Freedom Religion v. Chao, Elaine ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1130
FREEDOM FROM RELIGION FOUNDATION, INC., et al.,
Plaintiffs-Appellants,
v.
ELAINE L. CHAO, Secretary of Department of Labor, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04 C 0381 S—John C. Shabaz, Judge.
____________
ARGUED SEPTEMBER 13, 2005—DECIDED JANUARY 13, 2006
____________
Before POSNER, RIPPLE, and WOOD, Circuit Judges.
POSNER, Circuit Judge. The question presented by this
appeal is whether a taxpayer can ever have standing under
Article III of the Constitution to litigate an alleged viola-
tion of the First Amendment’s establishment clause unless
Congress has earmarked money for the program or activ-
ity that is challenged. The district judge thought not, and
would have been correct in his thinking under an earlier
view of Article III’s limitation of the federal judicial power
to deciding “Cases” and “Controversies.” It was once
thought that these terms (which “are, for all intents and
2 No. 05-1130
purposes, synonymous,” Jones v. Griffith, 870 F.2d 1363, 1366
(7th Cir. 1989)) limited federal jurisdiction to cases in which
the plaintiff alleged the kind of injury that would have
supported a lawsuit in the eighteenth century. In the words
of Justice Frankfurter, “Both by what they said and by what
they implied, the framers of the Judiciary Article gave
merely the outlines of what were to them the familiar
operations of the English judicial system and its manifesta-
tions on this side of the ocean before the Union. Judicial
power could come into play only in matters that were the
traditional concern of the courts at Westminster and only if
they arose in ways that to the expert feel of lawyers consti-
tuted ‘Cases’ or ‘Controversies.’ . . . Even as to the kinds of
questions which were the staple of judicial business, it was
not for courts to pass upon them as abstract, intellectual
problems but only if a concrete, living contest between
adversaries called for the arbitrament of law.” Coleman v.
Miller, 307 U.S. 433, 460 (1939) (concurring opinion).
In line with Justice Frankfurter’s thinking, Doremus v.
Board of Education, 342 U.S. 429, 433-34 (1952), rejected
taxpayer standing as inconsistent with Article III, cf.
Frothingham v. Mellon, 262 U.S. 447, 488 (1923), though a
taxpayer could sue in state court to enforce his federal right
if the state didn’t impose as rigorous a standing requirement
as Article III does. See, e.g., Appleton v. Menasha, 419 N.W.2d
249, 252-53 (Wis. 1988). The tangible harm to the taxpayer
complaining of the expenditure was too attenuated to
satisfy eighteenth-century notions of standing embodied in
Article III. Indeed, the tangible harm would often be zero
because if the complained-of expenditure was enjoined, the
money would probably be used to defray some other public
expense that would not benefit the taxpayer, rather than
returned to him in the form of a lower tax rate.
No. 05-1130 3
Notions of standing have changed in ways to induce
apoplexy in an eighteenth-century lawyer. For example,
Department of Commerce v. U.S. House of Representatives, 525
U.S. 316, 331 (1999), upheld standing to challenge the use of
statistical sampling for the decennial census; the mere
“threat of vote dilution” as a result of the methodology
was deemed sufficiently concrete, actual, and imminent
to confer standing. Federal Election Commission v. Akins,
524 U.S. 11, 20-25 (1998), upheld standing to sue for lists
of donors to political action committees, on the ground “that
the information would help [the committees] (and others to
whom they would communicate it) to evaluate candidates
for public office.” Bush v. Vera, 517 U.S. 952, 958 (1996)
(plurality opinion), upheld the standing of voters who lived
in newly created majority-minority congressional districts
to challenge them as racially gerrymandered on the ground
that such districting denied them equal treatment. U.S. Term
Limits, Inc. v. Thornton, 514 U.S. 779 (1995), assumed (with-
out discussion) that there was taxpayer and voter standing
to challenge a state constitutional amendment that provided
that no candidate could be on the ballot who had already
served either three terms in the House of Representatives or
two terms in the Senate.
