How the Freedom from Religion Foundation's Eagerness to Block Religion Set a New First Amendment Precedent

A rallying cry amongst some of the more hard line atheists states that "freedom of religion," as guaranteed in the Establishment Clause of the First Amendment, is "freedom from religion." This has led them to attempt to ban prayers in schools, remove crosses from public view, and take other actions on the grounds that all of these violate the promised separation of church and state. One of the most vocal groups, the Freedom From Religion Foundation (FFRN), bit off a little more than it could chew when it tried to undo an executive order that allotted money for faith-based initiatives.

The center of dispute was George W. Bush's White Houe Offices of Faith-Based and Community Initiatives, created by executive order in 2009. It was considered an outreach of what the president described as "compassionate conservatism," and aimed to assist faith-based organizations so that they could in turn help their local communities. The problem? It used taxpayer dollars for funding.

The ACLU and FFRN took on the atheist cause with a fury, arguing vehemently that the distribution of tax dollars to support anything faith based clearly violated the Establishment Clause. Morever, despite not being a tax paying entity, the FFRN argued that on the basis of the Flast v Cohen case, they should be allowed to challenge the use of taxpayer money, particulaly when it is granted to religious initiatives.

This created an interesting dilemma for the courts. Did it, in fact, violate the Constitutional guarantee of separation of church and state? At first glance, many thought so, however the first denting of the argument was found when the district court ruled in favor of the White House Office. Of particular note, it ruled that the First Amendment clearly stipulates not that government shall not be involved in religion, but that it specifically pertains to congressional funding and respect based legislation. As the First Amendment states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Such meticulous wording worked against the FFRN, as it was deemed that since all funding for the Office was from the executive branch, it did not violate the Establishment Clause. The FFRN countered by arguing since the money originated in congress, it violated the First Amendment all the same.

The maelstrom of controversy ultimately found its way into the Supreme Court, where once again Flast v Cohen was cited, arguing that the taxpayers were seeing their money unfairly given to religious institutions. There were several technical legal attempts to get the case dismissed, riding primarily that there was no basis for lawsuit by the Foundation, as it was not a tax-paying entity.

Ultimately, despite fervent arguments on both parties' parts, the Supreme Court Ruled 5-4 that there was no Constitutional violation in this Office. The primary basis appeared to be the notion that the money was given from the executive branch, and was not written into law by Congress.

The precedent set by this is an interesting one, maintaining the Constitutional integrity of the First Amendment, which only places a restriction on Congress's ability to pass a law that respects the establishment of a religion. Since the Constituion does not expressly prohibit the allotment of money from either of the other branches, there was no basis for which a case could be made against the executive branch's usage of funds already designated for it to be sent to these grant-giving programs.

Morever, the usage of the Flast v Cohen case was dismissed, primarily on the basis that the Freedom From Religion Foundation suffered no additional taxes in order to support a case that suggested that they were unfairly affected. In essence, the only negative effect felt by the FFRN was the knowledge that money was being given to religious institutions, through no additional financial burden of their own, or in the organization's case, its tax paying members.

Despite attempting to establish a thorough ban on all government funding of religious organizations, the FFRN found itself biting off far more than it could chew in this argument, effectively establishing a precedent whereby the United States government is given the ability to alot money to religious organizations so long as it is not made into law, which is generally consistent with the Establishment Clause, although this has been met with protest by the ACLU and other organizations.

All the same however, by pressing the issue, the courts, in accordance with stare decisis, will be required to uphold this statute and decision for the sake of precedent, perhaps creating an interesting avenue for government distribution of funds to religious institutions so long as it is not congressionally appointed funds through law.

Jay Sekulow, of the American Center for Law and Justice, warmed to the idea, calling it a blow to "atheists and other antagonists to religion," saying that they no longer have a "free pass" to bring lawsuits to otherwise legal religious institutions.

On the other hand, the aforementioned atheist and antagonistic institutions have naturally reacted unfavorably. Ralph G. Neas of the People For the American Way called it a "bad day for the First Amendment."

Even more harshly, the FFRN's co-president, Dan Baker says, "This means we have a constitutional separation between church and state, but no way to enforce it if the executive branch chooses to violate it with 'discretionary' actions."