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High court hears case of faith-based funding

Atheists argue for the right to sue government

Annie Laurie Gaylor and Dan Barker, copresidents of Freedom From Religion Foundation, on their Wisconsin radio show. (Morry Gash/Associated Press)

WASHINGTON -- An atheist group that alleges President Bush's faith-based initiative is unconstitutional asked the Supreme Court yesterday to allow taxpayers to sue the administration for giving federal money to religious groups, but the White House argued that taxpayers shouldn't be allowed to sue the government over such funding even if religion is involved in the matter.

While the case centered on the technical issue of a taxpayer's right to sue, it has focused attention at the highest levels of government on one of the most controversial actions taken by Bush: an executive order funneling billions of taxpayer dollars to faith-based aid groups, a key part of his political agenda.

Bush signed the order creating the Office of Faith-Based Initiatives during his first term after Congress rejected the proposal. Lawmakers in both parties questioned whether the program violated the separation of church and state.

The Wisconsin-based Freedom From Religion Foundation, which brought the suit, argued in its brief to the court that Bush used taxpayer funds to hold a series of meetings around the country that "were designed to give a preference to religious organizations with respect to awards of federal grants."

The group said that violates the separation of church and state. The group said it had the right to sue, citing a 1968 Supreme Court ruling stating that taxpayers can challenge the government if it used tax money to favor one religion over another.

The atheist group won a major victory when a federal court ruled last year that the group's case against the administration could proceed. The White House asked the Supreme Court to block the case on grounds that the government would be unable to function if taxpayers were allowed to sue over its spending decisions. The Supreme Court heard the case yesterday, and is expected to rule on it this spring.

Last October, the Globe published a series of articles examining faith-based organizations in the context of foreign aid contracting at the US Agency for International Development, or USAID, which allocates funds to aid groups working overseas. The Globe found that the percentage of US foreign aid funds going to faith-based groups had nearly doubled under President Bush, from 10.5 percent in 2001 to 19.9 percent in 2005. In total, the Globe identified $1.7 billion going to faith-based organizations -- 98 percent of which went to Christian groups.

In its reporting for the series, the Globe witnessed one such conference in Harrisburg, Pa., in February 2006, where White House lawyers and representatives of several federal faith-based offices, including USAID, stressed that the purpose of the conference was to convey the White House's support for funding religious organizations and providing detailed guidance to religious groups on how to properly write grants, win federal funding, and follow the rules for spending taxpayer dollars.

During yesterday's hearing, US Solicitor General Paul Clement, representing the Bush administration, told the justices that taxpayers don't have the right to sue the government over such questions of government spending, even when it comes to faith-based spending. Clement argued that taxpayers could not sue even if the government funded its own church or if it built a church next to Plymouth Rock to conduct worship services in the Puritan tradition.

But Justice Stephen Breyer attacked Clement's premise.

"All over America, they build churches dedicated to one religion," Breyer said. If Congress passed a statute requiring every city, town, and hamlet to have "a minister, a government minister, a government church, and dedicated to the proposition that this particular sect is the true sect, and they pass a statute like that, nobody could challenge it?" Breyer asked.

"Horrible hypothetical," Clement answered.

Breyer: "Is that what you're saying, then?"

"I think the bottom line is that there would not be taxpayer standing," Clement said. "Plenty of people could probably challenge that."

Chief Justice John G. Roberts suggested that Clement's position is that taxpayers couldn't sue over the issue of government spending but can challenge the government on the basis of religious discrimination. Then, Roberts questioned the atheists' position: "I don't understand under your theory why any taxpayer couldn't sue our marshal for saying, 'God save this honorable court?' "

Andrew J. Pincus, representing the Freedom From Religion Foundation, answered that a lawsuit in that situation would be groundless because marshals aren't violating the separation between church and state. For example, Pincus said, if a president makes a trip to promote religion in America , that would not be a violation, but spending taxpayer money on conferences promoting the faith-based initiative is a violation because the program was created specifically for directing federal grants to religious groups instead of secular ones.

"The entire conference program was a program to further religion over nonreligion," Pincus said.