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Published in Print: January 25, 2006, as Legal Challenge to Faith-Based Initiative Is Revived

Legal Challenge to Faith-Based Initiative Is Revived

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A federal appeals court has reinstated a lawsuit that challenges activities of the centers for faith-based initiatives in the Department of Education and other U.S. agencies.

The centers are a key part of the Bush administration’s push to promote the inclusion of religious organizations in government social-services programs. President Bush used executive orders to introduce the central elements of that effort after Congress balked at his initiative in 2001.

On Jan. 13, a three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, ruled 2-1 that the Freedom From Religion Foundation has standing to challenge activities of the White House Office of Faith-based and Community Initiatives and the centers in various departments.

The Madison, Wis.-based foundation, representing its members as taxpayers, cited a series of government-funded conferences aimed at helping representatives of religious and community organizations apply for government grants. The suit contends that the conferences promote religious organizations over secular groups.

A federal district judge in Madison ruled that the taxpayers lacked standing to sue over the conferences because they couldn’t identify a specific government spending decision that had harmed them.

But the 7th Circuit panel ruled that taxpayers may sue over a violation of the First Amendment’s prohibition on a government establishment of religion, even if Congress hasn’t specifically allocated money for the challenged program or activity.

“Taxpayers have standing to challenge an executive-branch program, alleged to promote religion, that is financed by a congressional appropriation, even if the program was created entirely within the executive branch, as by presidential executive order,” U.S. Circuit Judge Richard A. Posner wrote in the opinion.

The court sent the case back to the U.S. District Court in Madison for the trial judge to consider the merits of the foundation’s claims.

The federal government was reviewing the decision, a spokesman for the Department of Justice said last week.

‘Not Entirely Frivolous’

Despite reinstating the lawsuit, Judge Posner expressed skepticism about the group’s “wordy, vague, and in places frivolous” complaint, which alleged that President Bush had violated the establishment clause by extolling the power of faith-based groups to aid in social services. Judge Posner noted that the district judge had rejected the suit’s challenge of a remark by then-Secretary of Education Rod Paige about “the power of faith to change lives.” That part of the ruling was not appealed.

But Judge Posner wrote in the opinion, “the complaint is not entirely frivolous, for it portrays the conferences organized by the various [faith-based] centers as propaganda vehicles for religion, and should this be proved one could not dismiss the possibility that the defendants are violating the establishment clause.”

Annie Laurie Gaylor, the Freedom From Religion Foundation’s co-founder, said in an interview that the ruling was a victory not just for her organization, “but for citizens for the right to contest unconstitutional actions by the executive branch.”

Ms. Gaylor said the group would now continue its legal campaign to “eradicate” the Bush administration’s faith-based initiative.

“The government is not a national endowment for churches and faith-based organizations … that are proselytizing with tax dollars,” she said.

Vol. 25, Issue 20, Page 25

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