http://www.religionandsocialpolicy.org/newsletters/article_print.cfm?id=4231
Supreme Court Asked to Rule in Challenge Against Bush Faith-Based
Initiative
Publisher: The Roundtable on Religion and Social Welfare Policy
By: Claire Hughes, Roundtable Correspondent
Can an ordinary citizen sue the federal government because the
President of the United States acted in a way that the taxpayer
believes conflicts with the constitutional provision separating church
and state?
Last week, a succinct answer proved elusive.
The question is at the heart of a two-year-old lawsuit challenging the
constitutionality of the Bush Administration's Faith-Based and
Community Initiative, an effort that encourages government
partnerships with religious charities. Much of the program has been
implemented through the President's use of executive orders, rather
than through legislation.
In declining the federal government's request to re-hear the issue of
taxpayer standing in the case brCan a citizen sue feds because
president's actions violate separation?
ought by the Wisconsin-based Freedom From Religion Foundation (FFRF),
the Seventh Circuit Court of Appeals stated that the only people
capable of settling the issue are the nine justices on the nation's
highest court.
"(T)he obvious tension which has evolved in this area of jurisprudence
.... can only be resolved by the Supreme Court," wrote Joel M. Flaum,
the Seventh Circuit's Chief Judge, in an order issued May 3.
The government's request for a re-hearing followed the determination
by a three-judge panel of the same court that FFRF did indeed have the
right to sue the Administration on the basis of "taxpayer standing."
In upholding the right to sue, the panel ruled they were citizens
whose taxes were allegedly being used by the government to promote
religion.
That decision overturned a ruling by a lower court which held that the
group lacked such a right.
The opinions accompanying the appeals court's order reflected a
conflict among its own 11 members about the issue. And, according to
at least one legal expert, its statement about the necessity of
Supreme Court involvement is rare, but provides no indication that the
high court will actually take up the case.
"The Seventh Circuit is pleading for the Supreme Court to take the
case," said law professor Ira C. Lupu, co-director of legal research
for the Roundtable on Religion and Social Welfare Policy. "That is
extremely unusual."
While it is likely the Supreme Court would seriously consider the
appeals court's uncertainty, Lupu said it was impossible to tell
whether it would agree to rule on the case. He added that the issue of
taxpayer standing in these circumstances is not one that can be
resolved easily, and any decision could have ripple effects for
lawsuits brought against state or local government.
Officials at the White House Office of Faith-Based and Community
Initiatives declined to comment on the Seventh Circuit order.
Freedom From Religion Foundation, which has a national membership of
some 6,600 self-described atheists and agnostics, first filed its
broad lawsuit against several officials of the Bush Administration
when it challenged the Faith-Based and Community Initiative in 2004.
The group also requested that the court ban the further use of public
funds to encourage government partnerships with religious organizations.
Since 2003, FFRF has filed eight other lawsuits on more specific
aspects of the initiative, including a challenge last week against the
federal Bureau of Prisons and Office of Management and Budget (click
here to read a related story).
Generally, taxpayers do not have the right to sue the federal
government over its expenditures. The Supreme Court has made an
exception with respect to suits alleging that the federal government
has spent money in violation of the Establishment Clause of the First
Amendment, which states that "Congress shall make no law respecting an
establishment of religion."
But even in Establishment Clause cases, the courts have upheld
taxpayer standing only in lawsuits that involve specific congressional
approval to spend money that directly benefits religious groups. This
case is different because it involves presidential action, rather than
funding authorized by Congress.
Annie Laurie Gaylor, FFRF's co-director, expressed some discouragement
at the Seventh Circuit decision, saying the group had hoped for a
ruling that would allow it to move forward with its lawsuit. But she
said the taxpayer standing issue was also significant to pursue,
though esoteric and sometimes difficult to explain to members.
"The law is on our side, and it's such an important issue," Gaylor
said. "How do you get to the Faith-Based Initiative that's created by
executive order unless you can sue over the conduits of this order?"
"It seems to me that it would be terrible precedent to say that
taxpayers don't have standing," she continued. "If we don't have the
right to sue the president ... then no one does."
In order for the Supreme Court to hear the case, the federal
government, as the defendant, must first petition the high court to
review the Seventh Circuit's decision to grant taxpayer standing. If
the federal government does not make that formal request, then Gaylor
said her group would reinstate the lawsuit with several changes made
to reflect actions taken by the federal government since the original
legal complaint was first lodged against the Faith-Based Initiative.
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You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Hampton Roads [Virginia] SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members, there are members from
all over the US and a couple from overseas as well]
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.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
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USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote
"You pilot always into an unknown future;
facts are your only clue. Get the facts!"
That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.
It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.
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THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
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