Hein v. Freedom from Religion Foundation, 551 U.S. 587 (2007), was a decision by the United States Supreme Court which ruled that taxpayers do not have the right to challenge the constitutionality of expenditures by the executive branch of the government.. The issue was whether taxpayers have the right to challenge the existence of the White House Office of Faith-Based and Community Initiatives. The case centered on three Supreme Court precedents: Flast v. Cohen,. Bowen v. Kendrick,. and Valley Forge Christian College v. Americans United for Separation of Church & State..
In a 5–4 vote the Supreme Court ruled that the Foundation did not have standing to sue and reversed the court of appeals.
Background In January 2001, President George W. Bush created the White House Office of Faith-Based and Community Initiatives within the Executive Office of the President by an Executive Order. Later Executive Orders created centers for the Office within the Departments of Justice, Labor, Health and Human Services, Housing and Urban Development, Education, and Agriculture, as well as at the Agency for International Development.
The Freedom from Religion Foundation and three of its members (Anne Nicol Gaylor, Annie Laurie Gaylor, and Dan Barker) filed an action against the Director of the White House Office and the Directors of Centers of the Office created within the above-mentioned Federal Departments. The Foundation and its members asserted standing based solely on their status as federal taxpayers. It was noted that "Because the Foundation itself is a non-profit entity that is exempt from paying federal income taxes under 26 USC 501(c)(3), the Foundation lacks taxpayer status in its own right, and can assert it, if at all, only on behalf of its taxpaying members. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40 (1976)."
The Foundation and its members complaint was over "the use of money appropriated by Congress under Article I, section 8, to fund conferences that various executive branch agencies hold to promote President Bush’s 'Faith-Based and Community Initiatives.'" The Foundation held that "the defendant officials violated the Establishment Clause of the First Amendment by organizing national and regional conferences at which faith-based organizations allegedly 'are singled out as being particularly worthy of federal funding because of their religious orientation, and the belief in God is extolled as distinguishing the claimed effectiveness of faith-based social services.'" They also alleged that "the defendant officials 'engage in myriad activities, such as making public appearances and giving speeches, throughout the United States, intended to promote and advocate for funding for faith-based organizations.'" They further asserted that "Congressional appropriations [are] used to support the activities of the defendants."
The Foundation and its members sought a "declaratory judgment that the officials' activities violate the Establishment Clause, an injunction prohibiting further 'use [of] appropriations in violation of the Establishment Clause,' and 'an order requiring the defendants to establish rules, regulations, prohibitions, standards and oversight to ensure that future appropriations' comport with the Establishment Clause."
The Directors of the White House Office and its centers, moved that the complaint against them be dismissed for lack of standing.
Lower courts
District court The motion to dismiss the complaint for lack of standing was granted by the United States District Court for the Western District of Wisconsin. The court held Establishment Clause challenge standing was limited to "exercises of congressional power under the taxing and spending clause of Article 1, § 8." They held that the action of the directors "are not 'exercises of congressional power' as required by the Flast test."
The court noted that in Bowen v. Kendrick, it was "clarified that the disbursement of federal funds by an Executive agency in the administration of a congressional program could be challenged consistent with Flast", but they pointed out that "The President established the White House OFBCI by Executive Order and funded it with general budget appropriations." They found that this meant that the Director of the office and other officials working within the program "have no congressional mandate. Rather, he acts at the President’s request and on the President’s behalf", so none of them were "charged with the administration of congressional programs." They stated that "The view that federal taxpayers as such should be permitted to bring Establishment Clause challenges to all Executive Branch actions on the grounds that those actions are funded by congressional appropriations, has never been accepted by a majority of the Supreme Court."
