Hein v. Freedom from Religion Found., Inc.

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In Hein v. Freedom from Religion Found., Inc., 2007 U.S. LEXIS 8512 (June 25, 2007), the U.S. Supreme Court heard a challenge to the constitutionality of the Bush Administration's funding of faith-based programs. President George W. Bush's new appointee, Justice Sam Alito, wrote the plurality decision that was joined by Chief Justice John Roberts and Justice Anthony Kennedy. Justices Antonin Scalia and Clarence Thomas joined the verdict, but would have gone further in directly overruling the precedent of Flast v. Cohen, 392 U.S. 83, 102 (1968).

This decision did not rule on the constitutionality of federal funding for faith-based programs, but instead dismissed the case on the grounds that the Freedom from Religion foundation had insufficient grounds on which to challenge the programs as none of its members were directly affected. Justice Alito cited separation of powers as an additional reason for dismissal for lack of standing.

Faith-based programs were first proposed in 2001, and now $2.1 billion a year flows to religious groups to provide community services such as teaching children, training released prisoners and rehabilitating drug addicts. This is about 11% of the $19.7 billion awarded to all community groups by the federal government. Religion cannot be part of the federally supported programs, but groups receiving the money are religious and some of these groups say grace before eating a federally funded meal.[1]

“Government can't fund preaching or proselytizing, but it can fund the good social work being done by religious organizations,” observed Jim Towey, who serves as the director of the Office of Faith-Based and Community Initiatives.[2]

The Freedom from Religion Foundation, Inc., which describes itself as the largest group of atheists and agnostics in North America, sued to stop Bush’s faith-based program. The group based its legal standing on the mere fact that some of its members pay federal taxes. Such “taxpayer standing” has been used in the past to allow almost anyone to invoke the Establishment Clause of the First Amendment to interfere with a governmental accommodation of religion.

The district court dismissed this lawsuit, finding the legal standing to be insufficient. After all, this group was not directly harmed by these programs, which is ordinarily the requirement for legal standing in a lawsuit. Merely paying federal taxes should not entitle anyone to sue under the Establishment Clause to challenge any program.

Justice Alito held for the Court that future challenges under the Establishment Clause will be allowed only if brought against a specific congressional expenditure, rather than an expenditure of discretionary funds by the Executive Branch. Justices Scalia and Thomas would have gone further and eliminated taxpayer standing for challenges to congressional expenditures also.

Within five months of this decision, it was already cited by 41 other opinions, putting this on track to become one of the most influential decisions of the decade.


  1. https://www.usatoday.com/news/nation/2006-03-09-faith-based_x.htm
  2. Id.