Court says church-state watchdog cannot sue over funding to Christian home for teens

A lawsuit challenging state funding of a Christian home for troubled teens has been thrown out of court, after a federal judge ruled the taxpayers who brought the case had no right to sue over the violations of church-state separation that they alleged.

Freedom From Religion Foundation, a Wisconsin-based church-state separationist group, filed the lawsuit a year ago, charging that the Dakota Boys and Girls Ranch operated inherently religious programs with public dollars. The lawsuit named as defendants North Dakota state and county agencies responsible for referring teens to the home, saying agency officials violated First Amendment prohibitions against government endorsement of religion.

But FFRF’s case against the state’s funding of the Lutheran home will not be heard, at least not in the near future. U.S. District Court Judge Daniel L. Hovland determined that the taxpayer plaintiffs had no right to sue over funds allegedly misspent by the North Dakota child welfare system because the expenditures were not specific appropriations of the state legislature — which would have been subject to such a legal challenge — but rather discretionary, executive branch expenditures — which are not.

Judge Hovland’s order comes a year after the decision handed down in Hein v. FFRF, in which the U.S. Supreme Court ruled that taxpayers may not mount legal challenges against the government over funding to religious organizations unless Congress has specifically authorized the programs that provide the money. Citizens may not sue over purely discretionary actions of the executive branch paid for out of general administrative funds, the court determined.

FFRF officials said they are considering further options, including a possible appeal, or reinstatement of the lawsuit on behalf of parents of resident children, rather than taxpayers. In a statement issued after the ruling, they urged parents of children at the three homes run by the Dakota Boys and Girls Ranch to contact them with any concerns over religious indoctrination there.

“The government should not be sentencing juveniles to a religious treatment program, and taxpayers should not be footing the bill to indoctrinate children or punish children who object to such indoctrination,” said Annie Laurie Gaylor, Co-President of FFRF, a group of more than 10,000 atheist and agnostic members.

The Dakota Boys and Girls Ranch had been a recipient of North Dakota Department of Human Services’ funding — to the tune of $7 million over the past two years, according to a newspaper report that became part of court filings. FFRF claims that the homes have “monopolized juvenile detention services in the state for many decades.”

A Christian legal organization spoke out recently in favor of Judge Hovland’s decision.

“A group of extremist atheists cannot simply demand that a Christian group be discriminated against because of its beliefs,” said Joel Oster, senior legal counsel for the Alliance Defense Fund.

George Washington University Law Professor Ira C. Lupu, who co-directs legal research for the Roundtable on Religion and Social Welfare Policy, likened the North Dakota district court decision to a March ruling in Kentucky that also relied on Hein. That case, Pedreira v. Kentucky Baptist Homes for Children, also challenged state funding of a Christian children’s home, and was also thrown out for the taxpayer plaintiffs’ lack of “standing” (as lawyers refer to the right to sue). But in both cases, Lupu said, an argument could be made in favor of taxpayers’ right to challenge the expenditures, because state legislatures authorized the spending for the programs, even if lawmakers did not designate that funds go to a specific institution.

If allowed to go forward, the North Dakota and Kentucky cases likely would have presented complex constitutional questions, Lupu said, and perhaps have produced politically unpopular decisions against the state or counties.

“District court judges may be relieved to get rid of these cases without having to decide them on the merits, and this is a legally plausible way to do it,” Lupu said.

Courts outside of North Dakota and Kentucky are not bound by the district court decisions in either state, Lupu said. But decisions by federal appeals courts in either case could have far-reaching impact, because such rulings would cover all of the states in the respective appeals court circuit and because courts throughout the nation would likely refer to them. Americans United for Separation of Church and State and the American Civil Liberties Union, which brought the Kentucky case, has asked the 6th U.S. Circuit Court of Appeals to overturn the Pedreira decision.

In addition to the possibility of an appeal, FFRF officials said they are contemplating bringing a new lawsuit targeting the Dakota Boys and Girls Ranch, with the parent of a teen resident as plaintiff. That type of challenge, however, could not focus on state spending, but on the narrower issue of religious coercion, Lupu said. The remedy in such a hypothetical case might be for the home to cease any activity that forced someone into an unwanted religious experience — not for the state to cease public funding of the home, Lupu said.

The significance of the Hein case is in the distinction now made between legislatively authorized expenditures and discretionary spending by the executive branch. Generally, taxpayers do not have the right to sue the federal government over its expenditures. Plaintiffs in lawsuits usually must show a more direct injury than a disagreeable expenditure of their tax dollars. Forty years ago, however, the Supreme Court made an exception to that rule with respect to lawsuits alleging tax money was spent in violation of the First Amendment’s Establishment Clause (“Congress shall make no law respecting an establishment of religion”). But before the Hein decision, when deciding whether citizens could mount a legal challenge against government expenditures based on church-state separation grounds, courts did not make a distinction between legislatively authorized spending for religious entities or causes, and discretionary executive spending for the same recipients.

In addition to taking aim at North Dakota state officials in its lawsuit, FFRF named county officials as well, claiming on behalf of its member plaintiffs to have municipal taxpayer standing to do so. Judge Hovland ruled that in order for those plaintiffs to have municipal taxpayer standing, they had to prove that the county not only collected their tax dollars but also had significant control over how the dollars were spent. The organization’s complaint, the judge wrote, was really over a program established and administered at the state level. Moreover, FFRF did not adequately demonstrate that county taxpayers were injured by the expenditure of county funds on the program. The state required the county to pay for treatment facilities for troubled teens, whether or not the Dakota Boys and Girls Ranch was among the recipients of those public dollars, he reasoned.

“(T)he Plaintiffs have not established that Pierce County has instituted a separate tax or paid for services from any specific appropriation designed to support the Dakota Boys and Girls Ranch, nor have the Plaintiffs shown that the referral of children to the Dakota Boys and Girls Ranch adds to the cost of referring children to treatment facilities,” the judge wrote.

Perhaps ironically, it was FFRF’s own lawsuit challenging the federal Faith-Based and Community Initiative — which became Hein v. FFRF —that ultimately increased the likelihood that judges thereafter would dismiss its trademark court challenges involving publicly funded social services. That lawsuit originally took aim at a series of regional conferences on federal aid to religious groups sponsored by the White House. Portions of the lawsuit, involving government grants to specific religious organizations, were allowed to move forward under different case names. As what remained of the original case moved upward through the federal courts, the issue for the Supreme Court to decide was whether the taxpayer plaintiffs had standing to sue over White House outreach to religious groups. In June 2007, the high court said they did not.

“The Freedom From Religion Foundation closed down a big part of its business by bringing that Hein case,” Lupu said.

FFRF has repeatedly said it intends to continue to bring court challenges against alleged violations of church-state separation.

— Clarie Hughes is a correspondent for the Roundtable on Religion and Social Welfare Policy.