Godless (51 page)
George W. Bush changed that dynamic. He turned the tentative “charitable choice” provisions into a major federal faith-based bureaucracy. His “faith-based initiative” erased the line between church and state, encouraging all religious groups to apply for federal money without the need to set up a separate organization or pretend to be secular. One of his first acts as president was to set up the Office of Faith-Based and Community Initiatives in the White House, headed by John DiIulio. Offices in other departments followed. Since 2001, thousands of religious “charities” have sprung up, all attracted by the promise of public dollars. Many had no previous track record. Billions of tax dollars have freely flowed to undisguised religious organizations that openly laud faith to accomplish their mission. For many of these groups, social work is secondary to their primary mission of saving souls and promoting their gospel. Far too often, the provision of social services is just an excuse to proselytize to students, prisoners, patients and other needy people.
Faith Works was an explicitly Christian organization whose purpose was “to bring homeless addicts to Christ.” It ministered to recently paroled inmates, ostensibly trying to reconnect them with the outside world and find them employment. This is a worthy goal, but Faith Works’ only tools were prayer, bible study and church attendance, with the hope that the participants might meet someone in church who would give them a job. It had no certified counselors; indeed, Faith Works had no track record of accomplishment in Milwaukee. The organization’s only claim to effectiveness was that it was “faithbased.” Wisconsin’s Republican governor, Tommy Thompson, diverted hundreds of thousands of dollars of “discretionary” funds to jump-start Faith Works—funds that were given to the state via the federal Temporary Assistance for Needy Families program. Faith Works did not open its doors until after it had received huge taxpayer grants. After finding out about the program, thanks to Bush’s campaign endorsement, we sued.
I was a taxpayer plaintiff in that case, along with Annie Laurie and Anne Gaylor, as staff members of the Freedom From Religion Foundation. Gov. Thompson, a Roman Catholic, was outraged that we would challenge the program—especially since President Bush endorsed it. He vowed to resist our attempt to stop it. But Wisconsin Attorney General James Doyle (a Democrat who later became governor) advised him not to fight us. Doyle pointed out that spending public money on a private religious ministry is unconstitutional. The governor ignored his attorney general’s advice and hired expensive outside counsel to defend the state from our lawsuit. Thompson had reacted identically to two previous cases by the Foundation: our “Good Friday” and “Marriage Savers” lawsuits. Both times he lost. Doyle was right: where public money goes, public accountability should follow. Faith Works, a private religious organization, was not responsible to the government or to the people.
When we got into discovery in the Faith Works lawsuit, it became clear that this would be a slam-dunk. Scratching beneath the surface revealed that this fly-by-night religious outfit was taking tax dollars for purely sectarian purposes. Although Faith Works claimed after the fact that it was segregating public money from private donations, restricting tax dollars to the “secular” part of its work, the judge saw through this ploy.
A pitiful number of men had “graduated” from the expensive program, and trying to get figures from Faith Works on its effectiveness was like fishing in a dry lake. The group had no way to separate the funds or the program. Money is fungible. It all went to enhance ministry. We won a strong decision from the federal court. (We eventually lost a lesser complaint tacked onto that lawsuit challenging a smaller allocation through the Department of Corrections. The courts, invoking a lamentable school-voucher reasoning, decided this was “voluntary.”) Since our main victory staunched the major flow of funds, Faith Works dried up and went out of business. Without tax dollars, it was nothing.
Our Faith Works lawsuit was the first fully adjudicated victory of a challenge to George W. Bush’s faith-based initiative. Since that time, the Freedom From Religion Foundation has taken the lead in this arena, filing and winning more cases around the nation than any other state-church group.
Another memorable case involved MentorKids USA of Phoenix, Arizona, an offshoot of Watergate felon Chuck Colson’s Prison Ministry. Its stated purpose is to mentor the children of inmates, which sounds like a reasonable goal. Who would not want to help these needy kids? But it turns out that its mandatory activities included bible reading, prayer and proselytizing. The ministry was taking public money in order to bring these children and their families to Jesus Christ. MentorKids restricted its volunteer mentors to church-going evangelical Christians who signed a fundamentalist religious mission statement. A Roman Catholic contacted us, complaining that his application to become a mentor with the group was turned down because he could not in good conscience sign a statement of faith avowing that he believed in the literal six days of creation described in the book of Genesis. “Even the pope knows the earth is more than 6,000 years old!” he said.
