, a group of Wisconsin-based atheists and agnostics, argued that because the meetings organized by the White House were religious in character it was unconstitutional for them to be paid for with U.S. government money. Because the funding came from Congress and the events were religious in character, it’s fair to expect taxpayers to have the right to challenge the expenditures, he said.
At the heart of the lawsuit, the foundation argues that the administration organized events as part of the White House Office of Faith-Based and Community Initiatives to advance funding for faith-based organizations, to the detriment of nonreligious community groups that also were eligible to participate.
The complaint argued that the administration’s programs to promote its faith-based and community initiatives served as “propaganda vehicles for religion,” and that events were little more than religious meetings.
But a federal district court in Wisconsin dismissed the lawsuit, saying the Freedom From Religion Foundation lacked legal standing, or the right to appear in court. The ruling said the Establishment Clause claim failed to show that the activities of the executive branch were “examples of congressional spending power,” and therefore denied standing to the foundation.
A three-judge panel of the 7th U.S. Circuit Court of Appeals disagreed, and reinstated the lawsuit.
“Taxpayers have standing to challenge an executive branch program, alleged to promote religion, that is financed by a congressional appropriation, even if the program was created entirely within the executive branch,” wrote Judge Richard Posner.
The current case at the Supreme Court is the federal government’s challenge to that 7th Circuit ruling.
In the oral arguments at the Supreme Court, discussion alternated between analysis of previous court rulings on the legal standing of taxpayers and often light-hearted banter among the justices and the attorneys about exactly what sorts of expenditures might constitute sufficient government involvement to warrant the court’s intervention.
In the case of a prayer breakfast in which the administration is involved, for example, said Pincus, “The challenge is to the discriminatory purchase. It’s not about the prayer breakfast; it’s about the idea that the government is purchasing bagels in a religiously discriminating way.”
The court’s decision could affect other efforts by taxpayers to sue over how federal funds are used by the administration. In his decision for the 7th Circuit, Posner wrote that limiting who can sue the administration in such cases could lead to violations of the Establishment Clause “because there is so much that executive officials could do to promote religion in ways forbidden by the Establishment Clause.”
A ruling in Hein v. Freedom From Religion Foundation is expected before the court adjourns for the summer.