February 22, 2007
Faith-based court case has wider implications
By Paul M. Krawzak
Copley News Service
WASHINGTON The Supreme Court’s review of a lawsuit next week
challenging President Bush’s faith-based initiative is more
critical to the future of church-state relations than it would
first appear, attorneys involved in the case said Wednesday.
In the narrowest sense, the case — Hein vs. Freedom from
Religion Foundation — is about whether taxpayers have the legal
standing to sue the federal government over regional conferences
sponsored by the Bush administration to promote its faith-based
PURPOSE OF LAWSUIT
The foundation sued Jay Hein, director of the White House
Faith-Based & Community Initiative, contending that regional
conferences paid for by the faith-based initiative were
“propaganda vehicles” for religion — a charge denied by the
But the larger issue at play, attorneys participating in a panel
said, is whether the high court might overturn an earlier
decision and in so doing narrow the grounds under which
Americans can challenge what they view as violations of the
The panel was sponsored by the self-described “progressive”
American Constitution Society for Law and Policy.
“Flast is the battleground here, not Hein,” said attorney
Benjamin W. Bull, referring to the court’s 1968 decision in
Flast vs. Cohen. Bull is opposed to the foundation’s lawsuit.
In the Flast decision, the court carved out an exception to
existing law, allowing Americans in their role as “taxpayers” to
challenge alleged violations of the separation between church
The Supreme Court generally bars Americans from challenging
federal spending decisions in court.
When he established the office of faith-based initiatives in
2001, Bush said it would create a level playing field, allowing
religious organizations to compete for federal funds for
non-religious social-service programs they offered.
Critics charge the faith-based effort does not have clear enough
safeguards against using federal money to support proselytizing
or religious-based discrimination in hiring.
The Hein case, which will be argued in front of the Supreme
Court next Wednesday, is the first challenge to the faith-based
initiative that the court will hear.
Opponents of the Flast decision, such as Bull, chief counsel of
the Alliance Defense Fund, hope the court will overturn it as
part of its ruling on the Hein case.
WHAT IF RULING’S REVERSED
Backers of the Flast decision warn that a reversal would make it
much more difficult for Americans to challenge actions that
erode the constitutional separation of church and state.
Overturning Flast would “cut out a whole class of cases,” said
Richard B. Katskee, assistant legal director for Americans
United for the Separation of Church and State. The group
Bull countered that if Flast were reversed, Americans would
still be able to challenge alleged violations if they could show
For example, he said a schoolgirl forced to join in a prayer at
a public school could sue, claiming her constitutional rights
Judith E. Schaeffer, associate legal director of People for the
American Way Foundation, said Flast should be kept in place to
preserve the right of taxpayers to challenge what they view as
unconstitutional government support of religion.
“Taxpayers are injured when they’re forced to subsidize
religion,” she said.
The attorneys at the forum said the court might only rule on the
Hein case and not touch the Flast decision.
If the court rules that the Freedom from Religion Foundation has
the legal standing to sue the administration over the regional
conferences, the case would go back to be resolved in federal
Were the court to rule the foundation does not have standing to
sue, the case would end there.