Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
An Uncertain Victory for the Faith-Based Initiative
The U.S. Supreme Court has turned away a challenge to the Faith-Based Initiative from the Freedom from Religion Foundation (FRF). In so doing, the high court may have also forestalled an entire class of such cases. But as with so many recent decisions from the Roberts Court, the majority was 5-4, and even that majority was assembled from a plurality opinion by three justices, with two others concurring.
The FRF objected to the invitation to religious groups to attend White House-sponsored conferences on nonprofit funding. In its view, such invitations violated the First Amendment’s prohibition against establishment of religion. The conferences were organized by the White House Office of Faith-Based and Community Initiatives and were paid for with general-appropriation funds for the executive branch.
Generally speaking, a taxpayer or an organization may not sue the government for the way it spends money. The right to come before the court (“standing”) to sue the government is only granted when a congressional statute or appropriation expressly directs government to act or to spend funds in a particular way, and then only if the plaintiff can claim some legal injury. Justice Alito, who wrote the majority opinion, argued that the FRF did not have standing.
For dissenting Justices Souter, Stevens, Ginsburg and Breyer, the case should have proceeded because it raised a church-state separation question. Hard though it is to demonstrate personal injury in such a case, Souter argued that it was no less difficult to prove injury in cases involving racial or other discrimination. “These injuries,” he wrote, “are no more concrete than seeing one’s tax dollars spent on religion, but we have recognized each one as enough for standing.”
“When government spends money for religious purposes,” Souter continued, “a taxpayer’s injury is serious and concrete enough to be judicially cognizable.” The Founders held individual religious liberty best protected when government is “stripped of all power to tax, to support, or otherwise to assist any or all religions,” Souter insisted, finding this view reinforced by the contemporary recognition that “favoritism for religion” tells “nonadherents” they are “not full members of the political community.”
The Faith-Based Initiative prevailed. But liberal individualism still reads the Constitution with disarming confidence. For Justice Souter, the Founders’ only goal was individual religious liberty—small matter that those same Founders also upheld state-regulated religious establishments until Massachusetts extinguished the last establishment in 1833. Misreading the Establishment Clause, the Court’s dissenters frame the Faith-Based Initiative as “favoritism” and solemnly condemn it in the au courant language of “inclusion.”
Three principles guide the Faith-Based Initiative. First and foremost is care for society’s weakest members. Second, government, poorly fitted to provide such care, should assist those social organs, religious ones prominent among them, which are by their very character equipped to provide it. Third, when government funds nongovernmental service organizations through competitive grants, it must not discriminate among potential recipients on the basis of their viewpoint or “confessions.” Equal treatment among viewpoints, not favoritism towards religion, is the goal.
The American political climate is not fixed. Progressive and libertarian visions ebb and flow. But liberal individualism is still the air we breathe. Judge Alito did not address the merits of the FRF’s argument about church and state, so we do not know how he may have defended the Faith-Based Initiative. One thing is certain, however: a Christian pluralist view of human dignity and the relationship of government and society competes at some considerable disadvantage in this American atmosphere.
—Timothy Sherratt, Professor of Political Studies
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”