WASHINGTON — Ordinary taxpayers cannot challenge a White House initiative
that helps religious charities get a share of federal money, the Supreme Court
The 5-4 decision in Hein
v. Freedom from Religion Foundation blocks a lawsuit by a group of
atheists and agnostics against eight Bush administration officials, including
the head of the White House Office of Faith-Based and Community Initiatives.
The Madison, Wis.-based taxpayers' group, the Freedom from Religion
Foundation Inc., objected to government conferences in which administration
officials encourage religious charities to apply for federal grants.
Taxpayers in the case "set out a parade of horribles that they claim could
occur" unless the court stopped the Bush administration initiative, wrote
Justice Samuel Alito.
"For example, they say, a federal agency could use its discretionary funds to build a house of worship or to hire clergy of one denomination and send them out to spread their faith. Or an agency could use its funds to make bulk purchases of Stars of David, crucifixes or depictions of the star and crescent for use in its offices or for distribution to the employees or the general public. Of course, none of these things has happened.
"In the unlikely event that any of these executive actions did take place, Congress could quickly step in," Alito wrote.
The justices' decision revolved around a 1968 Supreme Court ruling, Flast v. Cohen,
that enabled taxpayers to challenge government programs that promote
The 1968 decision involved the Elementary and Secondary Education Act, which
financed teaching and instructional materials in religious schools in low-income
"This case falls outside" the narrow exception allowing such cases to
proceed, Alito wrote.
In dissent, Justice David Souter said the Court should have allowed the
taxpayer challenge to proceed.
The majority "closes the door on these taxpayers because the executive
branch, and not the legislative branch, caused their injury," wrote Souter. "I
see no basis for this distinction in either logic or precedent."
"Here, there is no dispute that taxpayer money in identifiable amounts is funding conferences, and these are alleged to have the purposes of promoting religion," Souter wrote. "When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injury."
The Bush administration says taxpayers should not be allowed to challenge the
government's conferences because Congress did not earmark funds for a specific
program and no funds were distributed outside the government. The White House
pulled money for the conferences out of general appropriations.
With the White House Office of Faith-Based and Community Initiatives,
President Bush says he wants to level the playing field: Religious charities and
secular charities should compete for government money on an equal footing, says
White House spokeswoman Emily Lawrimore called the ruling "a substantial
victory for efforts by Americans to more effectively aid our neighbors in need
She said the faith-based and community initiative could remain focused on
"strengthening America's armies of compassion."
The ruling won't block other legal action against the White House initiative, opponents said.
"Most church-state lawsuits, including those that challenge congressional appropriations for faith-based programs, will not be affected," said the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State.
The outcome of the case before the Supreme Court was disappointing, Lynn said, because "taxpayers should be allowed to challenge public funding of religion, whether the money is allocated by Congress or the White House."
"It's a bad day for the First Amendment. The Supreme Court just put a big dent in the wall of separation between church and state," said Ralph G. Neas, president of People For the American Way Foundation, a liberal-oriented group.
The White House program appears to have had a substantial impact.
In fiscal 2005, seven federal agencies awarded $2.1 billion to religious
charities, according to a White House report. That was up 7% from the year
before and represented 10.9% of the grants from the seven federal
agencies providing money to faith-based groups.
Among the programs: Substance abuse treatment, housing for AIDS patients, community re-entry for inmates, housing for homeless veterans and emergency food assistance.