Dismissal of claims The Foundation and its members had also brought suit against Rod Paige, United States Secretary of Education from 2001 to 2005. This was over a keynote speech at a White House Conference on Faith-Based and Community Initiatives in October 2002 where Paige said "With the stroke of a pen, the President signaled that this Administration will knock down any barrier, will do whatever it takes to get people of faith and goodwill involved in helping solve some of the problems in our society today. Now, President Bush does this because he knows first-hand that power of faith to change lives—from the inside out. And the reason he knows this is because faith changed his life ... He grew up in church, but like most of us, he didn’t always walk the walk. Many years ago, at a particularly low point in his life, he realized that something was missing. Fortunately for him, he bumped into the Reverend Billy Graham. And they had a long, long, long conversation. And he made a decision coming out of that conversation that changed his life. And he believes that if it can change his life, it can change the lives of others as well. And that is why he is so committed to this. So the reason we’re all here today is not because some politician needs to knock off one more thing on his ‘to do’ list. We are here because we have a President, who is true, is a true man of God. A man who prays every day. And I think together, we can really make a difference for mankind, for Americans, we can make America a better place. We can, and I enjoyed the prayer, as we began, served, getting food. He said, if the Jews could be better Jews, and if Christians could be better Christians, if all of us could just be a little better ourselves, what a difference that would make in this world, what a difference that would make." The Foundation and its members had held that this "gave the appearance of endorsing religion."
The court ruled "These statements ... are too far removed from any congressional action taken pursuant to the taxing and spending clause of Art. I, § 8, of the Constitution to satisfy the Flast test. Defendant Paige will be dismissed".
The Foundation also voluntarily dismissed several "claims that the heads of certain federal agencies had violated the Establishment Clause by 'directly and preferentially fund[ing]' particular programs that allegedly 'integrate religion as a substantive and integral component' of their activities." They maintained their claims on two programs administered by the Secretary of Health and Human Services.
Summary judgment motions The Foundation and its members had requested a summary judgment against Emory University and MentorKids USA.
Emory University had received funds from the Department of Health and Human Services' Compassion Capital Fund Grant for its "Strong Partners Initiative". Emory divided and distributed some of this funding to other groups that met its criteria. The Foundation claimed that Emory's use of the government funds had violated the Establishment Clause by giving "preferential treatment to religious organizations in their selection of organizations for subawards under the grant." The court granted the petition to make summary judgment holding that the Foundation did have standing under Flast because the grant issued to Emory stemmed from a program Congress established in the Promoting Safe and Stable Families Amendments of 2001, Pub. L. No. 107-133. Upon review of the claims brought forward by the Foundation the court did not find that Emory's selection process favored religious organizations, and ruled that the Foundation "failed to demonstrate the existence of a genuine issue of material fact as to Emory University’s CCF grant." The court agreed with the government that as the Foundation had failed to substantiate claims against Emory there was no real dispute and so summary judgment could be, and was, made "in favor of defendants against plaintiffs affirming the Department of Health and Human Service's Compassion Capital Fund Grant to Emory University."
The Foundation also asked for a summary judgment on whether the group MentorKids USA a recipient of a subaward from Emory had violated the Establishment Clause. Again the court cited Flast and the same Congressional act as it had above to grant the Foundation standing in this instance as well. MentorKids' stated mission was to "exalt the Lord Jesus Christ as the Son of God," they hired only Christians as mentors, and required them to give monthly reports on the progression of their mentee's "relationship with God." Upon learning of this the Department of Health and Human Service had suspended MentorKids' grant. The court acknowledged that the grant had been suspended but ruled that "Defendants must bear the heavy burden to prove that there is no reasonable expectation that the wrong will be repeated. ... Defendants have failed to meet this burden, having failed to provide sufficient assurances that the grant will not be reinstated." Because of this the court made summary judgment for the Foundation ruling that the "grant to MentorKids USA is vacated and further funding is denied as it relates to its present structure."
Appeals court The district court's decision was appealed and heard by a panel of the Seventh Circuit Court of Appeals on September 13, 2005. The Appeals court made a decision on January 13, 2006, that vacated the order of dismissal and remanded the decision. Judge Richard Posner, writing for the majority, held that "Taxpayers have standing to challenge an executive-branch program, alleged to promote religion, that is financed by a congressional appropriation, even if the program was created entirely within the executive branch, as by Presidential executive order," as long as the actions of the Executive Branch officials are financed by general appropriations.Chao, 433 F.3d at 996-97. The majority held that taxpayer standing "extends beyond programs that allocate federal funding to third parties, and includes challenges to any Executive Branch activity funded "from appropriations for the general administrative expenses, over which the President and other executive branch officials have a degree of discretionary power ... [as opposed to funding] from, say, voluntary donations by private citizens." They held that standing exists even without a statutory program enacted by Congress and even if the taxpayer is "unable to identify the appropriations that fund the [challenged activity]".Chao, 433 F.3d at 994.