Quick look: Hein v. Freedom from Religion Foundation

Friday, June 29, 2007

Case name: Hein v. Freedom from Religion Foundation

Background: The Freedom from Religion Foundation, a Madison, Wis.-based taxpayers’ group that opposes government endorsement of religion, filed suit in U.S. District Court against the directors of President George W. Bush’s Office of Faith-Based and Community Initiatives. The group said that by organizing conferences that were designed to promote religious community groups over secular ones, the federal office violated the First Amendment’s establishment clause. The district court dismissed the claims for lack of standing, citing a 1968 Supreme Court ruling, Flast v. Cohen, that allowed taxpayers to challenge government actions (specifically those involving congressional power) that violate the establishment clause. Because the president created the office by executive order without specific congressional legislation, the district court held that the group had no taxpayer standing under Flast to challenge the office. The 7th U.S. Circuit Court of Appeals reversed this decision, interpreting Flast as allowing federal taxpayers to challenge executive-branch programs on establishment-clause grounds if the activities in question are funded by a congressional appropriation, even if those funds are designated for general administrative expenses. The appeals court ruled that a taxpayer has standing to challenge any action by a federal agency if the marginal cost to the public of the alleged establishment-clause violation is greater than zero. Hein, director of the faith-based office, took the case to the high court.

Ruling: The Supreme Court ruled 5-4 that the foundation had no standing to challenge the initiative because money used in Bush’s faith-based initiative was general treasury money that was spent by the executive branch without any specific congressional appropriation. Therefore, the Flast precedent did not apply because it refers to specific congressional appropriations directed to religious institutions.

Verbatim: “The link between congressional action and constitutional violation that supported taxpayer standing in Flast is missing here. Respondents neither challenge any specific congressional action or appropriation nor ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional. That is because the expenditures at issue were not made pursuant to any Act of Congress, but under general appropriations to the Executive Branch to fund day-to-day activities. These appropriations did not expressly authorize, direct, or even mention the expenditures in question, which resulted from executive discretion, not congressional action. The Court has never found taxpayer standing under such circumstances.”

Lineup: Justice Samuel Alito wrote the opinion for the majority and was joined by Chief Justice John Roberts and Justice Anthony Kennedy. Justice Antonin Scalia, joined by Justice Clarence Thomas, filed a concurring opinion stating that Flast should be overruled altogether. Justice David Souter wrote a dissent, in which he was joined by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer. In his dissent, Souter wrote that the executive branch, not the legislative, was the one that caused harm to the foundation. Therefore, he wrote, the taxpayers should have been granted standing.

First Amendment impact: The impact of the ruling may not be clear. The majority differentiated circumstances in this case from those in Flast, keeping the precedent intact. However, dissenters said that establishment clause protection “would melt away” if the executive branch could not be challenged when it took action that Congress could not through legislation.