Hein v. Freedom From Religion Foundation: Sue the Bastards (or Maybe Not)

Way back in 1968, the Supreme Court was asked to decide whether taxpayers had standing to sue the government for throwing their money around in unconstitutional ways.

The case, Flast v. Cohen, was brought by a woman who objected to federal financing of textbooks for parochial schools. Apparently, the schools in question had been dipping into the government’s collection plate rather than their own. Even though those particular textbooks were on secular, rather than religious, subjects, Flast believed that the expenditure still violated the First Amendment.

The Court’s opinion was authored by Chief Justice Earl Warren, a secular saint if there ever was one. He wrote that a taxpayer could, indeed, prevail in a lawsuit—but only if two conditions were met.

First of all, the suit had to establish a logical link between the taxpayer him- or herself, as a taxpayer, and a legislative act that the taxpayer believed was unconstitutional. For all intents and purposes this link could be established only if the act in question fell specifically under Congress’s power to tax and spend, as stated in Article 1, Section 8 of the Constitution. In other words, a person could sue about the expenditure of his or her tax dollars only if it could be shown that Congress had earmarked those taxes for an explicit use.

Secondly, the taxpayer could claim that the act was unconstitutional only by demonstrating that the funding in question exceeded specific constitutional limitations on Congress’s power to tax and spend.

In Flast, the Court found that both conditions were met. The taxpayer was able to establish a link between herself and the legislative act by showing that the allocation of her money fell under Congress’s power to provide for the “General Welfare.” The expenditures exceeded Congress’s power to tax and spend because the bestowal of public monies on religious institutions flouted the First Amendment’s Establishment Clause. Flast, and all other taxpayers like her, had suffered harm; she had been ripped off by god's representatives posing as her own.

As time passed and the Court grew more and more conservative, the taxpayers’ right to sue became narrower and narrower. In 1981, for example, another Establishment Clause case was brought, this time by Americans United for Separation of Church and State. It seems that the Department of Defense, as part of a series of cutbacks, had closed a military hospital in Valley Forge. The Department of Health, Education, and Welfare decided—in an act of Christian charity, no doubt—to donate part of the land to the Valley Forge Christian College. This pilferage of public property improved neither the common citizens' health, nor their education, nor their welfare. The Court found, however, that since Congress was not directly involved in the land transfer, the public had no right to sue. Basically, the government was free to steal from us as long as the theft was not spelled out by an act of Congress.

Fast-forward to last Friday. The Supreme Court announced that it will decide whether citizens can challenge the spending of tax money by Bush’s office of faith-based initiatives. The case, Hein v. Freedom From Religion Foundation, et al., will be heard in February.

Of course, I would love the FFRF to succeed. Bush and his theocratic cronies are distributing our hard-earned bucks to the supernatural charlatans. That’s clearly a violation of the First Amendment. There’s no separation of church and state when their hands are joined in picking our pockets.

But I predict that the good guys will be losers in this effort; we don’t have a prayer. The money was not allocated directly by Congress to the White House’s Faith-Bait effort. Rather, the President was given a gift of our cash to use at his discretion—or lack of same. I doubt that a conservative Court will decide that the FFRF has standing to speak for you, me, and all the rest of the people who feel cheated by our nation’s churches. Most likely, the inactivist majority of judges will shrug their robed shoulders, while the pirates of religion continue to thank their bandit god for Republican appointments.