Hein v. Freedom from Religion Foundation


Do taxpayers have the ability to challenge the actions of the Executive Branch based on the Establishment Clause of the First Amendment, which prohibits the Legislative Branch from making laws violating the freedom of religion?

Oral argument: 
February 28, 2007

In 2001, President Bush announced the Faith Based and Community Initiatives plan, which uses funds appropriated by Congress to establish a series of conferences designed to coordinate and support both religious and secular community organizations. The Freedom from Religion Foundation, represented by taxpayer plaintiffs, challenged this program on the basis that it violated the Establishment Clause of the First Amendment, but the suit was dismissed for lack of standing. The Seventh Circuit Court of Appeals reversed the district court, holding that various Supreme Court precedents establish that the Foundation did have standing. The government has appealed the case to the Supreme Court, arguing that the Foundation’s inability to identify a particular Congressional appropriation removes the programs from the Establishment Clause prohibition on Congressional action supporting religion.

Questions as Framed for the Court by the Parties 

Whether taxpayers have standing under Article III of the Constitution to challenge on Establishment Clause grounds the actions of the Executive Branch pursuant to an Executive Order, where the plaintiffs challenge no Act of Congress, the Executive Branch actions at issue are financed only indirectly through general appropriations, and no funds are disbursed to any entities or individuals outside the government.


In 2004, the Freedom from Religion Foundation (“the Foundation”), represented by three taxpayer plaintiffs, filed suit in Federal District Court, challenging part of President Bush’s Faith Based and Community Initiatives (“FBCI”) plan. See Freedom from Religion, Inc. v. Chao, 433 F.3d 989, 993 (7th Cir. 2006). The particular initiative challenged provides for government sponsored conferences designed to promote both secular and religious social service organizations. Id. These programs are funded by general Congressional appropriations; no specific act of Congress authorizes the program or its funding. Id. Both federal agencies and private organizations participate in the conferences. Id.

According to the Foundation, the conferences are simply “propaganda vehicles for religion” and therefore violate the Establishment Clause of the First Amendment of the Constitution. Id at 994. The Establishment Clause, by its terms, applies only to Congress, but the Foundation points out that, even though the project was proposed by the Executive Branch, the funds for these conferences were appropriated by Congress under the authority granted by Article 1, Section 8 of the Constitution. Id at 993. Therefore, the Foundation argues, the conferences violate the Establishment Clause. Id.

The district court judge dismissed the Foundation’s complaint on the ground that the taxpayers lacked standing to bring the suit. Id. The Seventh Circuit Court of Appeals, however, held that the taxpayers did have standing. Id. at 996–97. The Seventh Circuit then denied an appeal by the government for re-hearing of the case by the full panel, stating that further consideration by the whole panel would merely be inefficient and that the Supreme Court should investigate the case. See Freedom from Religion v. Chao, 447 F.3d 988 (7th Cir. 2006). After this denial, the government petitioned for, and was granted, a writ of certiorari to appeal the case to the Supreme Court. See Hein v. Freedom from Religion, 127 S.Ct. 722 (2006).


The standing requirements in Federal Courts perform an important gate-keeping function in preventing those courts from exceeding their Constitutional authority under the Article III cases and controversies limitation. See Freedom from Religion, 433 F.3d at 990. In the past, standing could only be granted when the injury done to the plaintiff would have supported a common law suit in the Eighteenth Century. See id. In fact, the Supreme Court in 1952 rejected taxpayer status as insufficient for establishing standing to challenge the actions of the Federal government in Federal court. See Doremus v. Board of Education, 342 U.S. 429, 433–34 (1952). The injury done to taxpayers by illegal government actions was judged to be too attenuated (or even non-existent) to support their standing to challenge the action. See Freedom from Religion, 433 F.3d at 990.

However, in 1968, the Supreme Court upheld the standing of a group of taxpayers to challenge the appropriation of Federal funds that were to be used to purchase educational materials for parochial schools. See Flast v. Cohen, 392 U.S. 83, 88 (1968). The taxpayers argued that such an appropriation, conducted under Article 1, Section 8 of the Constitution, violated the Establishment Clause of the First Amendment. See id. at 85–86. According to the Court, the special interest of citizens in church-state separation, the need for judicial scrutiny of Congressional action, and the “nexus” between the appropriations of funds and the Establishment Clause violation provided a sufficient basis for standing. See id. at 115–16.

