Hein v. Freedom From Religion Foundation was a United States Supreme Court case which ruled on June 25, 2007 by a 5-4 decision that taxpayers do not have the right to challenge the constitutionality of expenditures by the executive branch of the government.
| Hein v. Freedom From Religion Foundation | |
|---|---|
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| Argued February 28, 2007 Decided June 25, 2007 | |
| Full case name | Hein, Jay, et al. (Dir., White House Office of Faith-Based and Community Initiatives) v. Freedom from Religion Foundation, Inc., et al. |
| Docket no. | 06-157 |
| Court membership | |
| |
| Case opinions | |
| Majority | Alito, joined by Roberts, Kennedy |
| Concurrence | Kennedy |
| Concurrence | Scalia, joined by Thomas |
| Dissent | Souter, joined by Stevens, Ginsburg, Breyer |
| Laws applied | |
| Article I, Section 8, Clause 1 of the United States Constitution; First Amendment to the United States Constitution | |
At question was whether taxpayers have the right to challenge the existence of the White House Office of Faith-Based and Community Initiatives.[1] The case centered on three Supreme Court precedents: Flast v. Cohen, 392 U.S. 83 (1968), Bowen v. Kendrick, 487 U.S. 589 (1988), and Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464 (1982). Oral arguments were heard February 28, 2007.
Background
In January 2001, President George W. Bush created the White House Office of Faith-Based and Community Initiatives within the Executive Office of the President by an Executive Order. Later Executive Orders created centers for the Office within the Departments of Justice, Labor, Health and Human Services, Housing and Urban Development, Education, and Agriculture, as well as at the Agency for International Development.[1]
The Freedom From Religion Foundation and three of its members (Anne Nicol Gaylor, Annie Laurie Gaylor, & Dan Barker) filed an action against the Director of the White House Office and the Directors of Centers of the Office created within the above mentioned Federal Departments.[1] The Foundation and its members asserted standing based solely on their status as federal taxpayers.[1] It was noted that "Because the Foundation itself is a non-profit entity that is exempt from paying federal income taxes under 26 USC 501(c)(3), the Foundation lacks taxpayer status in its own right, and can assert it, if at all, only on behalf of its taxpaying members. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40 (1976)."[1]
The Foundation and its members complaint was over "the use of money appropriated by Congress under Article I, section 8, to fund conferences that various executive branch agencies hold to promote President Bush’s 'Faith-Based and Community Initiatives.'"[1] The Foundation held that "the defendant officials violated the Establishment Clause by organizing national and regional conferences at which faith-based organizations allegedly 'are singled out as being particularly worthy of federal funding because of their religious orientation, and the belief in God is extolled as distinguishing the claimed effectiveness of faith-based social services.'"[1] They also alleged that "the defendant officials 'engage in myriad activities, such as making public appearances and giving speeches, throughout the United States, intended to promote and advocate for funding for faith-based organizations.'"[1] They further asserted that "Congressional appropriations [are] used to support the activities of the defendants."[1]
The Foundation and its members sought a "declaratory judgment that the officials' activities violate the Establishment Clause, an injunction prohibiting further 'use [of] appropriations in violation of the Establishment Clause,' and 'an order requiring the defendants to establish rules, regulations, prohibitions, standards and oversight to ensure that future appropriations' comport with the Establishment Clause."[1]
The Directors of the White House Office and its centers, moved that the complaint against them be dismissed for lack of standing.[1]
Lower courts
District court
The motion to dismiss the complaint for lack of standing was granted by the United States District Court for the Western District of Wisconsin. The court held Establishment Clause challenge standing was limited to "exercises of congressional power under the taxing and spending clause of Article 1, subsection 8."[1] They held that the action of the directors "are not 'exercises of congressional power' as required by the Flast test."[1]
The court noted that in Bowen v. Kendrick, 487 U.S. 589 (1988) it was "clarified that the disbursement of federal funds by an Executive agency in the administration of a congressional program could be challenged consistent with Flast",[1] but they pointed out that "The President established the White House OFBCI by Executive Order and funded it with general budget appropriations."[1] They found that this meant that the Director of the office and other officials working within the program "have no congressional mandate. Rather, he acts at the President’s request and on the President’s behalf", so none of them was "charged with the administration of congressional programs."[1] They stated that "The view that federal taxpayers as such should be permitted to bring Establishment Clause challenges to all Executive Branch actions on the grounds that those actions are funded by congressional appropriations, has never been accepted by a majority of the Supreme Court."[1]
Summary judgement motions
The Foundation and its members had requested a summary judgement against Emory University and MentorKids USA.
