Jay Hein, Director, White House Office of Faith-Based and Community Initiatives et al. v. Freedom From Religion Foundation, Inc. et al.The June 2007 decision in this case, involving whether taxpayers had a right to sue over the constitutionality of White House outreach to religious groups, continues to reverberate in courts throughout the nation. The lawsuit, first brought by Freedom From Religion Foundation in June 2004, was aimed originally at a series of regional conferences on federal aid to religious groups sponsored by the White House Office of Faith-Based and Community Initiatives. Portions of the lawsuit, involving government grants to specific religious organizations, were allowed to move forward under different case names. As the case moved upward through the federal courts, the issue remaining for the Supreme Court to decide was whether the taxpayer plaintiffs had “standing” – the right to sue – in cases involving the First Amendment’s Establishment Clause (“Congress shall make no law respecting an establishment of religion”). The nation's highest court ruled that taxpayers may not mount legal challenges against the government over funding to religious organizations unless Congress has specifically authorized the programs that provide the money. Citizens may not sue over purely discretionary actions of the President and his administration paid for out of general administrative funds, the court determined. That meant taxpayers had no right to sue the White House faith-based office over its conferences or other activities; lacking congressional support, the federal Faith-Based and Community Initiative has been advanced largely by executive orders issued by the President rather than legislative action. Before this case, courts did not make a distinction between executive or legislative responsibility for a government action when deciding whether citizens could mount a legal challenge against it based on church-state separation grounds. Since the Hein decision, that distinction has influenced the kind and number of lawsuits brought, and increased the tendency of defense attorneys to question plaintiffs’ standing before arguments about alleged constitutional violations are ever heard. Lower courts will no doubt continue to grapple with what the Hein decision means for taxpayer challenges of government activity, especially when the plaintiffs are state or local taxpayers, rather than the federal taxpayers whose challenge was addressed in Hein. The Roundtable’s co-directors of legal research – George Washington University Law Professors Ira C. Lupu and Robert W. Tuttle – address the possible ramifications of the Hein decision in an in-depth legal analysis (accessible here) , but acknowledge that the decision’s consequences are difficult to predict. Professor Lupu also discusses the case in a Roundtable interview, accessible here. The Hein decision also factors into Lupu and Tuttle’s legal analyses of several other recent cases pending in or decided by lower courts, including these: Alicia M. Pedreira (and others) v. Kentucky Baptist Homes for Children (and others), Decided March 28, 2008 American Civil Liberties Union Foundation of Louisiana, Inc. v. Kathleen Babineaux Blanco, et.al. , Decided Oct. 5, 2007 Freedom from Religion Foundation, Inc. (and others) v. Lisa Bjergaard, Daniel P. Richter, and the Dakota Boys and Girls Ranch, Inc., filed June 19, 2007 The Roundtable’s news coverage has also included stories on cases that affected by the Hein decision since June 2007:
The Roundtable has closely followed this case since it was originally filed in June 2004, and known as Freedom From Religion v. Towey. The part of the case that became known as Hein v. FFRF is the focus of the following news stories, interviews and legal analyses. Roundtable News Coverage Through June 2007
Related Roundtable Interviews
Roundtable Legal Analyses of Hein v. FFRF As noted above, Professors Ira C. Lupu and Robert W. Tuttle have written an analysis, available here, of the June 2007 Supreme Court decision, including potential interpretations by lower courts. Professors Lupu and Tuttle also discussed the case fully in the Roundtable's annual State of the Law reports. Click here to download the 2007 State of the Law report. Click here to read a transcript of Lupu and Tuttle’s presentation on the State of the Law at the Roundtable’s Dec. 5, 2007 conference in Washington, D.C. Click here to download the 2006 State of the Law report. Click here to read a transcript of Lupu and Tuttle's presentation on the State of the Law at the Roundtable's Dec. 5, 2006 conference in Washington, D.C. Click here to download the 2005 State of the Law report. Click here to download the 2004 State of the Law report. Lupu and Tuttle first analyzed the case, then known as Freedom From Religion Foundation v. Towey, in June 2004. Click here for the analysis. They also discussed the issue of "taxpayer standing," which the Supreme Court considered in this case, in the publication "Structural Concerns in Establishment Clause Litigation," available here.
Court Documents Below are documents filed with the Supreme Court as part of its review of the case. The White House Office of Faith-Based and Community Initiatives filed its opening brief with the Supreme Court in January 2007, asking the justices to rule against the right of citizens to sue the federal government over Establishment Clause claims. Several parties filed friends-of-the court briefs supporting its position, including a coalition of a dozen states that run their own faith-based and community initiatives, as well as several groups that advocate for religious liberty. Through the links below, you can access the brief of the White House faith-based office as well as groups supporting its position: Opening brief of the White House Office of Faith-Based and Community Initiatives Amicus brief of 12 states (Indiana, Alabama, Colorado, Florida, Michigan, Nevada, North Dakota, Oklahoma, South Carolina, Texas, Virginia and Washington) Amicus brief of the Christian Legal Society Amicus brief of the Foundation for Moral Law Amicus brief of the American Center for Law and Justice In February 2007, Freedom From Religion Foundation filed its brief asking the Court to decide in favor of citizens' right to sue the government in Establishment Clause cases involving expenditures directed by the executive b ranch of the federal government. Various groups interested in civil liberties and church-state separation filed briefs in support of the Wisconsin-based group of atheists and agnostics. Through the links below, you can access the briefs of Freedom From Religion Foundation and various parties supporting its position in the case: FFRF Brief to the U.S. Supreme Court Center for Free Inquiry/Center for Secular Humanism amicus brief (PDF) American Atheists amicus brief (PDF) Historians and Legal Scholars amicus brief (PDF) On February 16, the White House Office of Faith-Based and Community Initiatives filed a reply brief with the Court: Reply Brief of the White House Office of Faith-Based and Community Initiatives
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