|
|
Hein v. Freedom From Religion Foundation
Supreme Court Faith-based Case Briefed; Oral Arguments Feb. 28
The Freedom From Religion Foundation on Feb. 2 filed its brief in Hein v. the Freedom From Religion Foundation before the U.S. Supreme Court, which will hold oral arguments on Feb. 28. The case involves the right of federal taxpayers to challenge Bush's creation of federal faith-based offices.
Filing friend-of-the-court briefs in favor of the Freedom From Religion Foundation are the American Civil Liberties Union, with Americans United for Separation of Church and State, the Baptist Joint Committee for Religious Freedom, People for the American Way Foundation, and the Anti-Defamation League (in a joint brief); the Center for Free Inquiry, the American Jewish Congress, and American Atheists.
An amicus brief was filed for legal historians and law scholars, including: Paul Finkelman, Erwin Chemerinsky, Norman Dorsen, Ronald B. Flowers, Edwin S. Gaustad, Beth Simone Noveck, Edward A. Purcell, Jr., Frank S. Ravitch, Nadine Strossen, Laura Underkuffler, and Samuel L. Webb.
The Freedom From Religion Foundation is being represented pro bono by the Yale Law School Supreme Court Advocacy Clinic (with Giovanna Shay), with attorneys Andrew J. Pincus, Charles A. Rothfeld, and Elizabeth G. Oyer of Mayer, Brown, Rowe & Maw, D.C. The counsel of record is Richard L. Bolton, of Boardman, Suhr, Curry & Field, Madison, Wis.
Pincus, a former assistant solicitor general under the Clinton Administration, will represent the Foundation at the oral arguments.
"We are so grateful to Andy Pincus, the Yale Law School team, and all the other attorneys now working with Rich and the Foundation on our case," said Annie Laurie Gaylor, Foundation co-president.
Dan Barker, Foundation co-president, added special thanks to "our friends--the organizations who have filed these exceptional friend-of-the-court briefs on our behalf."
Gaylor, Barker and Anne Gaylor, Foundation president emerita, are the taxpayer plaintiffs in the Foundation's lawsuit challenging the creation of the offices of faith-based initiatives at the White House and Cabinets. After a district court threw out FFRF's challenge in 2004, saying taxpayers did not have the right to sue, the 7th U.S. Circuit Court of Appeals, in a ruling last year, reinstated the standing. The Bush Administration appealed the ruling to the U.S. Supreme Court.
"Our brief is strong, and so is our case," Barker noted, "and we are confident the Foundation has done its best, with the assistance of the Yale Law School team, to argue why precedent should permit us to try this case on its merits."
The Bush Administration argues that because Congress has not earmarked appropriations directly for the faith-based offices (Bush set them up by executive decree), FFRF's taxpayer plaintiffs do not have standing to sue over this discretionary use of federal tax dollars to promote religion.
The Foundation brief documents the tens of millions of dollars which have gone to the faith-based offices, often with direct Congressional oversight.
"We firmly believe there should be no 'faith-based' office in any government branch," Gaylor said, "We hope to be able to stop this outrageous and unlawful establishment of religion. These executive orders have opened the floodgates of publicly funded religious proselytizing and preference. Respect for the Establishment Clause needs to be restored, and taxpayers' right to be free from taxation to support religion needs to be protected."
Filing amicus briefs on behalf of the government was Roy Moore's Foundation for Moral Law, Pat Robertson's American Center for Law and Justice, a Christian legal society, and 11 states headed by Indiana. The ACLJ news release claimed: "For years, atheists and others who are antagoniststic to religion have had special privilege in federal court."
FFRF Brief to the U.S. Supreme Court (PDF)
Supreme Court oral argument transcript (PDF)
Amicus Briefs in Support of FFRF
- Americans United with the ACLU, Joint Baptist Convention, People for the American Way and Anti-Defamation League amicus brief (PDF)
- Center for Free Inquiry/Center for Secular Humanism amicus brief (PDF)
- American Atheists amicus brief (PDF)
- Historians and Legal Scholars amicus brief (PDF)
- American Jewish Congress & American Jewish Committee friend of the court brief (PDF)
Right to Sue over White House's "Propaganda Vehicle for Religion"
Supreme Court Accepts Hein v. Freedom From Religion Foundation
(MADISON, WIS.) The U.S. Supreme Court will hear a lawsuit filed by the Freedom From Religion Foundation challenging the government preference for religion shown by the creation of the White House Office of Faith-based Initiatives. The Supreme Court has agreed to consider the Bush Administration's claim that it can use taxpayer money to support religion without complaint by taxpayers.
