Constitutional Experts Debate Merits of Faith-Based Initiatives Case

By Monisha Bansal | July 7, 2008 | 8:32 PM EDT

( - With the first legal challenge to President Bush's White House Office of Faith-Based and Community Initiatives scheduled to be heard by the U.S. Supreme Court next Wednesday, groups on both sides of the debate are arguing whether taxpayers can sue the government over how their money is spent.

In 2001, Bush signed an executive order creating the White House Office of Faith-Based and Community Initiatives, headed by Jay Hein, allowing tax dollars to go to religious groups that provide public services as well as religious work.

"The paramount goal is compassionate results, and private and charitable groups, including religious ones, should have the fullest opportunity permitted by law to compete on a level playing field, so long as they achieve valid public purposes," Bush said at the time.

"The delivery of social services must be results-oriented and should value the bedrock principles of pluralism, nondiscrimination, evenhandedness, and neutrality," he added.

In 2004, the Freedom from Religion Foundation (FFRF) sued the federal government under the Establishment Clause of the First Amendment to the Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

"We firmly believe there should be no 'faith-based' office in any government branch," Anne Gaylor, president of FFRF, said earlier this month when the Supreme Court brief was filed. "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," she added. "The respect for the establishment clause needs to be restored, and taxpayers' right to be free from taxation to support religion needs to be protected."

As taxpayers, FFRF argue that it has the right to sue the government for unconstitutional spending, a precedent for which was set in a 1968 case, Flast v. Cohen . The government, however, argues that taxpayers as a group have not been injured by faith-based initiatives and therefore have no standing to sue.

According to the Flast decision, taxpayers "have standing consistent with Article III to invoke federal judicial power since they have alleged that tax money is being spent in violation of a specific constitutional protection against the abuse of legislative power, i.e., the Establishment Clause of the First Amendment."

Benjamin Bull, chief counsel at the Alliance Defense Fund, a group of conservative attorneys who have filed a brief in the case in favor of the government, is trying to get Flast overturned, saying that this case will decide whether or not the precedent "survives."

"There is no other place in constitutional law where a taxpayer can bring a redress of grievances," he said.

"What makes this case [Hein v. FFRF] unique is that it is against the executive branch," Bull told a press conference in Washington, D.C., on Wednesday.

Unlike the 1968 decision, the case currently before the court does not involve Congress, which is expressly mentioned in the Establishment Clause.

But Richard Katskee, assistant legal director for Americans United for the Separation of Church and State, argued that this case demonstrates why the Establishment Clause was created in the first place.

"What this case is really about is whether citizens have the right to sue to stop the government violating the first amendment," he said. "It's a good thing when the public is watching how our money is being spent."

"To be sure, the injury that occurred is not like being hit by a car and having your legs broken, but it is no less real, no less significant, and no less capable of being remedied by the courts," argued Judith Schaeffer, associate legal director for the People for the American Way Foundation.

"The injury to the taxpayer is exactly the same - being forced to pay for something that impermissibly advances religion," she said.

Schaeffer attacked those supporting the government.

"This is really a vehicle for them to fashion the America that they would like to see - an America in which there really is no separation of church and state [and] where the government does not have to be neutral toward religion," she said.

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