Suppose you pick up the daily newspaper and read that President George W. Bush has authorized the expenditure of $5,000,000 of public funds under his faith-based programs for construction of a new Baptist church in Texas by young Christians learning the skilled trades. You are incensed at what you see as a flagrant violation of the Establishment Clause in the First Amendment. But what can you do, legally, to stop the President and preserve the Constitution? You can write a letter to the editor, you can picket the White House, and you can unload on a blog. What you cannot do, however, as of June 25, 2007, the date of the Supreme Court ruling in Hein v. Freedom from Religion Foundation, Inc.(Case No. 06-157), is to file a lawsuit.
The Freedom from Religion Foundation, Inc., which is dedicated to preserving the separation of church and state, had challenged the Bush administration's faith-based programs by filing suit against the director of the White House Office of Faith-Based and Community Initiatives and the heads of eight additional faith-based offices in the executive branch. President Bush had created these by executive orders soon after he took office after attempts by the White House to get Congressional approval of them failed. In the 5-4 Hein ruling, the Court's right wing caucus - Justices Roberts, Alito, Thomas, and Scalia, - joined by swing-vote Kennedy, held that there is an important distinction between expenditures authorized by Congress and those authorized by the President. Taxpayers, the majority said, have standing to challenge the former but not the latter. Since "the White House Office of Faith-Based and Community Initiatives was set up by executive order rather than by congressional line item, the case was dismissed for lack of standing." (1)
Remarkably, Justice Alito, writing for the majority, didn't even try to defend this distinction. Justice Souter, in his dissent, said: "I see no basis for this distinction in either logic or precedent." Further, commentators by the dozens have attacked it. For instance, Vikram David Amar, professor of law at the University of California, Hastings College of Law, says that "The line the Hein Court draws - between Congress and Executive programs to promote religion - makes absolutely no sense." The reason, Professor Amar points out, is that the Constitution says that "no Money shall be drawn from the Treasury, but in Consequence of Appropriation made by Law." In other words "...all expenditures owe their legitimacy to Congressional authorization." Given this, "it makes little sense," he observes, "to distinguish between expenditures" explicitly directed by Congress and "those which arise from Executive discretion." "..Congress can be assumed to agree with (such Executive spending)," Professor Amar concludes, or "else it would cut off or limit the appropriations." (2)
As misguided as the Hein decision was, it could have been worse. Justices Scalia and Thomas sought, unsuccessfully, to persuade their peers to deny standing to taxpayers to challenge appropriations for religion by the Congress by overturning the Flask v. Cohen ruling of 1968. But stay tuned. The five justices who closed the court house doors to those seeking to block spending by a President to promote religion are relatively young and have many, many years to recast the law.
1. Garrett Epps, "Free Speech for the Rich and Powerful," Salon, June 29, 2007.
© Tom Shipka 2007