June 26, 2007
Column #1,348
Advance for June 29, 2007
Atheists Unable to Kill Faith-Based Initiative
by Mike McManus

The U.S. Supreme Court rejected a lawsuit by a 5-4 vote filed by The Freedom from Religion Foundation to terminate President Bush's Office of Faith-based and Community Initiatives. The Foundation calls itself the nation's largest atheist organization.

"Had Justice O'Connor remained on the court, as she was when we filed this lawsuit, we are confident this would have been a 5-4 decision in our favor," said the Foundation's president.

When he was Governor of Texas, Bush came across "Teen Challenge" a drug addict recovery program which had a very high success rate because it emphasized the importance of making a commitment to Christ, to seek His help to overcome the addiction. It was 3-4 times more effective than secular programs, but could not get funded because it was "faith-based."

Therefore, one of his first actions as president was to create the Faith-Based & Community Initiatives Office in the White House and in major federal agencies whose goal was
to ensure that "private and charitable groups, including religious ones...have the fullest opportunity permitted by law to compete on a level playing field" for federal grants.

In fiscal 2005 seven federal agencies awarded $2.1 billion to religious charities, up 16 percent from 2003, and represented 11 percent of the grants from those agencies for such programs as substance abuse treatment, housing for AIDS patients, community re-entry for inmates, housing for homeless veterans and emergency food assistance. However, none of the federal money can be used to proselytize, only to provide services.

The President praised the decision as a "substantial victory" for "strengthening America's armies of compassion. Those in need are better served when government draws in the strengths of every willing community partner - secular and faith-based."

The atheists filed a suit on grounds it made the government "vehicles of religious propaganda." It alleged that faith-based groups "are singled out as being particularly worthy of federal funding," and that believers are "insiders and favored members of the political community."

Regrettably, the Court did not deal with such arguments directly, but decided on technical grounds that the Foundation did not have "standing" to sue since its officers only did so only as taxpayers, and did not "allege personal injury."

"It is a complete fiction to argue that an unconstitutional federal expenditure causes an individual federal taxpayer any measurable economic harm," wrote Justice Samuel Alito for the majority. "If every federal taxpayer could sue to challenge any Government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus."

The atheists rested their case on a decision in 1968 of Faust v. Cohen, to allow a challenge to the Elementary and Secondary Education Act created to improve education of the poor, that allowed some of its hundreds of millions to go to parochial schools.  The Court ruled that violated the First Amendment which says "Congress shall make no law respecting an establishment of religion."

However, Congress passed no law to create the small faith-based office. Rather, the President simply assigning the task to several staff in the White House plus perhaps 40 people in 11 agencies. The Court noted the lawsuit cited "no statute whose application they challenge."

The lawsuit did allege that it is "arbitrary" to distinguish between a Congressional mandate and a decision by the Executive branch, because both are supporting religion with "funds exacted from taxpayers."

Interestingly, Justices Antonin Scalia and Clarence Thomas agreed with the challengers that the Faust exception muddied the waters, saying "there is no intellectual justification" for halting some funding for faith-based work while allow others. They wanted to actually overturn the 1968 ruling that they called "an inkblot on our jurisprudence," but voted with the majority on the more narrow position, that the atheists lacked standing and could cite no Congressional action to create the office.

Justice David Souter, writing for the minority, charged, "The controlling opinion closes the door on these taxpayers because the Executive Branch and not the Legislative Branch, caused their injury. I see no basis for this distinction in either logic or precedent, and respectfully dissent."

However the Freedom from Religion Foundation saw a "silver lining" in the fact the Faust decision was not overturned.  Bush's two appointees to the Court, Roberts and Alito, are conservative, but are incrementalists, who balance previous Court rulings with new challenges.

Nevertheless, Jay Sekulow, chief counsel for the American Center for Law and Justice which filed a brief supporting Administration, called the decision "a very significant victory."