Twenty years later, the Court revisited this issue in Bowen v. Kendrick, in which the Court also upheld standing for the taxpayer plaintiffs. 487 U.S. 589, 618–20 (1988). Kendrick involved the Adolescent Family Life Act, which provided grants to nonprofit organizations for the purpose of addressing the issue of teenage pregnancy. See id. at 593–94. While the statute itself made no mention of supplying these funds to religious organizations, the Executive Branch, in applying the Act, had done so. See id. at 597. The taxpayer plaintiffs challenged these grants as violating the Establishment Clause. See id. at 593. The Court, while remanding the case for further consideration on the merits, noted that under Flast and other precedent, the plaintiffs did have standing to challenge the Act as applied. See id. at 618–20.

A further important case in this area of jurisprudence is Valley Forge Christian College v. Americans United for the Separation of Church and State. 454 U.S. 464 (1982). In that case, the taxpayer plaintiffs challenged the Department of Health, Education, and Welfare’s donation of an abandoned army hospital to a religious organization. See id. at 467–69. The Court denied standing to the taxpayers, holding that in order for taxpayers basing their standing on their taxpayer status to challenge a Congressional action, that action must have been taken pursuant to Congress’s power under Article 1, Section 8 and not some other Constitutional provision. See id. at 480, 488.

Despite these decisions, the district court determined that the Foundation lacked standing to challenge the Faith Based Community Initiatives program. See Freedom from Religion, 433 F.3d at 990. The Seventh Circuit Court of Appeals, however, reversed the district court’s standing decision, holding that under Flast and Kendrick the taxpayers clearly had standing to challenge the program. See id. at 996–67. According to the Court of Appeals, the primary difference between the Foundation’s challenge and the previous cases is simply that there was no specific statutory program relating to the Initiatives, as only generally appropriated funds were used. See id. at 994. The Court held that this difference was not controlling, and that all that is necessary for the challenge is the fact that the expenditures by the Executive of funds were appropriated by Congress. See id. at 994–95.

The Government’s Argument

The government bases its argument on the “first principle” of standing doctrine, which requires that the plaintiff demonstrate some injury as a result of the challenged action. See Petition for Certiorari at 9–10. According to the government, the Supreme Court has traditionally denied standing as a result of taxpayer status. See id. at 10. The injury caused to taxpayers as a result of unconstitutional appropriations is “’comparatively minute and indeterminable.’” See id. at 10 (quoting Frothingham v. Mellon, 262 U.S. 447, 487 (1923)). Taxpayer status, therefore, is not a sufficient independent source of standing. See id. at 9–11.

The government further argues that Flast, the case upon which the Foundation and Court of Appeals reasoning rests, does not serve to give the Foundation members standing. See id. at 12. The Flast rule, according to the government, is only a narrow exception to traditional standing doctrine and not a fundamental change in the doctrine. See id. at 12–13. Expanding the holding of that case to cover the Foundation’s challenge would “loose[n] taxpayer standing from its constitutional and historical moorings.” Id. at 19. Unlike the Congressional action at issue in Flast, the Initiatives have not cost the taxpayers any additional money in taxes, nor have any funds been disbursed directly to religious organizations. See id. at 20. Therefore, the Foundation’s complaint is not the specific type of “historical evil” that was at the heart of Flast. Id. at 20.

In addition to this historical argument, the government makes two more formalistic arguments for why Flast should not apply. See id. at 15–19. First, the government contends that Flast is only applicable where the challenge is directed at congressional power under Article 1, Section 8. See id. at 15. The Foundation’s complaint, however, is challenging a purely Executive action that is not the result of any particular congressional action. See id. The mere fact that these actions of Executive branch officials are funded by general appropriations does not transform an Executive action into a Congressional one; therefore, the Flast expansion to traditional standing requirements does not apply. See id. at 15–16.

The second argument revolves around a factual distinction between the FBCI and the programs in Flast and Kendrick. See id. at 16. Both of the latter cases involved disbursements of government funds, and therefore taxpayer money, to religious organizations. See id. The FBCI, however, only utilize Federal funds in the creation of conferences. See id. Therefore, the supposed injury to the taxpayers is arguably insufficient to support the Foundation’s standing, as there is no “concrete congressional extraction and disbursement of funds that [gave] rise to Article III standing under Flast.” Id. at 19.

The Foundation’s Argument

The Foundation’s standing argument is based on what are, according to them, straightforward applications of Flast and Kendrick to the present case. Brief in Opposition at 3, 5. The Foundation essentially agrees with the Seventh Circuit’s reading of these cases that places the Foundation’s challenge squarely within their holdings. See Freedom from Religion, 433 F.3d at 996–97.

