Reading Time: 4 minutes

I wrote about this lawsuit a couple months ago. And you can read more about it here. Basically, it begs the question of whether taxpayers have standing to sue the government when it supports religion in violation of the Establishment Clause (like with the Office of Faith-based Initiatives). The Freedom From Religion Foundation (FFRF) says that you should be able to sue as a taxpayer.

A brief history: A federal judge denied this challenge. Then, the Seventh Circuit Court of Appeals reinstated the lawsuit. Then, Bush’s people appealed that decision. Now, the Supreme Court will hear the case in three weeks, on February 28.

As Dan Barker, co-president of FFRF, says:

“If we were to be denied standing, the court would be saying no citizen has the right to challenge such violations, and that executive-branch violations are not subject to court review.”

I spoke to Dan Barker about all this– more on that in a second.

First, there are precedents to this case:

Also, many organizations have written amicus briefs supporting FFRF in this case. Even if you’re not interested in legal-ese, reading just one of them is well worth your time to gain a fuller understanding of what is going on. Here are links to friend-of-the-court briefs (PDFs):

Dan Barker kindly answered several questions about the case for me. If you have any other questions about it, feel free to leave comments. I’ll pass them along to him!

Hemant Mehta: Why did FFRF file the lawsuit?

Dan Barker: We have been taking individual faith-based lawsuits around the country, “putting out fires,” and winning most of these cases, but we thought we should try to strike at the source, at George Bush’s newly created offices of faith-based initiative in various departments. So we sued in 2004, challenging the creation of these offices plus many of the practices.

The federal judge dismissed our case on standing (not on the merits) claiming that since there was no direct congressional appropriation, we had no right to sue as taxpayers. (The only people who would have a right to sue would be someone directly injured.)

The 7th Circuit Court of Appeals overturned that decision, and then refused an “en banc” rehearing of the case. So at this point, we are winning, and do have the right to continue with our lawsuit.

But the US Government petitioned the US Supreme Court, asking it to reverse the 7th Circuit decision and deny our taxpayer standing to sue. We did not want the court to “grant cert” (to take the case), but here we are.

HM: Who is opposing your side?

DB: Besides the US Government, friend-of-the-court briefs have been filed by Pat Robertson’s ACLJ, by Judge Roy Moore’s group, by 11 states (led by Indiana) and some other religious groups. Jay Sekulow of the ACLJ issued a press release when their brief was filed, claiming that there should be no more “special rights for atheists.”

HM: Do you think FFRF will win this case?

DB: Yes, we do. There is no logical or legal reason why our standing should not be upheld.

HM: What significance would a victory have?

DB: A victory, depending on how the court phrases it, can:

      1) Keep things just as they are, affirming the Flast decision, allowing us (and anyone else) to proceed with taxpayer challenges to violations of the Establishment Clause.


      2) Reaffirm our standing to sue, but:

        a) Strengthen Flast, letting more cases through


        b) Weaken Flast, limiting the situations where cases can be taken

In any case, a victory would reaffirm the independence and fairness of the judiciary.

HM: What ramifications would a loss have?

DB: It would be harder to challenge Establishment Clause violations, virtually impossible to get at the Executive Branch. Lawsuits could still proceed, but not under taxpayer standing… they would need a directly “injured” party, such as a group that was denied money, or a government worker who experienced discrimination. We could still sue over individual grants, assuming we could find a properly “injured” plaintiff.

Someday, one of YOU may want to challenge the government, and you should have the right to “take it to the Supreme Court.”

HM: Is there anything atheists not directly involved with the case can do to help you out?

DB: Yes, publicity. Ask your paper to cover the Feb. 28 hearing. Write a
letter to the editor, or an op-ed piece about the issue. Spread the issue by email. Voice your support for the First Amendment.

[tags]atheist, atheism, Hein v. Freedom From Religion Foundation, government, religion, Establishment Clause, Office of Faith-based Initiatives, Seventh Circuit Court of Appeals, George W. Bush, Supreme Court, Dan Barker, Freedom From Religion Foundation, Flast v. Cohen, Bowen v. Kendrick, Valley Forge Christian College v. Americans United for Separation of Church & State, ACLU, Joint Baptist Convention, People for the American Way, Anti-Defamation League, Center for Inquiry, Center for Secular Humanism, American Atheists, FFRF, Pat Robertson, ACLJ, Roy Moore, Jay Sekulow, Christianity[/tags]