Hein v. Freedom from Religion

Freedom from Religion (FFR) sued the Secretary of Labor, complaining about the use of money appropriated by Congress under Article I, section 8, the taxing power, to fund conferences that various executive-branch agencies hold to promote President Bush’s “Faith-Based and Community Initiatives.” The President created this program through a series of executive orders. FFR alleged that the conferences, which purport to promote both secular and religious activity, actually function as propaganda vehicles for religion, and therefore violate the establishment clause of the First Amendment (which requires the government to remain neutral between religion and irreligion). The district court dismissed the case, holding that FFR did not have standing to sue, as taxpayers, for the use of funds appropriated by Congress but spent by the President.

The Seventh Circuit Court of Appeals reversed. It reasoned that 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.

Question Presented:

Whether taxpayers have standing under Article III of the Constitution to challenge on Establishment Clause grounds the actions of Executive Branch officials pursuant to an Executive Order, where the plaintiffs challenge no Act of Congress, the Executive Branch actions at issue are financed only indirectly through general appropriations, and no funds are disbursed to any entities or individuals outside the government.

Decision under Review:

Freedom From Religion Foundation v. Chao

denial of petition for rehearing en banc

Supreme Court Opinion