I‘m sorry to report some bad news for allies of church-state separation everywhere. Back in February, I wrote about a momentous case before the U.S. Supreme Court, in which the Freedom from Religion Foundation argued that George W. Bush should not have the right to unilaterally use money appropriated by Congress to fund religious organizations. That case, Hein v. FFRF, has been decided, with the court ruling 5-4 in the administration’s favor. This is a sad outcome, though not terribly shocking, given Bush’s two new appointees to the court. Had Justice Sandra Day O’Connor not resigned, to be replaced by Samuel Alito, the outcome might well have been different. I have long wondered what O’Connor was thinking when she resigned – she must have known that she would be replaced by a far more reactionary justice.
Strictly speaking, the court did not rule that Bush’s faith-based initiative is constitutional. Hein was not about whether such programs are legal, but a more technical issue: whether taxpayers have standing to sue when the executive branch uses their tax money to promote religion. A 1968 precedent, Flast v. Cohen, held that taxpayers have automatic standing when their tax payments are used to fund religion by an act of Congress. The Supreme Court refused to apply that same principle to the executive branch, which leads to a bizarre conclusion: it could well be the case that the president is doing something unconstitutional, yet no one has any power to force him to stop.
This decision poses a great threat to church-state separation. Although it is still completely unconstitutional for Congress to allocate tax funds to support and promote religion (the one bright spot in this decision is that Flast itself was not overturned, as some amicus briefs in the case had urged), the door is now open for Congress to allocate general funds for the president to use in the very same ways that Congress itself could not legally do. Anything, up to and including building churches and hiring ministers with government money, would seem to be within the power of the executive. This is a worrying boost to the theory of the “imperial presidency” championed by George W. Bush and his administration, which holds that the president is equivalent to a king with the unilateral power to enact his will into law by fiat without being subject to any checks, balances or oversight. No breaches of the church-state wall so flagrant have been committed yet (though the ones that have already occurred are bad enough), but only time will tell what the ramifications of this decision will be. (Read FFRF’s press release on the case.) America’s founders, who made their opposition to religious establishments exceedingly clear, would without any doubt have been amazed and horrified by the claim that they intended to imbue any member of government with such monarchical power.
Though the church-state wall has been dealt a setback, friends of liberty can take solace in the idea that ours is a long fight. It is not as if we have lost our way and are on a steady slide toward theocracy (though some recent events might understandably give people the wrong impression). On the contrary, would-be theocrats have been trying to get around the Constitution since it was first written, with varying degrees of success. If we trace the history of this country, in the long term they are losing ground, rather than gaining it. It was only a little over a hundred years ago that Americans were still being prosecuted for blasphemy!
The Supreme Court’s new rightward tilt is likely to last for at least a decade, even if a Democrat wins the next presidential election. Therefore, it’s essential that people of principle come together to form a new, revitalized progressive movement. The tools and principles we need are still within our reach, if only we wield them effectively. There are encouraging signs that this is already happening, but much work still remains to be done. Most of all, we nonbelievers need to use this decision as a rallying cry in defense of the First Amendment. The FFRF has already seen a surge in membership as a result of the publicity from this case. If you’re not already a member, there’s no better time to join and lend your voice to the fight against theocracy in the last bastion of religious fundamentalism left in the Western world.
Other posts in this series: