MADISON, Wis. — A Madison-based group can sue the federal government over
claims that President Bush's faith-based initiative is an unconstitutional
endorsement of religion, a federal appeals court panel has ruled.
A three-judge panel of the 7th Circuit Court of Appeals on Jan. 13 reinstated the lawsuit brought by the Freedom From Religion Foundation that
claims Bush's program violates the separation of church and state. The program
helps religious groups get government funding to provide social services.
The panel, overturning a 2004 decision by a federal judge in Madison, said
the foundation did have legal standing to sue over the administration's use of
taxpayer funds for the program.
"We will now be able to challenge the constitutionality of the creation of
the White House faith-based initiatives and the conferences and activities that
they support," Annie Laurie Gaylor, co-president of the foundation, said Jan.
14. "Bush says this is constitutional, but it's never been tried by the courts.
So we're pleased."
Bush sidestepped Congress by issuing executive orders to create the White
House Office of Faith-Based and Community Initiatives and similar centers in 10
federal agencies during his first term. He said the goal was to help religious
and community groups compete for federal funding to fight poverty, substance
abuse and other social problems.
The 5,000-member Freedom From Religion Foundation filed suit against the
administration in 2004 arguing the initiative violated the establishment clause
in the First Amendment. The lawsuit claimed the program illegally favored
faith-based groups over secular ones.
Among the activities challenged were national and regional conferences where
officials from federal agencies educate religious groups about how to obtain
government grants. The foundation said the conferences resembled religious
revival meetings and were an unconstitutional use of tax dollars.
Messages left at the White House's faith-based office and the U.S. Attorney's
office in Madison were not returned. The government could ask the full appeals
court to rehear the case or appeal the ruling to the U.S. Supreme Court.
If it stands, the ruling will allow discovery to go forward so opponents can
find out more about what happens at the conferences, George Washington
University law professor Ira C. Lupu said on Jan. 14.
He said the case was the broadest national challenge to Bush's initiative,
but that the group faced an "uphill battle" proving it is unconstitutional.
"The case has been brought back to life, but I think it's going to be rather
difficult for the Freedom From Religion Foundation to prevail," said Lupu, who
is tracking the case for the Roundtable on Religion and Social Welfare Policy.
That group studies government partnerships with faith-based organizations.
"My guess is that no government official gets up at those conferences and
says something about the gospel of Jesus Christ being the truth," Lupu
U.S. District Judge John Shabaz in Madison dismissed the lawsuit in November
2004, ruling that taxpayers had no standing to challenge funding appropriations
made by the executive branch, only those earmarked for specific purposes by
But a panel of the Chicago-based appeals court voted 2-1 to reverse Shabaz's
decision and reinstate the lawsuit. In the majority opinion written by Judge
Richard Posner, the court said taxpayers could challenge executive-branch
programs that allegedly promote religion using taxpayer funds.
Posner said judges would later have to decide the merits of the case and
whether the conferences amount to "propaganda vehicles for religion," as critics
The majority's reasoning "makes virtually any executive action subject to
taxpayer suit," Judge Kenneth Ripple wrote in his dissent.