And with specific reference to the establishment clause,
consider our decision in American Civil Liberties Union v. City
of St. Charles, 794 F.2d 265, 267-69 (7th Cir. 1986), where we
considered how much (or rather how little) injury is re-
quired to establish conventional (not even taxpayer) stand-
ing in an establishment case. We thought it enough that the
plaintiffs, who objected to the prominent display of a cross
on public property at Christmas time, had “been led to alter
their behavior—to detour, at some inconvenience to them-
selves, around the streets they ordinarily use,” in order to
avoid having to see the cross. Id. at 268. “The curtailment of
4 No. 05-1130
their use of public rights of way” was injury enough to
support their suit. Id. In reaching this conclusion we relied
on Abington School District v. Schempp, 374 U.S. 203 (1963),
where the Supreme Court had held that schoolchildren and
their parents had standing to complain that the reading of
the Bible and the recitation of the Lord’s Prayer in the public
school that the children attended violated the establishment
clause. The specific injury to the plaintiffs could have been
averted by the parents’ taking their children out of
the public school and putting them in a secular private
school (or by moving to another public school district), but
those options did not deprive the plaintiffs of standing
because it was an injury to them to take their children out of
the public school, just as it was an injury to the plaintiffs in
the St. Charles case that they had to detour to avoid the
direct effect on them of the alleged violation (in effect, to
mitigate their damages). No such ground of standing is
claimed here, however; it is taxpayer standing or nothing
for these plaintiffs.
It was not long after Schempp that the Supreme Court
decided Flast v. Cohen, 392 U.S. 83 (1968), in favor of a
taxpayer challenge in federal court to an alleged violation of
the establishment clause. Congress had appropriated money
for grants of financial assistance to private as well as public
schools, and the plaintiffs complained that insofar as some
of the grants had been made to parochial schools, the statute
violated the establishment clause. The Court interpreted
Frothingham and Doremus as having rested not on Article
III—not on the notion that the injury that a taxpayer sus-
tains if his taxes are used for a purpose offensive to him is
too slight (in the Frankfurterian originalist conception) to
sustain a case or controversy in the Article III sense—but
rather on what have come to be called the “prudential”
principles of standing. These are judge-made principles
No. 05-1130 5
illustrated by Warth v. Seldin, 422 U.S. 490, 509 (1975), that
deny standing to someone who has been injured as a result
of the defendant’s conduct (the core standing requirement
of Article III) but who is not the “right” person to bring suit,
maybe because someone has been injured more and should
be allowed to control the litigation.
An example of the prudential limitations on standing
is the judge-made “indirect purchaser” doctrine of anti-
trust law that denies a right of action to a purchaser from a
purchaser from a cartel. Illinois Brick Co. v. Illinois, 431 U.S.
720 (1977). If as is highly likely a purchaser from the cartel
(the “direct purchaser”) passes on a portion of the cartel
overcharge to his customers (the “indirect purchasers” from
the cartel), the latter are injured and an award of damages
would redress their injury. So there would be Article III
standing. But to allow them to sue would greatly complicate
litigation, first because the court would have to determine
how much of the overcharge had been passed on, a difficult
question of incidence analysis, and second because there
would be tiers of plaintiffs complaining about the same
violation of law.
But the prudential principles of standing, like other
common law principles, are protean and mutable (the term
“prudential” is the very antithesis of a definite rule or
standard). The Court decided in Flast that they should not
stand in the way of challenges to “exercises of congressional
power under the taxing and spending clauses of Art. I, § 8,
of the Constitution,” provided that the expenditure com-
plained of is not just “an incidental expenditure of tax funds
in the administration of an essentially regulatory statute”
and that “the challenged enactment exceeds specific consti-
tutional limitations imposed upon the exercise of the
congressional taxing and spending power and not simply
that the enactment is generally beyond the powers dele-
6 No. 05-1130
gated to Congress by Art. I, § 8.” 392 U.S. at 102-03. The
Court found that this two-part test was satisfied by a
challenge to the use of “the taxing and spending
power . . . to favor one religion over another or to support
religion in general.” Id. at 103.
The word “specific” in the passage we quoted from Flast
turned out to be critical to the Court’s later reasoning. By
forbidding Congress to establish a national church, the
establishment clause places a specific limitation on congres-
sional appropriations, since the essence of an establishment
of religion is government financial support. Walz v. Tax
Commission of City of New York, 397 U.S. 664, 668 (1970) (“for
the men who wrote the Religion Clauses of the First
Amendment the ‘establishment’ of a religion connoted
sponsorship, financial support, and active involvement of
the sovereign in religious activity”); see also Engel v.
