The Supreme Court ruled today that atheists don’t have standing to challenge their exclusion from President Bush’s faith-based initiatives programs:
The Supreme Court today handed President Bush’s faith-based initiatives program a victory, ruling that federal taxpayers cannot challenge the constitutionality of the White House’s efforts to help religious groups obtain government funding for their social programs.
In a 5-4 decision, the court blocked a lawsuit by a Wisconsin-based group of atheists and agnostics against officials of the Bush administration, including the head of the White House Office of Faith-Based and Community Initiatives.
The court ruled that the suit, by the Freedom from Religion Foundation and three of its taxpaying members, could not go forward because ordinary taxpayers do not have standing to challenge the expenditures at issue. The ruling reversed a 2-1 decision in favor of the foundation by a three-judge panel of the U.S. Court of Appeals for the 7th Circuit in January 2006.
Liberal groups blasted the court’s decision in Hein v. Freedom From Religion Foundation as a setback for the First Amendment and a paean to the religious right, while religious conservatives hailed it as a major triumph for the faith-based initiative.
The foundation had complained that parts of the faith-based initiatives program favored religious groups over secular ones, violating the Establishment Clause of the Constitution’s First Amendment, which says in part that “Congress shall make no law respecting an establishment of religion.”
In its suit, filed in 2004, the foundation claimed that the faith-based initiatives office, formed by Bush in January 2001 through an executive order, unfairly used taxpayer money to provide an edge to religious groups seeking federal funding, and effectively endorsed “religious belief over non-belief.”
Under current Establishment Clause precedents, it would seem fairly clear that an expenditure program that explicitly favored religious groups over non-religious groups would be unconstitutional. But the Supreme Court didn’t even reach that issue, they agreed with the Bush Administration’s argument that individual taxpayers do not have standing to challenge an expenditure of money, even if it is unconstitutional:
In an opinion joined by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy, Justice Samuel A. Alito Jr. wrote that “the payment of taxes is generally not enough to establish standing to challenge an action taken by the federal government.”
Given the size of the federal budget, “it is a complete fiction to argue that an unconstitutional federal expenditure causes an individual federal taxpayer any measurable economic harm,” Alito said. “And if every federal taxpayer could sue to challenge any government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus.”
He noted that “Congress did not specifically authorize the use of federal funds to pay for the conferences or speeches that the plaintiffs challenged.” Rather, those activities were funded from “general Executive Branch appropriations,” he wrote.
Not only does that seem to contradict a 1968 Supreme Court decision which the Court did not overturn today, it raises the question of who, if anyone has the right to challenge an unconstitutional expenditure in Court if it isn’t a taxpayer.
Justice Souter puts it best:
In a dissenting opinion, Justice David H. Souter wrote that today’s ruling “closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury.” He added, “I see no basis for this distinction in either logic or precedent. . . .”
In this case, “there is no dispute that taxpayer money in identifiable amounts is funding conferences, and these are alleged to have the purpose 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.”
And so does the Constitution.
