Taxpayers Can Sue Over Bush ‘Faith-Based’ Office, AU Tells Court

Taxpayers should have the right to challenge the Bush administration’s use of public funds to support religion, Americans United for Separation of Church and State told the U.S. Supreme Court last month.

In a friend-of-the-court brief filed Feb. 2, Americans United urged the justices to uphold precedent that allows taxpayers to sue when the government uses tax dollars for religious purposes.

The issue arose after the Freedom From Religion Foundation (FFRF), a Wisconsin organization, filed a lawsuit challenging President George W. Bush’s creation of the White House Office of Faith-Based and Community Initiatives and various conferences promoting the “faith-based” agenda.

Three Foundation officers are serving as taxpayer plaintiffs in the case, but attorneys with the federal government assert they do not have the right to sue since the money in question is from a White House discretionary fund and does not go directly to religious organizations.

“We hope the Supreme Court rules that taxpayers may go to court to challenge government spending that supports religion,” said Barry W. Lynn, executive director of Americans United. “Public funds should not be used to advance religion, and Americans must have the ability to prevent that from happening.”

Hein v. Freedom From Religion Foundation was scheduled for argument before the high court Feb. 28, and a decision is expected by the end of June. The Bush administration is urging the Supreme Court to overrule the 7th U.S. Circuit of Appeals and other federal courts that have upheld taxpayer challenges to government expenditures on religion.

The administration argues that legal precedent only allows taxpayers to sue if Congress appropriates money that goes directly to religious organizations.

Americans United, along with the American Civil Liberties Union Foundation, the Anti-Defamation League, the Baptist Joint Committee for Religious Liberty and People For The American Way Foundation, said the Bush administration’s analysis is flawed and an attempt to block citizens from fighting for their constitutional rights.

Citing a 1968 Supreme Court decision, the groups’ brief noted that history “vividly illustrates that one of the specific evils feared by those who drafted” the First Amendment “was that the taxing and spending power [of Congress] would be used to favor one religion over another or to support religion in general.”

The 23-page brief concluded that the high court should protect the principle that, “When taxes levied and appropriated by Congress are spent in violation” of the separation of church and state “a taxpayer may constitutionally challenge such expenditures because he suffers a direct and concrete injury that is caused by the illegal expenditure and that would be redressed by enjoining it.”

Other organizations filing briefs in support of the FFRF include a joint brief by the American Jewish Congress and American Jewish Committee, a brief by the American Atheists and a brief prepared by a group of legal scholars.

Several Religious Right groups took the opposite view. Briefs opposing the Foundation’s right to sue were filed by TV preacher Pat Robertson’s American Center for Law and Justice, the Alliance Defense Fund, the Becket Fund for Religious Liberty, former Alabama Chief Justice Roy Moore’s Foundation for Moral Law and the Christian Legal Society.

In addition, the attorneys general of 12 states filed a brief urging the Supreme Court to deny the right to sue: Alabama, Colorado, Florida, Indiana, Michigan, Nevada, North Dakota, Oklahoma, South Carolina, Texas, Virginia and Washington.