Concering Hein v. Freedom From Religion Foundation

As you have probably heard, President Bush, through a series of executive orders, has set up the Office of Faith-Based and Community Initiatives, making it much easier for religious organizations to apply for federal funding. Many proponents of a "high wall of separation" between religion and government, such as myself (and Thomas Jefferson, if he were still alive), were concerned regarding the constitutionality of the existence of such a program. Can federal dollars be spent to support religious organizations? I don't think so. But what can I do about it? Can I sue the executive branch? That very narrow question is what the Court ruled on yesterday in Hein v. Freedom From Religion Foundation.

And apparently the answer is no, I cannot.

A bit of legalese: this case is all about "standing," or whether or not someone bringing a lawsuit actually has the right to be bringing that lawsuit. Usually this requires the person bringing the suit to show some sort of specific injury. So, one of the basic questions in this case is "Are taxpayers sufficiently injured when the executive branch spends money for religious purposes to bring a claim in court?" So, just to clarify (and perhaps make this post much more boring), this case did not rule on the constitutionality of these so-called "faith-based initiatives."

On with the analysis.

First, I should explain the voting. It was 5-4, with the conservative gang in the majority and the liberals in the minority. However, the controlling opinion (written by Samuel Alito) was only joined by the Chief Justice and Anthony Kennedy; Antonin Scalia and Clarence Thomas agreed with the judgment, but wrote a concurring opinion, thus making Alito's opinion a "plurality opinion" rather than a "majority opinion." This has the effect of weakening the opinion as precedent.

So, the plurality opinion first ruled that a taxpayer is not injured by executive spending from funds generally appropriated by Congress for executive expenditures.

Generally, a taxpayer's interest in seeing that Treasury funds are spent in accordance with the Constitution is too attentuated to give rise to the kind of redressable "personal injury" required for Article III standing.

This does make sense for practical purposes; allowing any and all complaints regarding federal spending would flood the federal courts with cases in which people simply do not like the way Congress or the executive is spending money. However, we have to delve a bit deeper.

The Court has ruled that there is at least one relevant exception to such a rule. In Flast v. Cohen, the Court declared that a taxpayer would have standing to challenge the constitutionality of "exercises of congressional power under the taxing and spending clause." In other words, if Congress had passed a law creating a tax to fund or explicitly providing funds for religious purposes, a taxpayer would have standing. Apparently Congress' role in all of this is the important part.

The link between congressional action and constitutional violation
that supported taxpayer standing in Flast is missing here.

So, I can sue if Congress says "Mr. President, spend this money on religious purposes," but apparently I cannot sue if Congress says "Mr. President, spend this money as you wish," and he subsequently spends that money on religious purposes.

This is simply absurd. If Congress violates the Constitution, we can call them on it, but if the President violates the Constitution, we can't? Please, someone show me some sanity! Oh, hey, it's Justice Souter:

I see no basis for this distinction in either logic or precedent, and respectfully dissent. We held in Flast, and repeated just last Term, that the "‘injury’ alleged in Establishment Clause challenges to federal spending” is “the very ‘extract[ion] and spen[ding]’ of ‘tax money’ in aid of religion."

Thank you, Justice Souter. The point here is that Flast should be read to allow all cases challenging the explicit "extraction and spending of tax money in aid of religion." The narrow reading of Justice Alito creates a rather nonsensical distinction between congressional appropriation and executive spending.

Back to the injury matter for a moment: Souter makes clear that the expenditure of taxpayer money to fund religious causes does create injuries. Quoting James Madison, he points out:

The government in a free society may not “force a citizen to contribute three pence only of his property for the support of any one establishment" of religion.

Why? Because the founders considered religion to be a matter of conscience, and the right to not have one's paid taxes spent on religious purposes (which would really amount to forcing one to pay for religious purposes) is fully encompassed by the right to conscience. Thus, any expenditure of taxpayer money on religious purposes is a violation of the right to conscience, a rather large "injury," if you ask me.

So, we secularists have no recourse to rampant executive expenditures on religious causes. Perhaps we could write to our Congresspeople, asking them to make explicit that no congressionally allocated funds (whether explicitly or generally allocated) shall be spent on religious causes, but this seems very unlikely. After all, I highly doubt that Congress would ever take on religion so directly.

Of course, we can always elect someone who understands the First Amendment in 2008. I suppose that's some sort of recourse.