Whether or not the existence of the White House Office of Faith-Based and Community Initiatives (OFBCI) is unconstitutional remains to be determined. Under a year ago, the Supreme Court almost tried to resolve this conundrum, but punted.  Rather than asking whether the office violates the First Amendment's Establishment Clause (which it may) or Separation of Powers (which it does, but more on that later), they summarily dismissed the case. 

The Establishment Clause, which prohibits any "law respecting an establishment of religion," is notoriously hazy.  Some read it and believe that simply using federal dollars to fund faith-based organizations clearly entangles the purse of government with the arm of religion.  But interestingly, the phrase "separation of Church and State" appears nowhere in the Constitution-it is often misattributed to the Establishment Clause.  In fact, the United States sometimes affords religion special protection.  After all, the voting populace is religious, and there is no Democracy unless the people fashion a government in their own image.

Whether the OFBCI respects the establishment of religion is an open question, and not one the Supreme Court has yet examined.  When George W. Bush created the OFBCI to "ensure a level playing field for faith-based organizations," the idea was to inspire equal treatment where there was none.  In other words, older administrations, afraid of violating the Establishment Clause, pussyfooted away from faith rather than giving it a fair shake.  At least, that is the premise of the OFBCI; apparently, faith has it tough in America.

Federal agencies have indeed imposed prejudices against faith based-groups for fear of violating the Establishment Clause, even where funding those groups may have fit within the courts' interpretation of that clause.  And so the OFBCI eagerly reminds America: "No more!  The time for being careful is gone."  

So is the OFBCI an appropriate reaction to past injustice or overcompensation?  This is the same question as ‘Is the OFBCI constitutional?' because the Constitution is the authority on what is ‘appropriate' in America.

Take the following example.  The secular international organization CARE has partnered with the US government in humanitarian missions since World War II.  In 2001, the US Agency for International Development (USAID) funded CARE $138 million to fight AIDS in Africa. This funding gradually shrunk to $50 million in 2006, disappearing entirely in 2007.  Meanwhile, the President's New Partners Initiative (through the OFBCI) has phased in faith-based allies in the fight against AIDS, some of which offer abstinence-until-marriage education and some of which refuse to distribute condoms (like the Catholic Medical Missions Board).

According to legal precedent, the Constitution's Establishment Clause prohibits "excessive government entanglement" with religion (Lemon v. Kurtzman, 1971).  Funding represents an excessive entanglement unless "the aid is offered on a neutral basis" and is "secular in content" (Mitchell v. Helms, 2000).  This reflects earlier jurisprudence, which prohibited government aid towards programs with "specifically religious activities" or "explicitly religious content" (Bowen v. Kendrick, 1988).  

The Supreme Court has flatly refused to review the constitutionality of the OFBCI, considering only one case that challenged the office.  In Hein v. Freedom From Religion Foundation in 2006, the Court dismissed the case on the grounds that the plaintiffs lacked "legal standing" because the claimed injury-having their tax dollars fund religious programs they object to on principle-did not constitute a "personal injury fairly traceable to...allegedly unlawful conduct," as required by the Court.  

Clearly the Court interprets this standing rule too narrowly.  Even if CARE or a similar group challenged the OFBCI in the Supreme Court, it might have standing to get its money back-to fix that specific injury-but not to challenge the office itself!

The Hein dismissal, of course, was declared a rousing "victory" by the OFBCI.  Still, the decision hinged on the observation that "the expenditures at issue were not made pursuant to any Act of Congress, but under general appropriations to the Executive Branch to fund day-to-day activities."  In other words, if Congress was running the OFBCI, the plaintiffs would have had standing, and such religious expenditures would be overturned.

To reiterate, the Supreme Court will only refuse to review an office when that office's funding (which in this case totals over $14 billion annually) comes directly out of the President's discretionary funds.  Constitutionally speaking, this is like not allowing a knife into evidence because it is too bloody.  

Justice Souter's Hein dissent explains why the Court's ruling-and the office itself-burns constitutionality at the stake. "...if the Executive could accomplish through the exercise of discretion exactly what Congress cannot do through legislation, Establishment Clause protection would melt away."  

According to the majority opinion, says Souter, if the OFBCI were an actual national church, no one would have standing to challenge its obvious unconstitutionality.  Three other justices agreed.

Congress controls the purse strings in America under the absolutely essential need for checks and balances.  Yet, when it comes to the OFBCI, Congress cannot check the President, and the Court refuses to do so.  Unchecked and unbalanced, the Executive branch has crawled into bed with religion and no one else in government seems to be even raising an eyebrow.

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