Supreme Court Hears Arguments in Case Involving Federal Grants to Religious Charities

By Suzanne Perry

The Bush Administration, in a case that could set new ground rules for lawsuits involving the constitutional separation of church and state, asked the Supreme Court todayto quash a lawsuit challenging its program to steer more federal money to religious groups for social services.

In oral arguments, the government squared off against the Freedom From Religion Foundation, which lodged a complaint against President Bush's efforts to promote government grants to so-called "faith-based" organizations — the first such case to reach the high court.

The arguments did not deal with the merits of that complaint, but turned on the technical matter of whether taxpayers — as opposed to a party directly injured by a government action — should be allowed to bring such lawsuits. Religious, civil-liberties, atheist, and other groups are watching the case closely because of the precedent it will set.

"The ruling could decide whether a variety of government actions that are alleged to have the effect of promoting religion can be challenged," Melissa Rogers, visiting professor of religion and public policy at Wake Forest University Divinity School, told reporters before the court met.

Previous Decisions

The case involves President Bush's decision to create a White House Office of Faith-Based and Community Initiatives by executive order in 2001. The Freedom From Religion Foundation, in Madison, Wis., filed a lawsuit in 2004 charging that the office, along with satellite offices within federal agencies, violated the First Amendment provision that bars Congress from making laws "regarding an establishment of religion." It said the government was sponsoring conferences and supervising federal spending that sent the message that "religion is favored, preferred, and promoted over other beliefs and non-belief."

A federal district court ruled that the group — which filed the case on behalf of its members, who are nonbelievers, and three of its leaders as "federal taxpayers" — did not have the legal "standing" to sue. But that decision was reversed by the 7th U.S. Circuit Court of Appeals, in Chicago, leading the government to ask the Supreme Court to hear the case.

Link to 1968 Case

The Supreme Court has generally held that taxpayers cannot challenge the constitutionality of federal spending because their connection to the alleged damage is too remote. However, it made an exception in a 1968 case, Flast v. Cohen, ruling that taxpayers have the right to lodge a church-state challenge if it invokes constitutional limits on Congress's ability to tax and spend.

Solicitor General Paul D. Clement told the Supreme Court justices that Flast carved out a narrow exception that did not give taxpayers the right to sue over executive-branch activities paid for by money from the White House's general operating budget, rather than by Congressional appropriations.

But Andrew J. Pincus, representing the Freedom From Religion Foundation, said the government was trying to "draw an arbitrary line" by saying that Flast did not apply to the federal faith-based grants.

A number of interest groups filed briefs on both sides of the argument. Several Christian groups supported the government, including the American Center for Law and Justice, We Care America, and the Christian Legal Society. They were joined by 12 states that fear they could face lawsuits for holding conferences to promote their own faith-based grant programs or for spending on ceremonial functions such as religious-holiday ceremonies.

The Freedom From Religion Foundation won support from groups including the American Civil Liberties Union, Americans United for Separation of Church and State, and the Anti-Defamation League.

Information about the case, Hein v. Freedom From Religion Foundation, is available on the Web site of the Roundtable on Religion and Social Welfare Policy http://www.religionandsocialpolicy.org/resources/HeinvFFRF.cfm.