Vitale, 370 U.S. 421, 430-31 (1962). In Valley Forge Christian
College v. Americans United for Separation of Church & State,
Inc., 454 U.S. 464 (1982), we learn that a taxpayer has
standing to complain only about the violation of a limitation
on Congress’s power under Article I, section 8, of the
Constitution to tax and (implicitly) to spend money to
finance the exercise of the various powers granted to
Congress by Article I. Taxpayers challenged the donation of
a disused army hospital by a federal executive agency to a
religious institution. The Court denied them standing
because the transfer had not been made by Congress or
pursuant to an exercise of Congress’s taxing and spending
powers; it had been made (by the agency) pursuant to
Congress’s power under Article IV, section 3, to dispose of
U.S. property. Id. at 479-80.
To complete the edifice, Bowen v. Kendrick, 487 U.S. 589,
618-20 (1988), held that taxpayers had standing to challenge
No. 05-1130 7
grants by a federal agency to religious institutions pursuant
to a statute that authorized grants to public and private
institutions for services related to adolescents’ sexual
problems, even though the grants had not been made by
Congress itself. Kendrick was a replay of Flast, where the
complaint had been not about the statute itself, which said
nothing about religion (there was such a complaint in
Kendrick but the part of the Court’s opinion dealing with
that complaint does not relate to our case), but about the
fact that in administering the statute the executive branch
had made grants to religious institutions. Consistent with
Flast, Kendrick reads Valley Forge as not requiring taxpayers
to show that a statute violated the establishment clause; all
they had to show was that a statute enacted pursuant to
Congress’s taxing and spending powers under Article I,
section 8 had been necessary for the violation to occur—it
did not have to be sufficient. The violation was not com-
pleted until the executive branch acted, but the taxpayers
still had standing to challenge it.
In Valley Forge the executive branch had simply given
away surplus property, and while the property had proba-
bly been built or acquired with appropriated funds rather
than donated to the government, the Court did not treat the
transfer as an expenditure of appropriated funds. Similarly,
in In re United States Catholic Conference, 885 F.2d 1020, 1027-
28 (2d Cir. 1989), where standing to challenge the Internal
Revenue Service’s grant of a tax exemption to the Catholic
Church was denied, there was no expenditure of appropri-
ated funds and no challenge to the exercise of Congress’s
taxing and spending powers. Cf. Allen v. Wright, 468 U.S.
737 (1984); Simon v. Eastern Kentucky Welfare Rights Org., 426
U.S. 26 (1976); District of Columbia Common Cause v. District
of Columbia, 858 F.2d 1, 3-4 (D.C. Cir. 1988).
8 No. 05-1130
The present case, however, is governed by Kendrick. The
taxpayers here are complaining about the use of money
appropriated by Congress under Article I, section 8, to fund
conferences that various executive-branch agencies hold to
promote President Bush’s “Faith-Based and Community
Initiatives.” This is a program that the President has created
by a series of executive orders. One order established an
Office of Faith-Based and Community Initiatives in the
White House. Others established Centers for Faith-Based
and Community Initiatives in the various federal depart-
ments.
The stated goal of the conferences is to promote commu-
nity organizations whether secular or religious, as explained
in the conferences’ website (www.dtiassociates.
com/FBCI/):
For years, faith-based and community groups have been
assisting people in need. Unfortunately, the Federal
government has often not been a willing partner to
these groups in the provision of social services. Presi-
dent Bush has worked to change this. Since he took
office, thousands of grassroots organizations have
received training in the Federal grants process, and
hundreds of these groups have successfully competed
for Federal funds for the first time. The White House
will host a new round of Conferences on Faith-Based
and Community Initiatives to continue supporting the
work of effective social service programs. The confer-
ences will provide participants with information about
the Federal funding process, available funding opportu-
nities, and the requirements that come with the receipt
of Federal funds. The conferences will also provide an
opportunity to inform State and local officials about
equal treatment regulations and other central elements
of the Faith-Based and Community Initiative. The
No. 05-1130 9
conferences will be supported by the Departments of
Justice, Agriculture, Labor, Health and Human Services,
Housing and Urban Development, Education, Com-
merce, and Veterans Affairs, the Small Business Admin-
istration, and the Agency for International Develop-
ment.
