Steven K. Green is a professor of law at Willamette University College of Law in Salem, Oregon. He is former general counsel and director of policy for Americans United for the Separation of Church and State.

 

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April 18, 2007

A defining characteristic of the current administration is its disregard for the constitutional principles of divided governmental authority and a system of checks and balances. The president seems unwilling to acknowledge the fundamental principle that executive actions and policies should be subject to congressional approval and judicial review.[1] An example of the president’s efforts to implement policy without the authorization of Congress and beyond the scope of judicial review has been the faith-based initiative.

The faith-based initiative has its origins in a series of laws enacted in the late 1990s that opened the door to greater participation by religious charities in federally funded social service grants and programs (also known as “charitable choice”). These laws prohibit federal and state government agencies from excluding faith-based organizations (FBOs) from competing for government grants to provide services to the poor sick and infirm.[2] The provisions were largely unnecessary because religiously based charities such as Catholic Charities and the Salvation Army had long received government grants to fund their social service programs. What charitable choice did, however, was to open the door to the public funding of faith-infused programs, such as drug treatment and job training programs that use scripture and salvation to transform the lives of beneficiaries. Under existing case law, funding religiously infused programs violates the establishment clause of the First Amendment.[3]

Faith-Based Executive Power

George W. Bush ran for president in 2000 on a platform of expanding charitable choice. In his first executive order, President Bush established the White House Office of Faith-Based and Community Initiatives (FBCI). The creation of similar faith-based offices in various federal departments and agencies quickly followed. The purpose of these offices was to promote the faith-based initiative to the religious community.[4] The FBCI quickly prepared a report, “Unlevel Playing Field,” that claimed to document systematic government discrimination against the more evangelical FBOs.[5] The White House then urged Congress to pass new legislation to expand charitable choice into every federal social service program. After Congress refused, Bush issued another executive order directing federal agencies to add charitable choice provisions to existing programs.[6]

One function of the various faith-based offices has been to conduct regional conferences throughout the country to promote the faith-based initiative and encourage FBOs and community-based groups to apply for government grants. As reported by the nonpartisan Roundtable on Religion and Social Welfare Policy, many of these government-sponsored conferences have been little more than hybrid political rallies/religious revivals, complete with prayers, inspirational songs, and testimonials.[7] (I attended three regional conferences during the early 2000s and can attest to their religious character.) At these conferences, FBCI officials provide information about the availability of government grants and the extent to which FBOs could integrate spiritual activities into their publicly funded services.

The faith-based initiative’s religious charter has resulted in several lawsuits challenging the constitutionality of the faith-based initiative pursuant to the establishment clause of the First Amendment of the Constitution. The establishment clause provides that “Congress shall make no law respecting an establishment of religion.” The American Civil Liberties Union, the Americans United for Separation of Church and State, and the American Jewish Congress have all been successful in challenging several government grants that have funded religious activity.[8] Another group, the Freedom from Religion Foundation (FFRF), is attempting to go one step further: In addition to challenging specific monetary grants to faith based organizations, FFRF has challenged the constitutionality of the government sponsorship of seminars and conferences to encourage religious groups to seek federal grants through the faith-based initiative. These conferences are funded through a general discretionary executive appropriation rather than a specific congressional appropriation. This is the case of Hein v. Freedom from Religion Foundation, currently before the Supreme Court.

In Hein, FFRF claims that it has the right to sue, as a taxpayer, for an establishment clause violation relating to the expenditure of funds to support the conferences. The federal government acknowledges that FFRF has standing to challenge specific grants to faith-based organizations but has no legal right to challenge the sponsorship of conferences or statements by administration officials touting the “power of faith to change lives.” The government argues that since the spending decisions regarding conferences and seminars are made by the executive branch and do not involve earmarked congressional appropriations, the FFRF does not have a legal right to bring suit. Thus, the issue in Hein is whether taxpayer status alone is enough to allow a challenge under the establishment clause of the Constitution.

On the Flast Track

The Supreme Court has for eighty-five years maintained a rule that prohibits taxpayers from challenging federal spending and taxing policies, based solely on their status as taxpayers. As the Court held in Frothingham v. Mellon (1921), a taxpayer’s interest in the monies of the federal treasury are too “indeterminable, . . . remote, fluctuating, and uncertain” to support the personal and cognizable injury necessary to confer standing to sue in federal court.[9] However, an exception to this rule was created by the Supreme Court in the case of Flast v. Cohen (1968). When government funds are being used to aid in the establishment of a religion, taxpayers may challenge the expenditure as a violation of the establishment clause. In Flast the high court held that the “specific evils feared” by the drafters of the First Amendment “was that the taxing and spending power would be used to favor one religion over another or to support religion in general.” Therefore, a taxpayer could bring a challenge to an alleged unconstitutional expenditure, even though her injury took on a generalized quality.[10]

The Flast rule was later narrowed in Valley Forge Christian College v. Americans United for Separation of Church and State (1982), which held that taxpayer standing under the establishment clause was limited to expenditures arising under the Article I, § 8, tax and spend clause but did not extend to expenditures authorized under other sections of the Constitution. But language in Valley Forge by Justice William Rehnquist suggested that Flast taxpayer standing was allowed only for challenges to “exercises of congressional power” and not to “the action of the executive branch.”[11]

Thus, Hein raises a fundamental constitutional question: Are the president’s actions and policies immune from suit and review by the judicial branch when they involve conduct and expenditures that are discretionary and not mandated by legislative action? This is a particularly pertinent question when the nation has a president who openly touts his faith experience and actively encourages religious solutions to today’s social problems. Likely millions of public dollars have been spent to promote the president’s belief in the transforming power of faith. Should this expenditure be subject to judicial review?