Emory University had received funds from the Department of Health and Human Services' Compassion Capital Fund Grant for its "Strong Partners Initiative". Emory divided and distributed some of this funding to other groups that met its criteria. The Foundation claimed that Emory's use of the government funds had violated the Establishment Clause by giving "preferential treatment to religious organizations in their selection of organizations for subawards under the grant."[1] The court granted the petition to make summary judgement holding that the Foundation did have standing under Flast because the grant issued to Emory stemmed from a program Congress established in the Promoting Safe and Stable Families Amendments of 2001, Pub. L. No. 107-133.[1] Upon review of the claims brought forward by the Foundation the court did not find that Emory's selection process favored religious organizations, and ruled that the Foundation "failed to demonstrate the existence of a genuine issue of material fact as to Emory University’s CCF grant."[1] The court agreed with the government that as the Foundation had failed to substantiate claims against Emory there was no real dispute and so summary judgement could be, and was, made "in favor of defendants against plaintiffs affirming the Department of Health and Human Service's Compassion Capital Fund Grant to Emory University."[1]
The Foundation also asked for a summary judgement on whether the group MentorKids USA a recipient of a subaward from Emory had violated the Establishment Clause. Again the court cited Flast and the same Congressional act as it had above to grant the Foundation standing in this instance as well.[1] MentorKids' stated mission was to "exalt the Lord Jesus Christ as the Son of God," they hired only Christians as mentors, and required them to give monthly reports on the progression of their mentee's "relationship with God."[1] Upon learning of this the Department of Health and Human Service had suspended MentorKids' grant. The court acknowledged that the grant had been suspended but ruled that "Defendants must bear the heavy burden to prove that there is no reasonable expectation that the wrong will be repeated. ...Defendants have failed to meet this burden, having failed to provide sufficient assurances that the grant will not be reinstated."[1] Because of this the court made summary judgement for the Foundation ruling that the "grant to MentorKids USA is vacated and further funding is denied as it relates to its present structure."[1]
Appeals court
The district courts decision was appealed and heard by an the Seventh Circuit Court of Appeals on Sept. 13, 2005. The Appeals court made a decision on January 13, 2006 that vacated the order of dismissal and remanded the decision. The court’s majority held that "'Taxpayers have standing to challenge an executive-branch program, alleged to promote religion, that is financed by a congressional appropriation, even if the program was created entirely within the executive branch, as by Presidential executive order,' as long as the actions of the Executive Branch officals are financed by general appropriations."[1] The majority held that taxpayer standing "extends beyond programs that allocate federal funding to third parties, and includes challenges to any Executive Branch activity funded "from appropriations for the general administrative expenses, over which the President and other executive branch officials have a degree of discretionary power…[as oppossed to funding] from, say, voluntary donations by private citizens."[1] They held that standing exists even without a statutory program enacted by Congress and even if the taxpayer is "unable to identify the appropriations that fund the [challenged activity]".[1]
The court rejected the government's position that programs created solely from the Executive branch funded through general appropriations were beyond challenge by individual taxpayers. They put forward a hypothetical saying that if "the Secretary of Homeland Security, who has unearmarked funds in his budget, decided to build a mosque and pay an Imam a salary to preach in it because the Secretary believed that federal financial assistance to Islam would reduce the likelihood of Islamist terrorism in the United States" this would surely not be allowed to stand.[1] They said that in "the hypothetical case of the mosque, and in the real though much less dramatic case before us, the objection is to a program for which money undoubtedly is "appropriated," albeit by executive officials from discretionary funds handed them by Congress, rather than by Congress directly."[1]
The court noted that the plantiffs were challenging not "the grants but the conferences" which are "concerned in part with instructing the attendants on how to apply for government grants for their religious organizations".[1] They held that the government's position that only the grants could be challenged, not the conferences "would be artificial because there is so much that executive officials could do to promote religion in ways forbidden by the establishment clause (which despite its wording applies to executive as well as congressional action, American Civil Liberties Union of Illinois v. City of St. Charles, supra, 794 F.2d at 270) without making outright grants to religious organizations. For the government to operate a mosque or other place of worship would not involve a grant unless a contractor was involved."[1]
The court dismissed the government's position that there could be no standing because the plaintiffs had not shown that their taxes were increased because general Congressional appropriations to the Executive branch were used to support the activities of the directors. They held that producing a proof that would show how many funds the plaintiffs would save if the situation was different was unnecessary in cases like this one as "the tangible harm would often be zero because if the complained-of expenditure was enjoined, the money would probably be used to defray some other public expense that would not benefit the taxpayer, rather than returned to him in the form of a lower tax rate."[1]
Dissent
