FFRF at the Supreme Court

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!

About Adam Lee

Adam Lee is an atheist writer and speaker living in New York City. His new novel, Broken Ring, is available in paperback and e-book. Read his full bio, or follow him on Twitter.

  • http://corsair.blogspot.com corsair the rational pirate

    As a many years member of the FFRF I totally concur and will be praying (*snicker*) that they emerge triumphant from their court case and that my government will stop giving money to religious groups.

    If the religious groups wish to do the work that they say they want to do but can’t (drug counseling, prison faith groups or whatever) because they don’t have the money, maybe they should not be in that line of work or maybe they should rearrange their priorities. Less money on churches and sending people to Africa to convert the heathens and more on “doing good.” If they want to spend their own money “doing good” then more power to them. Just don’t spend mine.

  • http://corsair.blogspot.com corsair the rational pirate

    As a many years member of the FFRF I totally concur and will be praying (*snicker*) that they emerge triumphant from their court case and that my government will stop giving money to religious groups.

    If the religious groups wish to do the work that they say they want to do but can’t (drug counseling, prison faith groups or whatever) because they don’t have the money, maybe they should not be in that line of work or maybe they should rearrange their priorities. Less money on churches and sending people to Africa to convert the heathens and more on “doing good.” If they want to spend their own money “doing good” then more power to them. Just don’t spend mine.

  • andrea

    well, after dithering for years, I have just signed up as a member of FFRF. It’s nice having some income that I can now put to causes like this.

  • andrea

    well, after dithering for years, I have just signed up as a member of FFRF. It’s nice having some income that I can now put to causes like this.

  • Oz

    Any government program is inherently funded by all taxpayers. Claims that only some individual taxpayers are funding certain things are false because the revenue from the other taxpayers frees up the money to spend on the disputed project.

    Let’s say I drive home and my mom gives me cash for gas money, since she enjoys my visits. If I pay for my gas with a debit card and use the cash for groceries, have I violated her intent?

  • http://www.patheos.com/blog/daylightatheism/ Ebonmuse

    That’s wonderful, Andrea! Your country thanks you. :)

  • http://www.patheos.com/blog/daylightatheism/ Ebonmuse

    That’s wonderful, Andrea! Your country thanks you. :)

  • http://johnl.wordpress.com/ John Lloyd

    It’s 7 March and we’ll surely have to wait a bit to hear the decision on Hain. But, while we’re waiting for the decision on this one, at least we can celebrate the anniversary of the McCollum decision tomorrow.

  • rory ward

    I listen to you on 92.1 FM and agree with your (FFRF) principles and rational approach to questions.

  • rory ward

    I listen to you on 92.1 FM and agree with your (FFRF) principles and rational approach to questions.

  • paleoguy

    Why do churches need government funding. They are rich from bilking their flocks of their income. Why don’t they build more humble abodes and use whats left over for their shenanigans?

  • Christ Saves

    I was reading the ffrf.org page, when i saw that there was a comment that said “Even Jesus was against prayer in schools!” Uh NO HE WASN’T and ISN’T!!!! TAKE A LOOK IN THE BIBLE! Im a student who is doing a project on whether state and prayer should be seperated. I was very offened by the things on your page. And I am a PROJESUS!!!!! I believe that prayer in school is a great thing and feel strongly about this matter! :) JESUS LOVES YOU THANK YOU

  • Christ Saves

    I was reading the ffrf.org page, when i saw that there was a comment that said “Even Jesus was against prayer in schools!” Uh NO HE WASN’T and ISN’T!!!! TAKE A LOOK IN THE BIBLE! Im a student who is doing a project on whether state and prayer should be seperated. I was very offened by the things on your page. And I am a PROJESUS!!!!! I believe that prayer in school is a great thing and feel strongly about this matter! :) JESUS LOVES YOU THANK YOU

  • Polly

    @Christ Saves,

    I’m not sure what you mean by “prayer in school.” No one is trying to prevent students who wish to pray on their own from doing so outside of instruction time. Indeed, I don’t even think such a ban would be enforceable. It’s only when teachers/administrators force everyone to pray that it becomes a vioation of students’ rights.

    What if the prayer is to someone YOU don’t believe in? Would you like it if kids were supposed to bow their heads every morning for prayer to Allah in public schools? What if a school district or even a single school has a majority of Muslims in it? Or Jews, or Hindus, etc? Should the prayer be to that god?

    What’s wrong with reserving class time just for education and leaving the religious practices to each individual on their own time? There are private schools if one wants to indoctrinate their children. State schools are for ALL citizens, not just Christian ones.

  • http://nesoo.wordpress.com/ Nes

    I’m hardly a Biblical expert, but I would guess that the person was referring to Matthew 6:5-6

    And when thou prayest, thou shalt not be as the hypocrites are: for they love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men. Verily I say unto you, They have their reward. But thou, when thou prayest, enter into thy closet, and when thou hast shut thy door, pray to thy Father which is in secret; and thy Father in secret shall reward thee openly.

  • http://nesoo.wordpress.com/ Nes

    I’m hardly a Biblical expert, but I would guess that the person was referring to Matthew 6:5-6

    And when thou prayest, thou shalt not be as the hypocrites are: for they love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men. Verily I say unto you, They have their reward. But thou, when thou prayest, enter into thy closet, and when thou hast shut thy door, pray to thy Father which is in secret; and thy Father in secret shall reward thee openly.

  • Jerryd

    FFRF lost that Supreme Court battle, as did all Americans who love and respect our Constitution. Here’s a what if that I’m hoping someone can answer: What if President Bush decides that he has a better chance of getting the result he wants in Iraq if he converts to Islam? After that he decides that only Islamic faith-based programs will receive government support. Am I correct in assuming that his former Christian buddies are out in the cold? They would have no way to stop his diverting all the funds he wants toward his new-found religious cause? We, in fact, would thus have a complete dictatorship at this time as regards any expenditures the president wants to make on religion? If not, what exactly is the situation?

  • Jerryd

    FFRF lost that Supreme Court battle, as did all Americans who love and respect our Constitution. Here’s a what if that I’m hoping someone can answer: What if President Bush decides that he has a better chance of getting the result he wants in Iraq if he converts to Islam? After that he decides that only Islamic faith-based programs will receive government support. Am I correct in assuming that his former Christian buddies are out in the cold? They would have no way to stop his diverting all the funds he wants toward his new-found religious cause? We, in fact, would thus have a complete dictatorship at this time as regards any expenditures the president wants to make on religion? If not, what exactly is the situation?


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