Restricting All Branches of Government

In earlier cases, the Supreme Court has written that the essence of a religious establishment, prohibited by the establishment clause, is found in the “sponsorship, financial support, and the active involvement of the sovereign in religious activity.”[12] As a result, the Flast Court recognized the necessity of allowing the taxpayer to have standing, acknowledging that the injury of an unconstitutional sponsorship of religion was shared in common by all citizens. According to the Court:

One of the specific evils feared by those who drafted the establishment clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general. . . . The concern of [James] Madison and his supporters was quite clearly that religious liberty ultimately would be the victim if government could employ its taxing and spending powers to aid one religion over another or to aid religion in general.[13]

Rather than being “unnecessary” or “unconstitutional,” taxpayer standing ensures government accountability when the political process is unlikely to provide a remedy. As such, it should be irrelevant as to which branch of government commits the constitutional injury. Judge Richard Posner of the Seventh Circuit recognized as much in his lower court opinion, noting that the line proposed by the government is “artificial” because “there is so much that executive officials could do to promote religion in ways forbidden by the establishment clause . . . without making outright grants to religious organizations.” The fact that the conferences in question were funded out of “general rather than earmarked appropriations—that it was an executive rather than a congressional program—does not deprive taxpayers of standing to challenge it,” Posner wrote.[14]

The government has reverted to “proof-texting,” pointing out that the First Amendment says “Congress shall make no law respecting an establishment of religion” and that the Court in Valley Forge restricted standing to challenges arising under the Article I, § 8, spending power. But the Court has long recognized that the Bill of Rights restricts actions of the government generally, executive and legislative branches alike. Moreover, the framers of the religion clauses were reacting to systems of religious establishments that had been created and perpetuated by the king as well as Parliament. Because the new federal government was one of enumerated powers—with the power of the purse vested entirely in Congress—and the president executed the law rather than created it, there was little reason for the first Congress to write the language of the First Amendment to prohibit actions of the president as well.[15] But the framers fully understood the threat of executive establishments and would not have been indifferent to the risk that such establishments might occur in this country.

In addition, the evils of religious establishments had not historically been limited to financial extractions and expenditures on behalf of religion. Establishment of state religion had also been enforced by awarding civil rights and privileges based on proper religious affiliation. Derived from the Test and Corporation Acts, colonial establishments in America commonly limited rights of public office holding to Protestants and imposed religious requirements that affected nonconformists’ access to legal and political institutions.[16]

The framers did away with this arrangement in the Constitution under the “test clause,” which provided that “no religious test shall ever be required as a qualification to any office of public trust under the United States.”[17] The extensive ratification debate over the test clause indicates that the founding generation perceived the attributes of religious establishments to extend beyond the mere financial support of religion to matters that affected one’s standing and participation in the larger political community.[18] The president, in conjunction with the other branches of government, was made subject to the test clause. The test clause thus prevents one form of establishment by the executive.[19] Just as the framers would have presumed that the president is equally barred from establishing a religion, they would have insisted that he not be immune from accountability for his actions.

Is the First Amendment Federal Only?

The response by Greg Jones is that not all constitutional controversies are necessarily subject to judicial review (e.g., see taxpayer standing generally) and that some injuries are better redressed by the political process. Bolstering this response is the claim that the establishment clause is primarily about federalism—the division of powers between the national and state governments—and not about individual rights. If federalism is the principal value underlying the establishment clause, Jones argues, then such controversies are best resolved by the political branches.

The problem with this argument is that it grossly overstates the federalism aspect to the establishment clause. That the members of the first Congress viewed the Bill of Rights as restricting federal power vis-à-vis the states is not profound; to claim that the framers intended the establishment clause to protect the ability of states to maintain religious establishments is a perversion of history. By the time of the drafting of the First Amendment, religious establishments existed in only four states, and they were all on life support. Religious establishments were highly unpopular—propped up by the intransigent standing order—and generally viewed as inconsistent with freedom of conscience. Even supporters in New England denied that they maintained religious establishments due to their negative connotations. As a result, the drafters of the First Amendment had little reason to contest the moribund New England establishments, which they (correctly) knew would be abolished. But at the same time, the framers did not view the purposes of the establishment clause primarily in jurisdictional terms. On the contrary, the literature of the era clearly indicates that contemporaries viewed establishments in terms of rights-infringing, not as a jurisdictional issue. The reported debates of the drafting in the First Amendment indicate that the majority of members, absent the comments of one member, viewed the proposed amendment as having a substantive quality. Subsequent letters of Thomas Jefferson and James Madison, the two framers most responsible for the principles enshrined in the religion clauses, reveal that they viewed the establishment clause as substantive, not jurisdictional. Significantly, both men considered themselves bound by the establishment clause when they served as president.[20]

For more than sixty years, the modern Supreme Court has viewed both interests contained in the religion clauses as concerning individual rights. That is why the resolution of such controversies is not left to the political process. Justice Robert Jackson said it best:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts.[21]

If the government’s distinction between congressional and executive actions is accepted by the Court, then executive expenditures that advance religion, or even favor one religion over others, would be potentially immune from challenge if they involved a discretionary funding source rather than a clear “statutory mandate.” As Judge Posner hypothesized in his opinion, there would be nothing to stop the secretary of homeland security from using unearmarked funds from his budget to build and fund an Islamic mosque that would support U.S. foreign policy on the assumption it would reduce Islamist terrorism in the country. As Justice Brennan noted in his Valley Forge dissent, it is likely that the framers were more concerned about government expenditures on behalf of religion and less concerned about the funding mechanism. That principle and history should hold true in this situation. Unfortunately, the Hein case invites the Court to engage in more artificial line-drawing.

Greg Jones responds to Steven K. Green.