Appeals court Judge Kenneth Francis Ripple wrote a dissent that said allowing such taxpayer challenges to the conduct of Executive Branch officials "so long as that conduct was financed in some manner by a congressional appropriation" reflects a "dramatic expansion of current standing doctrine."[1] He held that the Judiciary had allowed taxpayer standing in Establishment Clause cases to prevent Congress from "supporting a sectarian cause through the transfer of public funds," as this was "one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption."[1] Judge Ripple pointed to the general rule that a plaintiff had to “establish a nexus between his status as a taxpayer and the precise nature of the constitutional infringement alleged.”[1] He held that the Foundation and its members had failed to “set forth with sufficient rigor a nexus between their status as taxpayers and an exercise of the congressional power under the Taxing and Spending Clause.”[1] He wrote that they should not be given standing as “A lawsuit based on such undifferentiated injury—a mere disagreement with the government policy—is hardly the case and controversy within the jurisdiction of the federal courts.”[1]
In support of his position Ripple pointed to Schlesinger v. Reservists Committee to Stop the War, 418 U.S. at 228, 94 S. Ct. 2925 which denied standing to taxpayer plaintiffs because they “did not challenge an enactment under Art. I, § 8, but rather the action of the Executive Branch”.[1] He also pointed to the decision of the D.C. Circuit Court decision in District of Columbia Common Cause v. District of Columbia, 858 F.2d 1, 3-4 (D.C. Cir. 1988) which held that the "[Supreme] Court has never recognized federal taxpayer standing outside [of Flast’s] narrow facts, and it has refused to extend Flast to exercises of executive power."[1]
Rehearing denied
The government filed a petition for rehearing by the Appeals court but it was denied on May 3, 2006 by a vote of 7-4.[1] Two of the judges voting against the rehearing gave their reasoning writing that "the obvious tension which has evolved in this area of jurisprudence...can only be resolved by the Supreme Court...[and] the needed consideration of this important issue by that tribunal would be unnecessarily delayed by our further deliberation."[1] The dissenting judges who voted for the case to be reheard at the Appeals level wrote that "the panel’s decision 'has serious implications for judicial governance,' and 'departs significantly from established Supreme Court precedent and creates an inter-circuit conflict...the Supreme Court, in making an exception to usual standing rules for taxpayers has drawn a very clean line in order to avoid making the federal courts a forum for all sorts of complaints about the conduct of governmental affairs on no basis other than citizen standing.'"[1]
Supreme Court
Petition for certiorari
The government petitioned the Supreme Court to hear the case saying that the appeals court decision "transforms taxpayer standing in the Establishment Clause context from a narrow exception, designed to prevent the specific historic evil of direct legislative subsidization of religious entities, into a roving license for any 'individual citizen to challenge any action of the executive with which he disagrees, as violative of the establishment Clause.'"[1] The petition said the ruling "cuts taxpayer standing from its constitutional and historical moorings" and contravened judicial precedents "and the decisions of other circuits."[1] Certiorari was granted on December 1, 2006.
Government's position
The Directors' position was argued for by a team headed by United States Solicitor General Paul Clement. They cited Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) saying that the Judiciary was Constitutionally limited to hear "actual 'Cases' and 'Controversies.'" For this to be so, the plaintiff must "have suffered an 'injury in fact' in the form of the 'invasion of a legally protected interest,' that is both 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.'"[1] They cited DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 1862 (2006), saying that "Standing has been rejected in such cases because the alleged injury is not 'concrete and particularized,' but instead a grievance the taxpayer 'suffers in some indefinite way in common with people generally,' and because the injury is not 'actual or imminent,' but instead 'conjectural or hypothetical.'"[1] On a similar note they cited Frothingham v. Mellon, 262 U.S. 447, 487 (1923) that "a federal taxpayer’s interest in the moneys of the treasury 'is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation,of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.'"[1] They also cited Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 474 (1982), saying "'Proper regard for the complex nature of our constitutional structure requires' that courts not 'hospitably accept for adjudication claims of constitutional violation by other branches of government where the claimant has not suffered cognizable injury.'"[1] They pointed out that in the Valley Forge case the plaintiffs had not been granted standing because they were challenging "not a congressional action, but a decision by [a federal agency] to transfer a parcel of federal property." The Court had ruled that "the expenditure of public funds in an allegedly unconstitutional manner is not an injury sufficient to confer standing... [and taxpayer standing is confined to] "challenges directed only [at] exercises of congressional power."[1] "A constitutional objection to "a particular Executive Branch action arguably authorized by [an] Act [of Congress]" will not suffice."[1]
In rebuttal to the Foundation's protest that the directors "engage in myriad activities, such as making public appearances and giving speeches, throughout the United States, intended to promote and advocate for funding for faith-based organizations" the government said "that pay for the federal officials' salaries and offices, which would be appropriated whether or not the officials engaged in the conduct respondents challenge."[1] They likened the situation to those behind the ruling of Doremus v. Board of Education, 342 U.S. 429 (1952) where standing was not granted as school teachers would receive the same salary whether they read from the Old Testament or did not.[1] The government also maintained that a secular applicant for a grant who believed that their organization was passed up because they were not religious "even apart from Flast...would have standing to sue."[1] They also held that while it was true that there might be "no available plaintiff to challenge the preliminary deliberative process that led to the grant, that is only because deliberations, apart from the disbursement of funds, inflict, at most, an inchoate injury."[1]