Tomorrow, February 28, will be a date of tremendous importance for all friends of church-state separation in the United States of America. For tomorrow, Dan Barker and Annie Laurie Gaylor of the Freedom from Religion Foundation will be presenting oral arguments before the nine justices of the Supreme Court, in the case of Hein v. FFRF. The principle at stake is whether American citizens, by virtue of their status as taxpayers, have the right to bring suit against the executive branch of the federal government for violating the First Amendment.
It is a longstanding precedent, established by the 1968 Supreme Court case Flast v. Cohen, that taxpaying citizens have the right to sue when Congress unconstitutionally allocates funds to support religion. This was a correct and rational decision. As part of the legal doctrine of standing, a person cannot sue over some matter that does not affect them; they must be able to demonstrate that they have suffered specific, individualized harm due to the law or decision that they are seeking to have overturned.
But if this decision was applied in a naive way to church-state separation, it would be impossible to compel the government to cease unconstitutional action. Congress could allocate $50 million to build an evangelical Christian megachurch and pay the salary of its preachers, and since no individual taxpayer could prove that it was their money being used for the purpose, it would be impossible for anyone to bring suit to force it to stop. In such a circumstance, the First Amendment’s guarantee against an establishment of religion would be unenforceable, and therefore meaningless. If the Bill of Rights is to mean anything, there must be the power of law underlying its guarantees and making them binding; otherwise, they are just noble-sounding words.
Thankfully, Flast upheld the principle that any use of tax money to establish religion gives standing to every taxpayer. But, because of George W. Bush and his religious-pork program called the “faith-based initiative”, we now have to fight this battle all over again. Bush’s faith-based office was not created by an act of Congress but by executive decree, and has been funded using general allocations not specifically earmarked for that purpose. The Bush administration is arguing that this makes enough of a difference that the Supreme Court should rule that neither the FFRF – nor any other taxpayer – has standing to challenge its actions. In effect, they are arguing that they should be above the law.
If this claim is upheld, then the executive branch could do literally anything, up to and including building churches and paying preachers’ salaries, with tax money and no citizen would be able to compel them to stop. Not only would this grant the executive branch a shocking power to violate the Bill of Rights on its own, it would leave the door wide open for under-the-table deals where Congress grants the president money with the understanding that he will do with it what Congress could not.
The Bush administration won this argument at the district level, when the FFRF first filed its lawsuit against the faith-based initiative back in 2004. On appeal, however, the FFRF won the day, as Judge Richard Posner of the 7th Circuit Court of Appeals ruled in their favor. Last year the Supreme Court then agreed to hear the case and issue the final word, and that is what will happen tomorrow. (Hein, by the way, is Jay Hein, the current White House “faith czar”).The FFRF does not stand alone in this case. Friend-of-the-court briefs taking their side have been filed by the ACLU, Americans United for Separation of Church and State, the Baptist Joint Committee for Religious Freedom, People for the American Way, the Anti-Defamation League, the American Jewish Committee, American Atheists, the American Humanist Association, the Center for Free Inquiry, and a diverse group of eminent legal scholars and historians. The FFRF is also being represented pro bono by the Supreme Court Advocacy Clinic of the Yale Law School, and their oral arguments before the Court will be given by Andrew Pincus, former assistant solicitor general under the Clinton administration.
On the other hand, amicus briefs supporting the Bush administration have been filed by Roy Moore, Pat Robertson’s American Center for Law & Justice, the Christian Legal Society, and the attorneys general of 12 states, led by the attorney general of Indiana, who argues not just that the FFRF should lose this case but that Flast should be overturned, that citizens should have no right to sue to stop government establishments of religion, and that the courts should not be permitted to nullify acts of Congress – an argument so extreme that not even the Bush administration is making it. If one can know where they stand by seeing who their enemies are, then it would seem that the FFRF is in very good company indeed. (See here for links to the amicus briefs. The FFRF’s official blog about the case has much more information.)
Whatever the outcome of the case, however, the national media attention it has garnered has been a bonanza for the FFRF. Already the largest single organization of atheists and agnostics in the country, they have been inundated with hundreds of new signups in the past few days and now have over 8,600 members, well ahead of schedule in their goal to reach 10,000 by year’s end. Clearly, there are a huge number of freethinkers out there who are eager to become organized, and probably many more who can be persuaded to join up. All we need is to reach them and make them aware of the existence of groups like this.
Speaking from personal experience, I can say that the FFRF is a truly stellar group, one which every atheist and freethinker should join. They do excellent work in defending the rights of nonbelievers across the country and spreading the good news of atheism. In particular, they have been more active than any other civil liberties group in fighting the unconstitutional “faith-based initiative”, and have already won five major court decisions against different aspects of it. In addition, they publish a lively and informative newsletter, Freethought Today (the January/February issue of which features an original essay by yours truly). Dan and Annie Laurie are true heroes of freethought, and they deserve our support. I’m proud to be a member, and if any of my readers aren’t, there’s no better time to join and show your support than now!