Hein v. Freedom From Religion Foundation, Inc.

1. Hein v. Freedom From Religion Foundation, Inc. Beyond the Standing Issue and the Future of Faith-Based and Community Initiatives

2. Summary of Paper • PART I • Summary FBCI • Summary of Hein Case • Short history of Establishment Clause • The Lemon Test • Tests other than Lemon • Hein case on the Merits • PART II • The Obama Presidency and the continuance of FBCI • Differences between Bush and Obama’s Policies toward FBCI

3. Thesis Statement: • If Faith-Based and Community Initiatives are not able to be challenged generally in the wake of Hein v. Freedom From Religion Foundation, Inc. for want of standing, are they able to be challenged on an individual basis and by what standard would they be analyzed against? • What does this mean for the future of Faith-Based and Community Initiatives?

4. Procedural History

5. PART I • Executive Order 13199, Establishment of White House Office of Faith-Based and Community Initiatives, January 29, 2001 • Purpose of new office was to ensure that private and charitable community groups, including religious ones…have the fullest opportunity permitted by law to compete on a level playing field, so long as they achieve valid public purposes.

6. PART I • Executive Order 13279, Equal Protection of the Laws for Faith-Based and Community Organizations, December 22, 2002 • The Federal Govt must implement Federal programs in accordance with the Establishment Clause and the Free Exercise Clause of the First Amendment. Therefore, organizations that engage in inherently religious activities, such as worship, religious instruction, and proselytization, must offer those services separately in time or location from any programs or services supported with direct Federal financial assistance…

7. Hein v. Freedom From Religion Foundation • Plurality decision with Justice Alito writing the lead opinion. • At issue was taxpayer standing to bring an Establishment Clause challenge to Executive Branch appropriations • Court discussed Flast v. Cohen, 392 U.S. 83 (1968)

8. Hein v. Freedom From Religion Foundation • Flast v. Cohen • Created a narrow exception to the rule that taxpayers do not have standing generally under Frothingham v. Mellon, 262 U.S. 447 (1923) • Justice Warren’s decision held that federal taxpayers do have standing in Establishment Clause challenges to congressional expenditures

9. Elements of Standing • Redressability • It must be ‘likely’ as opposed to merely ‘speculative’ that the injury will be ‘redressed by a favorable decision.’ • Lujan, at 561

10. Elements of Standing • Causation • A causal connection between the injury and the conduct complained of • The injury has to be ‘fairly traceable’ to the challenged action of the Defendant and • Not the result of the independent action of some third part not before the court. • Lujan, at 560

11. Elements of Standing • Injury in Fact • An invasion of a legally protected interest which is • (a) concrete and particularized, and • (b) actual or imminent, not conjectural or hypothetical. • Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)

12. The Flast Exception • A taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I § 8 • A taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art I § 8

13. Back to Hein v. FFRF • FBCI are supported by lump sum Executive Branch appropriations and not by the taxing and spending power of Congress • Court found this to be the distinguishing factor from Flast • Congress did not specifically authorize the use of federal funds • Held that the 7th Circuit applied Flast too broadly

14. Back to Hein v. FFRF • Justice Alito’s Opinion claims to leave Flast undisturbed • Some commentators suggest that Flast should be overturned completely • But would this leave Establishment Clause claims non-justicible?

15. Back to Hein v. FFRF • What does this mean for the future of FBCI? • Are FBCI now shielded from Judicial Review? • Does this mean that Executive Branch expenditures do not have to be held to Constitutional limitations?

16. Justice Souter’s Dissent • Justices Stevens, Ginsburg and Breyer joined • Finds no difference between legislative and executive branch spending decisions • The reach of the Constitution and First Amendment must include all branches of Government

17. Hein on the Merits • The Lemon Test • Is there a Secular legislative purpose? • Primary Effect? • Argue that the primary effect of FBCI are to advance religion and the Charities receiving the money are doing just that • Discriminatory Hiring based on religion • Excessive Entanglement? • FBCI offices in all Human Services Departments of the Federal Government

18. A Way Around Hein? • Moeller v. Bradford County, 2006 WL 319288 (2006) • Plaintiffs are taxpayers and an inmate who was a participant in the program • Coercion Test applied • Middle District of Pennsylvania found inmate Plaintiff did have standing • (This case cites to the 7th Circuit decision in Hein)

19. A Way Around Hein? • Americans United for Separation of Church and State v. Prison Fellowship Ministries, Inc., 509 F.3d 406 (8th Cir. 2007) • Advocacy group and affected prison inmates are Plaintiffs • All possessed standing and the funding did constitute an endorsement of religion • Endorsement Test

20. Obama Presidency and FBCI • Barack Obama has a much more comprehensive plan on his website than John McCain does. He has a full four page outline of his stance on FBCI. • Barack Obama would expand the Office of FBCI with an inclusion of “Guiding Principles” to respect the First Amendment.

21. Obama Presidency and FBCI • Obama has criticized President Bush’s FBCI as promoting only partisan interests and underfunding secular and faith-based non-profits who had previously been supported • Obama’s plan calls for some changes including establishing the President’s Council for Faith-Based and Neighborhood Partnerships

22. Obama Presidency and FBCI • As a community organizer and Constitutional Law Professor, President-Elect Obama has unique insight into how this program could best serve those who are in need • He has set out criteria that Faith-Based Organizations must meet in order to receive funds

23. Criteria • Can not use Federal Funds to proselytize or provide religious sectarian instruction • Can not discriminate against members in providing services • Must comply with Federal anti-discrimination laws • Religious organizations that receive federal dollars cannot discriminate in hiring

24. Criteria • Can only use taxpayer dollars on secular programs and initiatives • Must prove their efficacy and be judged based on program effectiveness. They will be expected to demonstrate proven program outcomes to continue to receive funding

25. Conclusion • Hein v. Freedom From Religion Foundation may have closed the door on Judicial Review of FBCI • Flast v. Cohen appears to remain intact at present but to what effect? • Even if FBCI were determined to offend the Establishment Clause, with the Bush Presidency coming to an end, is the point moot?