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Taxpayers' Right to Sue over Church-State Violations

The June 2007 decision in Hein v. Freedom From Religion Foundation, involving whether taxpayers had a right to sue over the constitutionality of White House outreach to religious groups, resulted in a restriction of taxpayers’ ability to challenge alleged church-state violations in courtrooms across 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 Bush Administration’s Faith-Based and Community Initiative had 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. After the Hein decision, that distinction 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 were ever heard.

The Roundtable's co-directors of legal research - George Washington University Law Professors Ira C. Lupu and Robert W. Tuttle - addressed the possible ramifications of the Hein decision in an in-depth legal analysis (accessible here) posted in July 2007, but acknowledge that the decision’s consequences were difficult to predict. Professor Lupu also discussed the case in a Roundtable interview, accessible here, and in presentations of the Roundtable’s annual “State of the Law” reports in 2007 and 2008.

The Hein decision also factored into Lupu and Tuttle’s legal analyses of several other lower court cases, including these:

Freedom from Religion Foundation, Inc. (and others) v. Carol Olson (and others), Decided July 16, 2008

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 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

  • Jay Hein, Director of the White House Office of Faith-Based and Community Initiatives, Sept. 5, 2006
  • Annie Laurie Gaylor of the Freedom From Religion Foundation, Nov. 15, 2005

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 2008 State of the Law report.

Click here to read a transcript of Lupu and Tuttle’s presentation on the State of the Law at a Roundtable event in Washington, D.C., on Dec. 2, 2008.

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

Americans United with the ACLU, Joint Baptist Convention, People for the American Way and Anti-Defamation League amicus brief (PDF)

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