The White House is turning to the Supreme Court for help as the administration fights a challenge to its aggressive promotion of federal financial aid for religious charities.

Last year, a federal appeals court allowed a group of atheists to pursue a lawsuit alleging the Bush administration gives faith-based programs an inside track on federal grant programs.

Instead of going through Congress, Bush issued executive orders to create the White House Office of Faith-Based and Community Initiatives and similar centers in 10 federal agencies during his first term.

The Bush administration contends that taxpayers cannot challenge the use of these funds because they are general funds, not grants to religious groups pursuant to an act of Congress. The administration argues that the executive branch's use of these funds for faith-based conferences doesn't involve Congressional taxing and spending power.

The lower court in this case, the 7th Circuit Court of Appeals, found that the taxpayers were entitled to bring this lawsuit. Writing for the court majority, Judge Posner said that precedent confirmed that taxpayers have the ability to challenge alleged violations of the Establishment Clause even if Congress has not earmarked funds for the program or activity being challenged.

The lower court noted that "[t]he line proposed by the government (no standing to challenge the conferences, standing to challenge the grants) would be artificial because there is so much that executive officials could do to promote religion in ways forbidden by the [E]stablishment [C]lause (which despite its wording applies to executive as well as congressional action. . .) without making grants to religious organizations."

Among other things, the court pointed to a hypothetical to help make its point. "Suppose the Secretary of Homeland Security, 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 Islamic terrorism in the United States." Taypayers should be able to challenge these things, the court said. It concluded: "Taxpayers have standing to challenge an executive-branch program, alleged to promote religion, that is financed by a congressional appropriation, even if the program was created entirely within the executive branch, as by Presidential executive order."

• A ruling for the government could be used to strengthen Administration barriers against challenges to its decisions, both in First Amendment cases and otherwise. Particularly worrying, however, is that a judgment in favor of the Administration would create a loophole large enough for them to drive a Mack truck through - or a mosque, as the case may be.
  
  There is utterly nothing in the track record of this administration to make anybody think it could be trusted to distribute funds to religious groups fairly. Even worse, given Dick Cheney's love of the Unitary Executive, closing off one more avenue of challenge would be positively mouthwatering to this gang.
  
  
• Several states have filed an amicus brief arguing that a ruling in favor of FFRF would impinge on the doctrine of federalism. Look at this list and tell me most of them wouldn't love to be exempted from these challenges on the grounds of "States' Rights": Alabama, Colorado, Florida, Indiana, Michigan, Nevada, North Dakota, Oklahoma, South Carolina, Texas, Virginia and Washington State.
  
  
• Without standing, folks like the ACLU, Americans United for Separation of Church and State, the Baptist Joint Committee for Religious Liberty, People for the American Way, and the Anti-Defamation League, and a host of other separation-minded groups would essentially be locked out of the courtroom, a prospect that has right-wingers like the Christian Defense Fund and the ACLJ positively salivating.
  
  It should go without saying - but unfortunately does not - that many of these groups don't actually hate faith. For that matter, neither does FFRF, though they condsider it a menace. But the ACLU is at some pains to point out that they have been active in many cases defending clients' right to free expression of their faith, a point that is often conveniently forgotten by their conservative detractors.