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Taxpayers no longer have standing to challenge $2.2 billion in the president’s discretionary funding of faith-based groups, but that has not eliminated litigation, just altered tactics. Atheists, agnostics and other plaintiffs suing over presidential grants to faith-based community groups may need the patience of Job to survive the U.S. Supreme Court’s tougher standing requirements for bringing establishment clause challenges. Under the new legal limits in the Supreme Court’s June decision, Hein v. Freedom From Religion Foundation, 433 U.S. 989 (2007), taxpayers no longer have standing to assert establishment-of-religion claims when the president spends discretionary funds to pay for faith-based social programs. Standing remains only for challenges of congressional appropriations that benefit religious groups. This has prompted a shift in litigation strategies, from dropping long-shot suits to replacing taxpayer plaintiffs with individuals asserting injury from the use of tax funds for faith-based programs. In New Mexico, a 2005 taxpayer suit challenging a Christian “God Pod” in a woman’s prison was dropped this summer in the face of a Hein standing challenge. But in Indiana, a suit succeeded, despite Hein, in ending state payments to a Baptist minister hired to counsel state social workers. And a pending appeal at the 7th U.S. Circuit Court of Appeals challenges millions in tax dollars spent on expanded use of chaplains in Veterans Administration (V.A.) health services. The appeal includes a recently added standing challenge. “ Hein does not just apply to federal action. It can percolate down to state action,” said Annie Laurie Gaynor, co-founder of the Freedom From Religion Foundation (FFRF) in Madison, Wis. Her fear is that it will be read by courts to hold that executive decisions of all types are off limits to taxpayer challenge. If cabinet secretaries, governors or a department of corrections can fund faith-based groups, “that means you have a huge loophole to entangle church and state. That will be the worst outcome of Hein, if it is broadly applied by courts,” she said. “It is too soon to say what is going to happen after Hein,” said Jordan Lorence, senior counsel for the Alliance Defense Fund, a leading conservative Christian public-interest law firm. The future of litigation “will depend on whether the courts draw fine lines, or Hein is a pretty broad rule.” The decision in Hein cut back a 40-year-old precedent, Flast v. Cohen, 392 U.S. 83 (1968). The Flast case carved out a narrow exception to the general constitutional prohibition against taxpayer standing. A taxpayer plaintiff can allege that federal funds were improperly appropriated by Congress for express mandates favoring religious groups. Hein narrowed that exception to say that taxpayer standing does not extend to discretionary spending by the president on faith-based groups. Hein has reinvigorated efforts by religious groups that want to eliminate all taxpayer standing to bring establishment clause claims, whether funded by the executive or legislature. “ Flast is ripe for overturning,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, a conservative Christian law firm founded by religious broadcaster Pat Robertson. Sekulow urged the Supreme Court to do just that in briefs in the Hein case. “Is the fifth vote there? This case didn’t tell us. Suggesting the court reaffirmed Flast would be an overstatement,” he said. Michele Estrin Gilman, a professor at the University of Baltimore School of Law, disagreed. Justice Antonin Scalia wants Flast overturned, she said. “But it doesn’t appear the others are willing to go that far. I don’t see the trend toward that.” Grants to faith-based organizations are not small. Preliminary fiscal year 2006 figures indicate that $2.16 billion will be awarded by 11 federal agencies and departments to religiously oriented groups in 130 competitive programs, according to the White House Office of Faith-Based and Community Initiatives. One year earlier, it was $2.15 billion by seven agencies. “It seems extremely difficult for any entity to have standing for executive expenditures,” said Lori Lipman Brown, director of the Secular Coalition for America in Washington. “Unless Congress tells the president, ‘you can’t establish religion in government,’ Congress will have to statutorily restrict what is done with the funds,” she said. In New Mexico, the FFRF dropped its 2005 taxpayer challenge to a state-funded fundamentalist Christian ministry program in the women’s prison this summer when taxpayer standing was raised. FFRF v. Richardson, No. 05-CV-1168 (D.N.M.). “It was such a strong case, but totally on taxpayer standing,” said Gaynor. “Rather than get embroiled on standing, we agreed to end the case.” In Louisiana, the American Civil Liberties Union filed suit in August challenging $120,000 in unrestricted state grants for two Christian churches as improperly subsidizing preferred religions groups without designating nonsectarian use for the funds, ACLU v. Blanco, No. 07-cv-4090SSV (E.D. La.). It is still pending. By contrast, Indiana ended a state program that paid a Baptist minister $60,000 a year to meet the spiritual needs of employees of the state’s Family and Social Services Administration. FFRF v. Roob, No. 07-CV-559DFH (S.D. Ind.). The suit was withdrawn on Sept. 25. A challenge to the V.A. Perhaps the largest pending faith-based funding challenge is the suit against the V.A. In 2006, FRFF brought a taxpayer challenge, in Wisconsin federal court, to a V.A. expansion of chaplaincy programs. In January, U.S. District Judge John C. Shabaz ruled that the integration of religion and spirituality into all medical aspects of V.A. care was legal. FFRF v. Nicholson, 469 F. Supp. 2d 609 (W.D. Wis. 2007). Although taxpayer standing was not challenged initially, the V.A. raised standing in the 7th Circuit following Hein. “We will be duking it out for the first time there,” said Gaynor. “This is as solid a case as we can bring showing the difference between a major administration program and a minor executive discretionary program,” she said. “If the 7th Circuit accepts this program, the landscape changes drastically,” she said. It touches on an important unresolved issue, according to Gilman. “If a federal agency is spending statutory appropriations for social welfare programs and using their executive discretion to funnel some portion of the money to faith-based groups, is this executive or congressional, i.e. Hein or Flast?” she asked. Sekulow said another area that may be open for standing challenges is what’s known as the “offended observer,” someone who walks past a monument to the Ten Commandments on the courthouse steps and sues. “Offended-observer standing is clearly in the sights of the Supreme Court,” Sekulow said. One such challenge is pending before the 11th Circuit, Rabinowitz v. Anderson, No. 07-14183HH. A Miami voter objected to religious symbols and an anti-abortion banner at a Catholic church used as a polling place. The district judge rejected the challenge, saying that although the plaintiff may feel discomfort when viewing religious symbols, that does not equate to a constitutional violation. “The Florida case is beyond the political line,” said Roy Speckhardt, executive director of the American Humanist Association, in Washington. He cited a sign that called for an end to abortion and a sign near the voting booth that said “God is watching you.” Whether or not the 11th Circuit case succeeds, “we are going to pursue a challenge to [churches as polling places] somewhere else, immediately after this off-season election,” he said. The few endorsement-of-religion cases decided since Hein have not necessarily cleared the air. A hotly contested 5th Circuit case split the court, 8-7, in a challenge by taxpayers and several parents who objected to Tangipahoa Parish School Board in Louisiana starting a variety of events with prayer. A three-judge panel initially upheld an injunction against the practice and found, without being asked, that the plaintiffs had standing. But the en banc court sought briefs on the standing question one week after Hein, and then avoided the taxpayer question. The slim majority sent the case back because there was no showing that the plaintiffs attended the meetings that included prayers, even though the fact was conceded by the board. Doe v. Tangipahoa Parish School Board, 494 F.3d 494 (5th Cir. 2007). “An interesting issue, not fully discussed in Tangipahoa, is whether the plaintiffs could have alleged taxpayer standing,” said Gilman. “The school board seems to have both executive and legislative functions, and the challenged practice isn’t really about expenditures. So, would the case be like Flast or like Hein?”

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