According to the Foundation, Flast grants standing to taxpayers based on taxpayer status to challenge any congressional appropriation that is in violation of the Establishment Clause. See Brief in Opposition at 4. The Foundation contends that the interest of taxpayers in not having their tax money used in violation of the Establishment Clause is sufficient to generate the injury required for standing. See id. Standing under Flast, therefore, only requires that the funding for the alleged violation originated from Congress and was later used for a “constitutionally proscribed activity.” Id.

Furthermore, the Foundation challenges the government’s claim that the party challenging a government action must be able to point to a specific appropriation by Congress. See id at 5. Under Flast and Kendrick, the Foundation points out, even if the original appropriation was facially valid under the Constitution, taxpayers have standing to challenge an Executive Branch action that violates the Establishment Clause. See id. Congress need not be directly responsible for the violation. See id. at 7. The Establishment Clause, therefore, acts as a restriction not only on Congress directly, but on the Federal government as a whole. See id. Thus, the fact that the Foundation cannot identify a particular Congressional action that violated the Establishment Clause arguably does not preclude them from having standing. See id. at 7–9.


President Bush has been a proponent of “Faith Based Initiatives” since the earliest days of his presidency. See Barbara Bradley Hagerty, “White House Increases Faith-Based Grants,” NPR.org, March 9, 2006. Supporters of these initiatives say that they reverse a long trend of anti-religious discrimination through the distribution of federal funds. See id. Those supporters view the initiatives as releasing previously forbidden funds to organizations that are vital for community support. See id.

Opponents, such as the Foundation, however, say that the programs impermissibly promote religious organizations at the expense of secular ones. See Amanda Paulson, “A Tighter Rein on Faith-based Initiatives,” Christian Science Monitor, June 12, 2006. Opponents see problems such as the exclusion of non-religious groups and potential hiring discrimination as a result of the initiatives. See Hagerty, “White House Increases.” Finally, the initiatives are viewed as being counter to the Constitutional value of disentangling government from religion. See id.

The Foundation also criticizes the Faith Based and Community Initiatives plan on Constitutional grounds. See Brief in Opposition at 1. The Foundation argues that the FBCI violates the Establishment Clause of the First Amendment, which prohibits Congress from making any law “respecting an establishment of religion.” Despite the fact that the FBCI is run by the Executive Branch rather than Congress, the Foundation argues that the fact that the program is funded by Congressional tax appropriations brings the program under the First Amendment. See Brief in Opposition at 1.

The District Court did not initially decide upon the Foundation’s argument, however, as it held that the organization lacked standing to bring the case. See Freedom from Religion, 433 F.3d at 990. The District Court based this decision on the fact that the Foundation did not demonstrate that it or its members had suffered any injury as a result of the program. See id. Therefore, the judge dismissed the suit. See id.

The Seventh Circuit and the Foundation disagree. The Foundation’s argument is that the Supreme Court’s decisions in Flast v. Cohen, 392 U.S. 83 (1968) and Bowen v. Kendrick, 487 U.S. 589 (1988) conclusively demonstrate that they should have standing to sue. See Brief in Opposition at 3–4. Both of these cases involved taxpayer challenges to Congressional tax appropriations based on violations of the Establishment Clause, and the plaintiffs in both cases were established to have standing. See id. Therefore, the Foundation argues, taxpayers have standing to challenge Executive Branch uses of appropriated funds even if the appropriation itself made no mention of a religious purpose. See id. at 5–6.

The government argues that the Foundation should not have standing, as the Supreme Court has “generally rejected taxpayer status as a proper basis on which to predicate…standing.” Petition for Certiorari at 10. The government further claims that Flast is not a general loosening of these traditional standing requirements, but is rather a narrow exception that does not apply in this case. See id. at 11–12. Also, the government claims that the Foundation cannot challenge the FBCI based on Establishment Clause grounds because it cannot identify any particular appropriation or statute that violates the Clause. See id. at 14. As the FBCI is only an Executive use of generally appropriated funds, the program does not fall under the First Amendment prohibition on Congress’s establishment of religion. See id. at 14–15.


The Court’s decision in this case will have a significant effect on the ability of taxpayers to challenge Federal programs administered by the Executive Branch. If the Freedom from Religion Foundation wins, other opponents of programs such as the Faith Based and Community Initiative will be able to bring suit against the government more easily. If the government prevails, those same opponents will be hampered in bringing suit because of the difficulty in establishing the required standing to challenge the programs in court.Written by:

Richard Beaulieu


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