Supreme Court limits challenges to administration’s Faith-Based Initiative

June 25, 2007
FOR IMMEDIATE RELEASE

WASHINGTON — In a 5-4 opinion, the U.S. Supreme Court has ruled that citizens do not have standing as taxpayers to sue the government over portions of the President’s Faith-Based Initiative.

In this case, the Freedom from Religion Foundation challenged aspects of the White House Office of Faith-Based and Community Initiatives, specifically several conferences designed to increase the participation of religious groups in providing social services. The Foundation claims the conferences were vehicles for proselytization and violated the Constitution’s protection against government establishment of religion. The government argues that the plaintiffs lack standing to sue.

The issue of “standing to sue” requires plaintiffs to show they are appropriate parties to a lawsuit, including that have been injured by a defendant’s action. In Flast v. Cohen, the Supreme Court recognized that taxpayers may satisfy standing requirements when challenging government spending in violation of the Establishment Clause.

In Hein, The Baptist Joint Committee for Religious Liberty filed an amicus brief with other organizations supportive of church-state separation. In it, BJC General Counsel K. Hollyn Hollman argued that the Court’s previous decision in Flast v. Cohen “is consistent with, and remains vital to, [the Supreme Court’s] standing jurisprudence.”

“When taxes levied and appropriated by Congress are spent in violation of the Establishment Clause, a taxpayer may constitutionally challenge such expenditures because he suffers a direct and concrete injury that is caused by the illegal expenditure and that would be redressed by enjoining it,” the BJC brief states.

BJC Executive Director J. Brent Walker expressed disappointment in the decision, but said there was some good news in it, as well.

“Justice Alito’s plurality opinion expressly declines to overrule Flast,” Walker said. “When combined with the dissenters, seven justices embraced Flast, with only Justices Scalia and Thomas voting to overrule it.

“It will be more difficult to challenge discretionary executive branch spending under the Establishment Clause. Nothing has changed when it comes to challenging the exercise of Congress’s taxing and spending powers to promote religion,” Walker said.

The case is Hein v. Freedom from Religion Foundation.

Click here to read the BJC amicus brief: BJCAmicusBrief.pdf