The high court on Dec. 1 accepted the Bush Administration's attempt to stop the Freedom From Religion Foundation's taxpayer lawsuit, challenging the White House Office of Faith-based Initiatives. Oral arguments will be heard by the U.S. Supreme Court on Feb. 28.
The Foundation, along with its three taxpayer plaintiffs--Dan Barker, Annie Laurie Gaylor, and Anne Nicol Gaylor--filed suit in 2004, challenging the faith-based office at the White House and at several Cabinets. A federal judge dismissed the challenge, saying that Barker and the Gaylors did not have standing to sue over something the executive office did with general appropriations, if Congress had not designated those actions.
The Seventh Circuit Court of Appeals earlier this year reinstated the lawsuit, holding that tax money raised by Congress, which then goes to executive officials, cannot be used to support religion in violation of the Establishment Clause. The Bush Administration appealed the Foundation's victory to the Supreme Court.
"We believe that the Court of Appeals was correct in its decision," said Dan Barker, Foundation co-president. "We welcome the Supreme Court's review to eliminate any doubt. If in fact Congressional appropriations can be used by the Administration in disregard of the Establishment Clause, then Congress and the American public should know that.
"If we were to be denied standing, the court would be saying no citizen has the right to challenge such violations, and that executive-branch violations are not subject to court review."
Foundation co-president Annie Laurie Gaylor noted there is some confusion about the lawsuit. It does not challenge the entire "faith-based initiative," she said, because that initiative has been created in such a way that one general challenge is not possible.
Nor does the question before the Supreme Court deal with the merits of the lawsuit. At question is simply whether taxpayers have the right to challenge the White House faith-based office and its religious activities. Its main action has been hosting faith-based conferences for the benefit of religious groups seeking funding that, in some instances, have been compared to "revivals."
The standing question centers on three Supreme Court precedents, two in the Foundation's favor:
Flast v. Cohen (1968) permitted a taxpayer challenge of federal assistance to religious schools. The court ruled that challenges could be heard that question the use of "the taxing and spending power . . . to favor one religion over another or to support religion in general."
Bowen v. Kendrick (1988) also upheld taxpayers' standing to challenge grants by a federal agency to religious institutions. The court ruled that taxpayers must simply show that Congressional taxing and spending were necessary for the violation to occur.
In a third case, Valley Forge Christian College v. Americans United for Separation of Church & State (1982), the Supreme Court denied standing of taxpayers to sue over transfer of an army hospital to a religious group. This was the case cited as prevailing by the lower court judge who threw out the Foundation's federal lawsuit.
Judge Posner of the 7th Circuit, in his decision reinstating the lawsuit, wrote:
"The present case is governed by Kendrick. The taxpayers here are complaining about the use of money appropriated by Congress under Art. I, Sec. 8, to fund conferences that various executive-branch agencies hold to promote President Bush's 'Faith-Based and Community Initiatives.' This is a program that the President has created by a series of executive orders."
". . . since the program itself is challenged as unconstitutional, the fact that it was funded out of general rather than earmarked appropriations--that it was an executive rather than a Congressional program--does not deprive taxpayers of standing to challenge it," Posner concluded.
Posner wrote that it must be left to judges to decide whether the initiative and conference amount to "propaganda vehicles for religion."
The case is one of nine lawsuits the Foundation has taken challenging various parts of the faith-based initiative. So far, the Foundation has won five significant victories in federal court, with four additional ongoing lawsuits, including major challenges of the infusion of faith and religion into the Department of Veteran Affairs, and at the Federal Bureau of Prisons. The Foundation is also awaiting judgment in its federal challenge of a 24/7 bible-based residential program at a prison in New Mexico.
Other Documents
- Brief in Opposition (PDF)
- Hein Reply Brief (PDF)
- Answer Opposing Petition on Rehearing (PDF)
- Reply Brief of Appellants (PDF)
- Appellants' Brief (PDF)
- Reply Brief for the Petitioners (PDF)
- Petition for a Writ of Certiorari (Petitioners) (PDF)
- Amicus brief by Indiana and 11 other states in Hein v. FFRF (PDF)
- Brief Amicus Curiae of the Christian Legal Society in Support of Petitioners (PDF)
- ACLJ Urges Supreme Court to End Special Privileges for Church-State Separationist Taxpayer Plaintiffs