George W. Bush took the presidential oath on that January day in 2001, came home from the Hill, and promptly issued Executive Order No. 13,199. Thus he created, overnight, the White House Office of Faith-Based and Community Initiatives.
Created the what? I’m not making this up. Among the president’s first official acts was to set up a program "to expand the work of faith-based and other community organizations …" Two federal judges put the program on hold last January, but now it’s in the Supreme Court on the government’s petition for review. If the court takes the case, a major ruling in the law of church and state could be expected next year.
The First Amendment says, among other things, "Congress shall make no law respecting an establishment of religion," but "no law" hasn’t meant literally "no law" since the first Congress provided chaplains for the Army. This particular program of grants-in-aid works in large part through conferences, seminars and training sessions. It does not provide grants directly to religious entities, but it does provide grants intended to educate local groups in how to file for grants. It has been expanded repeatedly.
Now the program is under challenge from the Freedom From Religion Foundation. Created in 1978, the foundation today numbers 7,500 free-thinkers, atheists and agnostics, scattered over every state and several foreign countries. Its home office is, naturally, in Madison, Wis. Its principal purpose is to pursue lawsuits aimed at keeping church and state apart. Currently the foundation is giving the Bush administration a hard time, not only for its faith-based initiatives but also for maintaining chaplains in veterans hospitals and for promoting a women’s Sunday school in a New Mexico prison.
Regrettably, but understandably, this important case is gummy going. The foundation and members Anne, Annie and Dan brought their suit against the White House and a dozen Cabinet members in U.S. District Court. They lost there, but won on appeal to the 7th Circuit. There, Judge Richard Posner, writing for a divided panel, termed the foundation’s complaint "wordy, vague, and in places frivolous." However, he thought that in portraying the White House-sponsored conferences as "propaganda vehicles for religion," the plaintiffs may have raised a fair question for trial.
The questions offered to the high court in the government’s appeal are dull on the surface and duller down below — but they’re important. What is the foundation’s "standing" to pursue the case? Has it suffered any significant damage? What are the limits on presidential spending by executive order?
In cases of this nature, "standing" is everything. The foundation, which pays no federal taxes, has no standing to sue as a taxpayer. Here it sues through taxpayers Anne, Annie and Dan. Their pain and suffering stem from this assumption, that somewhere some subsidized members of a ladies’ sodality are being taught to run a soup line. Is this the sort of awful injury the high court should enjoin? What concrete injury have the plaintiffs suffered?
Judge Posner, usually a very loquacious fellow, was having a bad hair day when he wrote this opinion in the 7th Circuit eight months ago. He defined the question clumsily as "whether a taxpayer can ever have standing under Article III of the Constitution to litigate an alleged violation of the First Amendment’s establishment clause unless Congress has earmarked money for the program or activity that is challenged."
The legal requirements for "standing" in cases such as this one range from faint to fuzzy to firm. The District Court cited one faith-based grant three years ago that may have been over the line. It went to MentorKids USA to conduct programs for the children of state prisoners in Phoenix, Ariz. The programs, intended "to introduce children to the gospel of Jesus Christ," had to be conducted "only by Christians." After objections were raised to their sectarian flavor, the grant was suspended.
Few areas of constitutional law are fuzzier than the law on establishments of religion. Over the past 50 or 60 years, since the First Amendment mysteriously was extended to the states, the country has witnessed a muddy stream of high court opinions attempting to educate us in its meaning. Thus a municipality may sponsor a Christmas display that contains not more than one Santa Claus, two clowns, one virgin, one baby, two angels and a stuffed camel. Or some such. Constitutions are hard to construe. This case isn’t likely to make the task one bit easier.
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