Fanning the Flames: The Freedom Project Blog


Standing Alone

By Shawn Healy
The Supreme Court ruled 5-4 on Monday in favor of the White House Office of Faith-Based and Community Initiatives in the case Hein v. Freedom From Religion Foundation. The case itself considered the issue of taxpayer standing as it relates to Establishment Clause challenges to program's like the Bush Administration's faith-based initiatives stemming solely from an executive order and not congressional statute. Had the Court ruled for the Freedom from Religion Foundation, taxpayers would have standing to sue on First Amendment grounds executive branch programs that violate the "no establishment" premise of the religious freedom clauses.

Prior precedent, namely the 1968 case Flast v. Cohen, permitted taxpayer challenges for congressional appropriations of tax dollars for religious purposes that may violate the Establishment Clause. Justice Samuel Alito, in an opinion joined by Chief Justice Roberts and Justice Kennedy, claimed the mere fact that executive branch allocates taxpayer dollars appropriated by Congress does not make them one in the same. Lacking any direct congressional relationship to the faith-based initiative, Alito claims that Flast's narrow exception cannot be stretched to produce an "actual case and controversy."

Justice Scalia, joined by Justice Thomas in a concurring opinion, signs on to the judgement issued by the majority, but would overturn Flast v. Cohen in the process. Scalia feels that the Supreme Court overstepped its bounds in Flast, violating the separation of powers doctrine embedded in the Constitution and specifically the defined boundaries of the judicial branch as established in Article III.

The liberal bloc of Souter, Stevens, Ginsburg, and Breyer coalesced around the minority opinion where they would extend Flast to executive branch allocations of taxpayer dollars. Souter, writing for the minority, failed to see a "distinction in either logic or precedent" from congressional appropriations or an outcome where "taxpayers have any less at stake."

The case admittedly is not among the most glamorous of the slew of First Amendment decisions forthcoming from the Court the past couple of weeks, although it does fit into a general pattern of a 5-4 majority surrounding a conservative position. The "Bong Hits" and campaign finance (more on this tomorrow) decisions stole the headlines, but all three were decided by the same five justices: Roberts, Scalia, Kennedy, Thomas, and Alito. The Bush appointees have clearly swung the Court to the right, and Justice Kennedy's position as the swing vote also trends the same direction given his more conservative orientation in comparison to his former centrist compatriot Sandra Day O'Connor.

While the Roberts Court seemingly has a mixed record on free speech after two terms, its two religion decisions have permitted greater freedom of religious expression and more entanglement between government and faith-based organizations. These two decisions seemingly stand as open invitations for additional challenges to the Warren Court and its successors to chip away at the so-called "wall of separation" between church and state.


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Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at