Establishing Religion by Executive Order
by
John
Cosgriff
Leaving the big tough
cases to last as usual, the U.S. Supreme Court unleashed a trifecta of 5-4
First Amendment decisions on June 25, the next-to-last day of this year’s
session. These dealt with campaign finance reform, student speech, and the
ability of taxpayers to challenge government violations of the separation of
church and state.
Less relevant in an election cycle than campaign finance, less sexy than the
“Bong Hits 4 Jesus” free speech case, and turning on a technical legal
question, Hein v. Freedom from Religion Foundation garnered by
far the least media attention. But its significance could outstrip both of
its companion cases.
In
2001, fulfilling a campaign promise, the Bush administration created the
White House Office of Faith Based & Community Initiatives (OFBCI), which
encouraged religious groups to seek federal funding to provide social
services. The administration claimed there was an “uneven playing field” for
religious organizations to receive federal social service monies, and it
organized “prayer breakfasts” to bring them to Washington and let them know
how to obtain the funds.
At
one of these, President Bush told attendees, “If you’re addicted to alcohol,
if a faith program is able to get you off alcohol, we ought to say,
hallelujah and thanks, at the federal level.” No such breakfasts were held
for secular organizations.
The administration’s initiative did not sit well with the executives of the
Freedom from Religion Foundation (FFRF), a Madison, Wisconsin, group
dedicated to “American Freethought.” In 2004, the FFRF sued the OFBCI,
claiming that the White House “was unfairly using taxpayer money to favor
the activities of religious groups” and “give faith-based organizations
preferred positions as political insiders” by “endorsing religious belief
over non-belief.”
In its original filing, the FFRP claimed it had the standing to sue
because its members were taxpayers. But the government argued that taxpayers
could challenge a federal expenditure of funds benefiting religion only if
the expenditure had been authorized by Congress. (The Establishment Clause,
with which the First Amendment begins, reads, “Congress shall make no law
respecting an establishment of religion…”) In this case, it was an executive
order of the president, not a specific act of Congress, that set up the
OFBCI.
Do
taxpayers have the right to challenge a program established by the Executive
Branch that uses only generally allocated funds from Congress?
The FFRF based its claim on a 1968 case, Flast v. Cohen, which ruled
that any taxpayer has standing to sue to prevent the disbursement of federal
funds in a way that violates the Establishment Clause. Establishment Clause
cases thus became the only ones where citizens do not need to show that they
have sustained particular damages in order to sue.
David Stras, a University of Minnesota Law School professor who contributes
to the Supreme Court blog Scotusblog, expressed a widely held reservation
about Flast in a June 26 posting:
“I
have never fully been able to rationalize the Flast
exception: What makes the Establishment Clause so special that it warrants a
special exception to the Court’s standing doctrine? How is it different than
Congress earmarking funds expressly for racially discriminatory private
schools? Most taxpayers would be just as angry and just as ‘harmed’ if
Congress gave money to racially discriminatory schools (perhaps even more
so) as they would be if Congress expressly appropriated funds to religious
schools. Yet a taxpayer would have no standing in the former case and
inexplicably would have standing to sue in the latter scenario.”
Although Chief Justice Earl Warren, who wrote for the majority in Flast,
seemed to entertain the possibility that taxpayers would eventually acquire
standing to sue in other than Establishment Clause cases, he made it clear
in his opinion why the Establishment Clause in particular warranted this
right: “Our history vividly illustrates that one of the specific evils
feared by those who drafted the Establishment Clause and fought for its
adoption was that the taxing and spending power would be used to favor one
religion over another or to support religion in general.”
Writing in the September 27 New York Review, NYU (and University of
London) law professor Ronald Dworkin made a case for the Flast
exception with admirable succinctness:
“When acts of government violate other constitutional rights, the
government’s expenditure is only a means to a further injury. When
government jails someone without due process, for example, it harms him not
by spending money on jails but by putting him in one. The establishment
clause is different: when government violates that clause by spending money
in support of religion, the expenditure is not just a means to some further
harm. The expenditure is itself the harm. It is part of people’s right to
freedom of conscience that their government, acting on their behalf and in
their name, not support any religion or religious institution.”
Explaining so technical a legal issue to readers proved to be to much of a
challenge for many newspapers. “It seems like the kind of dry, legalistic
dispute that only a lawyer could love,” the Los Angeles Times’
Andrew Coan wrote after the February 22 oral argument. “But the appearance
is deceiving.”
Perhaps because of the technical complexities, there was little journalistic
attention to what the administration really wanted the outcome of the case
to be. While many noted a humorous exchange between Justices Scalia and
Breyer over whether taxpayers would be able to buy bagels for a prayer
breakfast, few reported that the administration’s purpose was to do away
entirely with the taxpayer right to sue established by Flast. Only
Supreme Court observer Roger Friedman, posting on Scotusblog February 28,
noted that Solicitor General Paul Clement did not seem to care whether he
won the case on its merits but rather “engaged in a kabuki dance to justify
the overruling of Flast.”
When the dust settled, the new conservative majority of the court had
expanded the power of the Executive to reach out to religious organizations.
The Boston Globe’s Michael Kranish had it just right when he
pointed out June 26, “The faith-based case is particularly important,
because it protects Bush’s programs from legal challenges and indicates that
the court will be less concerned about keeping church and state separate, so
later decisions will be more sympathetic to government’s cooperating with
religious institutions.”
Most reporters, however, seemed to agree with Slate’s Dahlia
Lithwick, who wrote that “the enduring lesson of Hein may just be
that the law is so confusing that it’s unclear whether the constitutional
violation is the hypothetical prayer breakfasts or just the hypothetical
bagels.”
Flast
was not thrown out in its entirety (as advocated by Justices Scalia and
Thomas), but its reach was severely limited. While still having standing to
challenge congressional appropriations for religious purposes, taxpayers
must now show direct injury in order to challenge any executive action that
seems to violate the Establishment Clause.
Posting on Scotusblog June 27, Friedman made the point that the Court was
increasingly reducing standing to “wallet issues,” as Scalia puts it. “Yet
non-financial values are important to this country,” Friedman wrote. “The
founders saw the strife that official religion brought to the polity and
sought to bar it. That many of us enjoy the benefit of this vision should
not mean that none of us can challenge it.”
A
few newspapers voiced their approval of the decision. On June 30, the
Cleveland Plain Dealer, citing the good deeds of such groups as Catholic
Charities and the Salvation Army, pronounced, “In America, faith contributes
to the ethical foundation of a majority of its citizens.”
More papers opposed the ruling, but wrote about it only in the general
context of the Court’s overall shift to the right on rights issues. The
San Francisco Chronicle was typicial, opining on July 5, “At stake is
the curtailment of rights—to reproductive freedom, to public dissent, to
redress in the courts—that many Americans can no longer take for granted.”
Hein
v. FFRF shows the new Roberts Court’s willingness to give the federal
government more power to support religion. In his concurring opinion,
Justice Anthony Kennedy (the swing vote) issued a plaintive reminder that
just because the Judicial Branch of government was preventing citizens from
acting, didn’t mean the other branches could turn away:
“It must be remembered that, even where parties have no standing to sue,
members of the Legislative and Executive Branches are not excused from
making constitutional determinations in the regular course of their duties.
Government officials must make a conscious decision to obey
the Constitution whether or not their acts can be challenged in a court of
law and then must conform their actions to these principled determinations.”
After the experience of the past six years, it’s hard to place much
confidence in such decision making, or such conformity. |