Written by Don Byrd
In two separate recent decisions, the 7th and 6th Circuit Appeals Courts have ruled citizens lack standing to challenge government’s use of funds on religious freedom grounds. Using the Supreme Court’s decision in Hein, these courts are finding little room for taxpayers to assert the First Amendment against distribution of public funds to religious organizations.
The 6th Circuit rejected a lawsuit questioning the federal government’s investment in AIG, citing the company’s offering of Sharia-based financial products
It was only through “executive discretion” that the congressional appropriations were used for arguably religious purposes. The taxpayer-plaintiff lacked standing under those circumstances, which were identical in all relevant respects to those presented by Plaintiff’s challenge to the [Emergency Economic Stabilization Act of 2008]. Neither the EESA nor any reasonable inference from its historical context suggest that Congress knew, or much less intended, that TARP funds might support the marketing and sales of [Sharia-compliant financing] products.
The 7th Circuit threw out a challenge (pdf) to the State of Illinois’ grant of $20,000 to the Bald Knob Cross religious attraction site.
Sherman’s allegations do not fall within the narrow sliver of situations that survives Hein. Tellingly, Sherman points to no specific and binding legislative action directing that $20,000 be disbursed to Friends. It is not enough to say that Friends was “specifically selected” by the legislative leadership for the grant…
I point out these decisions not because I think they were wrongly decided, or may have survived if not for Hein, but because reading them makes clear just how firmly shut the door is to lawsuits questioning the government’s use of tax money after that decision. As many of us predicted, the ruling in Hein has done great damage to the taxpayer standing doctrine that allows for a challenge to religious promotion using taxpayer funds. But it has also practically provided a blueprint for government to fund projects which are of benefit to religion: the legislature need only appropriate block grants to be distributed by the Executive branch, and there is little room – a “narrow sliver” as the 7th Circuit decision notes – to bring n Establishment Clause challenge.