We won this case easily. Not only was the grant to MentorKids not renewed, but this was the first time promised funds were withheld from a faith-based charity. Maddeningly, in reply to one of our motions, an attorney for the United States wrote that it is up to watchdog groups such as ours to monitor the “faith-based initiative.”
Why is there no governmental oversight of how public money is spent by these organizations and churches? Probably because there is an assumption that if it is religious, it must be good. It is assumed that we must simply trust the faith-based groups to be honest and responsible. Ironically, the separation of church and state makes the government reluctant to interfere with private religious groups. In reality, no church or religious school in the country is responsible to the public. Churches pay no taxes and file no IRS 990 forms—while all other nonprofit groups, including the Freedom From Religion Foundation, are required to provide these forms to the government to show where the money comes from and how it is spent. (Those annual 990 forms are cumbersome and time-consuming. Every penny is tracked. The forms are available to the public so you can examine what happens with the money you donate to any other nonprofit group. The Freedom From Religion Foundation has received top marks for consecutive years by Charity Navigator, which tracks and analyzes 990 forms.)
“Faith-based” religious groups want it both ways. They want public money—which includes some of
my
taxes—but they don’t want to provide public accountability. But they
should
be accountable. Why would they not want to be? Can you see the potential for abuse that such a system allows? Yes, many religious groups are honest—a few of them even refuse to take public money—but many are not and it is lawsuits like ours that prove it.
my
taxes—but they don’t want to provide public accountability. But they
should
be accountable. Why would they not want to be? Can you see the potential for abuse that such a system allows? Yes, many religious groups are honest—a few of them even refuse to take public money—but many are not and it is lawsuits like ours that prove it.
By 2004, we had won faith-based lawsuits in Montana, Arizona, Alaska and Minnesota and had cases pending in other states. We were starting to wonder why the burden for policing these religious groups had to fall on the shoulders of small organizations like ours. Wasn’t that the government’s job? Why should we be running around the country putting out fires? Why were there any fires in the first place?
We had originally hoped that our victories would be a lesson to Bush and others in the government that they should back off from throwing tax dollars at religious organizations. But the president’s faith-based program just got stronger, larger and more expensive.
Like planaria flatworms that can regrow their heads or video game warriors that never die, faith-based offices began popping up in many departments of the federal government. Education, Health and Human Services (led for a while by former governor Tommy Thompson), Housing and Urban Development, Labor, Justice, Agriculture, International Development, Homeland Security, Commerce, Small Business and Veterans Affairs all had a faith-based office. They also started appearing in many governors’ offices and even within city governments. Encouraged by the Bush administration’s active courting, they were raking in millions of dollars.
The White House and Cabinet-level faith-based offices don’t actually hand out money, but they provide services to religious organizations and sponsor massive conferences and workshops, some of which were described by the press as tantamount to religious revival services that included prayer and Christian music. Our government actively invites faith organizations to the tax-supported conferences, even offering a proverbial “free lunch” by encouraging them to apply for money and teaching them how to fill out the grant applications. Bush told the faith-based groups that there was a pile of government money and here is how you can get it. We think this is unconstitutional. Our secular government should not be promoting or funding religion.
We are not opposed to the freedom of private, tax-exempt religious groups to do their ministry. They are welcome to advertise, to appeal to supporters, to raise funds and to attempt to earn the respect that will attract donations toward their mission—but they should do it with private funding, not with the tax dollars that belong to all of us. They should figure out how to raise money with no special handholding by the government. That is what the separation of church and state should mean. None of us should be compelled to support someone else’s religion. In fact, if I were running a religious charity I would be embarrassed to admit that my god was not big enough to provide for my needs or direct my activities. If my religion were so ineffectual that I had to go begging from the public till for tax dollars, that would be a bald admission of failure or, at the very least, of ineptitude, as Benjamin Franklin suggested in the quote at the top of this chapter.
