Supreme Court Rules Taxpayer's Can't Challenge Admistration's Faith-Based Initiatives

By Daniel Healy, CAPLAW

A divided U.S. Supreme Court ruled in June that taxpayers do not have the right to sue to challenge the creation and activities of the Bush Administration’s offices of faith-based and community
initiatives.(1)

       President Bush created the White House Office of Faith-Based and Community Initiatives and similar offices within various federal departments by executive order.(2) The faith-based offices hold conferences and conduct other activities designed to enable religious organizations “to compete on a level playing field” with nonreligious organizations for federal social services funding.(3) The faithbased offices and their activities are funded through general executive
branch appropriations, and not by specific congressional appropriations.

       Members of the Freedom from Religion Foundation, Inc. (FFRF) sued in their capacity as taxpayers, arguing that the Bush Administration’s use of money appropriated by Congress to fund the activities of the faith-based offices violated the First Amendment’s Establishment Clause. That clause states that “Congress shall make no law respecting an establishment of religion.”(4)
A federal district court dismissed the case on the ground that the taxpayers lacked standing to sue. A federal appeals court reversed the lower court’s decision and the Bush Administration appealed to the Supreme Court. (For coverage of the appeals court decision, see May 2006 CAPLAW Legal
Update, p. 10.)

       The issue before the Supreme Court in this case, Hein v. Freedom From Religion Foundation, Inc., was whether the taxpayers had standing to sue over an alleged Establishment Clause violation where Congress had not specifically appropriated money for the challenged activity. Historically, the Court has held that status as a federal taxpayer does not give a party standing to challenge the use of federal funds. However, in its 1968 decision in Flast v. Cohen, the Court created a narrow exception to this general rule.(5) In Flast, the Court held that taxpayers have standing to sue over the use of federal funds only when they are challenging an exercise of Congress’s power to tax
and spend(6) on the ground that it unconstitutionally promotes religion in violation of the Establishment Clause.

       FFRF argued that the Flast exception should be applied broadly to cover any expenditure of government funds in violation of the Establishment Clause. FFRF contended that it is arbitrary to
differentiate between money spent under a congressional mandate and expenditures made in the course of executive discretion. According to FFRF, the injury to taxpayers in both situations is the
same – government use of the “taxing power to force taxpayers to provide financial support for religion” – and is the very injury the Establishment Clause and the taxpayer standing exception in Flast are intended to address.

       However, the Supreme Court rejected this broad interpretation of Flast and ruled that FFRF lacked standing to challenge the use of federal funds to support President Bush’s faith-based initiatives. Writing for a plurality of three justices, Justice Samuel Alito concluded that the link between congressional action and constitutional violation that established taxpayer standing in Flast
was missing in this case; here, Congress did not appropriate funds for faith-based initiatives, but instead appropriated a lump sum to the executive branch for discretionary spending. According Justice Alito, to permit taxpayer challenges of any expenditure of government funds would violate the principle of separation of powers by permitting the federal courts to “superintend, at the behest of any federal taxpayer, the speeches, statements and myriad daily activities of the President, his staff and other Executive Branch officials.”(7) Justice Alito observed that to permit such challenges would also obstruct judicial efficiency by turning the federal courts into “general
complaint bureaus.”(8)

       The justices voted 5-4 to deny taxpayer standing to FFRF. Chief Justice Roberts and Justice Kennedy joined Justice Alito in the plurality opinion. Justices Scalia and Thomas concurred in the
Court’s decision that the FFRF taxpayers lacked standing, but concluded that the Court should have overturned Flast. Justices Souter, Stevens, Ginsberg and Breyer dissented.

1 Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553 (2007)
2 See Executive Order 13198, 66 Fed. Reg. 8,497 (Jan. 29, 2001);
Executive Order 13199, 66 Fed. Reg. 8,499 (Jan. 29, 2001); Executive
Order 13279, 67 Fed. Reg. 77,141 (Dec. 12, 2002); Executive Order
13280, 67 Fed. Reg. 77,145 (Dec. 12, 2002); Executive Order 13342, 69
Fed. Reg. 31, 509 (June 1, 2004); and Executive Order 13397, 71 Fed.
Reg. 12275 (Mar. 7, 2006) (“Executive Orders”). The Executive Orders
are available online at www.whitehouse.gov/government/fbci/
executive-orders.html.
3 See Executive Orders and White House Faith-Based and Community
Initiatives website www.whitehouse.gov/government/fbci/
president-initiative.html.
4 U.S. Const. amend. I.
5 392 U.S. 83 (1968).
6 See U.S. Constitution, art. I, § 8.
7 Hein, 127 S. Ct. at 2570.
8 Id. at 2559.