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Court to decide if faith-based initiative can be challenged

WASHINGTON (BP)–The Supreme Court has agreed to decide whether the White House’s faith-based initiative may be challenged by taxpayers on First Amendment grounds.

The high court will review an appeal by the federal government to a Seventh Circuit Court of Appeals ruling that the Freedom From Religion Foundation may bring suit against the program, which was inaugurated by President Bush to free religious organizations to seek government grants for the provision of social services to the needy.

The justices, however, recently failed to review lower court rulings against parental rights and education choice:

— The high court announced it would not weigh a controversial decision by the Ninth Circuit Court of Appeals rebuffing parents’ objections against a sex survey for elementary age students.

— The court decided not to grant an appeal of a Maine Supreme Judicial Court ruling allowing the state to exclude religious schools from its school-choice program.

The White House’s faith-based initiative has expanded since its inception, with more than $2.1 billion in competitive social service grants being made to faith-based groups in 2005, the third consecutive year there was an increase in such grants. The White House has sponsored 28 conferences to inform faith-based organizations about grants through the initiative. Eleven executive branch agencies have faith-based offices.

The Freedom From Religion Foundation and three people affiliated with the organization challenged the faith-based initiative as a violation of the First Amendment’s ban on government establishment of religion, but the issue to be addressed by the Supreme Court is narrower. The justices, who announced Dec. 1 they would hear the case, will determine if taxpayers can bring suit against such an executive branch program on establishment clause grounds.

A federal judge decided the foundation and its three members did not have standing to make such a challenge, but the Seventh Circuit overruled that decision.

The Department of Justice urged the high court to review the appeals court opinion, arguing the justices have rejected “taxpayer status” as a basis for standing in such a suit. DOJ said in its brief the justices had refused in the past to grant standing when the supposed harm was not “concrete and particularized” and not “actual or imminent.”

Americans United for Separation of Church and State, a leading advocate for strict, church-state separation, said the case was important despite its narrow focus. “It’s essential that the justices uphold the principle that taxpayers can go to court when their money is being used to advance religion,” AU Executive Director Barry Lynn said in a written statement.

In the appeal from the Ninth Circuit, the school survey for 7 to 10 year olds contained 54 questions, including 10 about sexual topics. Among these were questions about how often the students think “about having sex” and how often they think “about touching other people’s private parts.”

Seven parents brought suit against the Palmdale, Calif., School District, but a federal judge dismissed the case. The Ninth Circuit affirmed the judge’s ruling.

The Ninth Circuit, widely considered the most liberal in the country, said in a highly criticized comment in its opinion, “[T]here is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children, either independent of their right to direct the upbringing and education of their children or encompassed by it. We also hold that parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed” as students.

Mathew Staver, chairman of Liberty Counsel, said the appeals court removed some of the harmful language after its original opinion. Liberty Counsel handled the case for the parents after the Ninth Circuit ruling.

“Parents have the primary role of raising and training their children, especially when it comes to topics such as human sexuality,” Staver said in a written release. “It is outrageous to permit public school employees to indoctrinate our children regarding sex in any manner and at any age. Parents do not cease being parents when they drop their children off at the schoolhouse door.”

The Supreme Court announced Dec. 4 it would not review the decision.

The Maine school-choice case involved a law that allows government funds to be used for private school tuition in districts without a public high school. The law, however, does not permit funds to be used at religious schools. The Maine Supreme Court affirmed a lower court ruling upholding the law’s exclusion of religious schools.

In response to parents’ contention of religious discrimination, the state high court ruled the law “does not infringe upon the fundamental right to free exercise of religion in a constitutionally significant manner.”

Dick Komer, an Institute for Justice attorney, said after the Supreme Court announced Nov. 27 it would not review the Maine decision, “It’s appalling that the nation’s highest court is allowing blatant government discrimination against parents who choose religious schools to continue. … we will continue to seek out every opportunity to secure a ruling from the court that states may neither favor nor disfavor religious options in publicly funded programs.”

The Institute for Justice represented the parents in the case.

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