A federal judge in Illinois has rejected a church-state challenge to funds that are slated to go to religious organizations for capital improvements and social services provided by community-based groups. Activist Rob Sherman sought an injunction to prevent the Governor from distributing the funds as scheduled, and asked for the judge to find the state legislature's act unconstitutional.
Judge Michael McCuskey – showing once again how difficult it is to bring a church-state lawsuit after the Supreme Court's decision in Hein – ruled Monday (2010 U.S. Dist. LEXIS 83313) that because the spending in question is essentially the Governor's, and not the legislature's, Sherman lacks standing to challenge the $2.23 billion in social services money.
Plaintiff here is not challenging the allocation of funds to community-based human services providers per se. Instead, the crux of Plaintiff's allegations is that "the broad discretionary spending authority provided to Defendant [Governor] Quinn" may result in grant money going to religious or sectarian institutions…. In this case, the Illinois General Assembly simply appropriated $2.23 billion for Defendant Quinn to distribute to "community-based human services providers and agencies that are associated with programs and other services that provide assistance for those in need." Plaintiff does not challenge the specific appropriation, but instead argues that it may be administered in an unconstitutional fashion, the very argument the Seventh Circuit rejected in Nicholson.
In addition, while the judge allowed for a future challenge once the organizations put the money to use, he found that the capital improvements appropriation, which did specify religious recipients, does not in itself violate the constitution because it remains to be seen precisely how the organizations will spend the money.
The provision does not describe what types of infrastructure projects will be undertaken and is ambiguous. The Supreme Court has routinely upheld similar laws that provided construction money to private institutions, including church-related colleges and universities, when such money is to be used only for secular purposes….
The Court notes that there is always the potential that the grant money described in the Act would be used in a manner that violates the Establishment Clause. However, the provisions identified in Exhibits B and C to the Complaint are not invalid on their faces. If, after the money in these provisions has been disbursed, Plaintiff discovers that something potentially unconstitutional is underfoot, he may raise an as-applied challenge to the provisions.