In 2004, after a string of victories, we decided to strike higher up. We sued the White House itself. We thought it was wrong for a president to abuse the secular office by actively promoting religion. Anne, Annie Laurie and I, as federal taxpayers and Foundation figureheads, joined by the Freedom From Religion Foundation (representing all taxpayers), filed suit in federal court challenging the formation of an internal faith-based bureaucracy in the Executive Branch (the faith-based offices in the White House and at the Cabinet level). Diligent Madison attorney Rich Bolton, who by now had become the nation’s leading expert on faith-based challenges, represented us. By that time, Jim Towey had become the new “faith-based czar” at the White House. (DiIulio had resigned, citing dissatisfaction with the program.)
The federal judge soon dismissed our case, not on the merits, but on the question of our “standing” to sue. He ruled that we taxpayers do not have the right to challenge the creation of the federal faith-based offices. It is true that taxpayers ordinarily do not possess such a right. I can’t sue the vice president over what brand of photocopier he purchases, or the president over what country he chooses to invade. But the Supreme Court, in
Flast v. Cohen
(1968), had previously carved out a narrow exception for violations of the Establishment Clause of the First Amendment (“Congress shall make no law respecting an establishment of religion...”) when it involves activities funded by Congress under the Congressional Tax and Spending clause. We were convinced that the
Flast
precedent gave us the right to sue. How else could citizens get at the violation? If we did not possess “standing” to sue, no one did. How could that be right?
Flast v. Cohen
(1968), had previously carved out a narrow exception for violations of the Establishment Clause of the First Amendment (“Congress shall make no law respecting an establishment of religion...”) when it involves activities funded by Congress under the Congressional Tax and Spending clause. We were convinced that the
Flast
precedent gave us the right to sue. How else could citizens get at the violation? If we did not possess “standing” to sue, no one did. How could that be right?
The judge argued that taxpayer standing under
Flast
applies only to money that Congress specifically allocates to the Executive Branch, not to discretionary dollars that the president uses from general appropriation. If Congress tells the administration to spend the money on religion, then we Americans can challenge it. Otherwise there is no “nexus,” no taxpayer connection, no injury, no case. Such reasoning provides a loophole that allows a president—especially a theocratic or imperial president—to get away with violating the Constitution. In fact, Bush had been trying to get Congress to fund the faith-based initiative, and failed (generally). So he simply did an end-run around Congress, created the faith-based initiative and spent the money anyway.
Flast
applies only to money that Congress specifically allocates to the Executive Branch, not to discretionary dollars that the president uses from general appropriation. If Congress tells the administration to spend the money on religion, then we Americans can challenge it. Otherwise there is no “nexus,” no taxpayer connection, no injury, no case. Such reasoning provides a loophole that allows a president—especially a theocratic or imperial president—to get away with violating the Constitution. In fact, Bush had been trying to get Congress to fund the faith-based initiative, and failed (generally). So he simply did an end-run around Congress, created the faith-based initiative and spent the money anyway.
We appealed our loss of standing to sue to the 7th Circuit Court of Appeals in Chicago. To our great satisfaction, a panel of judges overturned the district judge’s opinion, siding with us. Judge Richard Posner, a generally conservative judge who declared that the president should not be insulated from judicial scrutiny on religious matters, wrote the strong decision. “Suppose the Secretary of Homeland Security,” Posner wrote, “who has unearmarked funds in his budget, decided to build a mosque and pay an Imam a salary to preach in it because the Secretary believed that federal financial assistance to Islam would reduce the likelihood of Islamist terrorism in the United States… It would be too much of a paradox to recognize taxpayer standing only in cases in which the violation of the establishment clause was so slight or furtive that no other basis of standing could be found, and to deny it in the more serious cases.”
We were pleased with that decision—it is always nice to win—and were prepared to go back into district court to try the case on its merits. But the United States government was not happy. It petitioned the U.S. Supreme Court to overturn the appeals court decision. In late January 2006, only two weeks after our appeals court victory, a Bush right-wing nominee, Samuel Alito, replaced Supreme Court Justice Sandra Day O’Connor. By that time, Jay Hein had become the new head of the White House Office of Faith-Based and Community Initiatives, so the case was called
Hein v. Freedom From Religion Foundation.
The U.S. Supreme Court does not take many cases, and we did not want them to take ours. We were winning.
Hein v. Freedom From Religion Foundation.
The U.S. Supreme Court does not take many cases, and we did not want them to take ours. We were winning.
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