The plaintiffs claim that in fact the conferences are designed
to promote religious community organizations over secular
ones.
The complaint—all we have to go on at this stage—is
wordy, vague, and in places frivolous, as where it insinuates
that the President is violating the establishment clause by
“tout[ing] the allegedly unique capacity of faith-based
organizations to provide effective social services”— as if the
President were not entitled to express his opinion about
such organizations. But the complaint is not entirely
frivolous, for it portrays the conferences organized by the
various Centers as propaganda vehicles for religion, and
should this be proved one could not dismiss the possibility
that the defendants are violating the establishment clause,
because it has been interpreted to require that the govern-
ment be neutral between religion and irreligion as well as
between sects. McCreary County v. American Civil Liberties
Union of Kentucky, 125 S.Ct. 2722, 2733-34 (2005); Board of
Education of Kiryas Joel Village School District v. Grumet, 512
U.S. 687, 696 (1994); Texas Monthly, Inc. v. Bullock, 489 U.S.
1, 14-17 (1989). Neutrality goes both ways; if the govern-
ment merely wants to redress discrimination against
religious providers of social services, it is not violating the
establishment clause. Rosenberger v. Rector & Visitors of
University of Virginia, 515 U.S. 819, 839 (1995); Lynch v.
Donnelly, 465 U.S. 668, 673 (1984); Linnemeir v. Board of
Trustees of Purdue University, 260 F.3d 757, 765 (7th Cir.
2001). But these are the issues on the merits; the only
10 No. 05-1130
question before us is the plaintiffs’ standing to litigate the
merits.
At argument the plaintiffs’ counsel was unable to identify
the appropriations that fund the conferences. The complaint
does, however, allege that the conferences are funded by
money derived from appropriations, which means from
exercises of Congress’s spending power rather than from,
say, voluntary donations by private citizens. There is no
suggestion that these are appropriations earmarked for
these conferences, or for any other activities of the various
Faith-Based and Community Initiatives programs, or for a
statute pursuant to which the programs were created. The
money must come from appropriations for the general
administrative expenses, over which the President and other
executive branch officials have a degree of discretionary
power, of the departments that sponsor the conferences.
Consolidated Appropriations Act, 2005, Pub. L. No. 108-447,
118 Stat. 2809, 2853, 3115-16, 3136, 3150, 3311-12; Depart-
ment of Homeland Security Appropriations Act, 2005, Pub.
L. No. 108-334, 118 Stat. 1298-99.
The difference, then, between this case on the one hand
and Flast and Kendrick on the other is that the expendi-
tures in those cases were pursuant to specific congres-
sional grant programs, while in this case there is no statu-
tory program, just the general “program” of appropriating
some money to executive-branch departments without
strings attached. The difference cannot be controlling.
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 Islamist terrorism in
the United States. No doubt so elaborate, so public, a
subvention of religion would give rise to standing to sue on
No. 05-1130 11
other grounds, just as in the St. Charles cross case; taxpayer
standing in the hypothetical mosque case would not be
essential to enabling a suit to be brought in federal court to
challenge the violation of the establishment clause. But it
would be too much of a paradox to recognize taxpayer
standing only in cases in which the violation of the estab-
lishment clause was so slight or furtive that no other basis
of standing could be found, and to deny it in the more
serious cases.
At the other extreme, the fact that almost all executive
branch activity is funded by appropriations does not
confer standing to challenge violations of the establish-
ment clause that do not involve expenditures. Imagine a suit
complaining that the President was violating the clause by
including favorable references to religion in his State of the
Union address. The objection to his action would not be to
any expenditure of funds for a religious purpose; and
though an accountant could doubtless estimate the cost to
the government of the preparations, security arrangements,
etc., involved in a State of the Union address, that cost
would be no greater merely because the President had
mentioned Moses rather than John Stuart Mill. In other
words, the marginal or incremental cost to the taxpaying
public of the alleged violation of the establishment clause
would be zero. But in the hypothetical case of the mosque,
and in the real though much less dramatic case before us,
the objection is to a program for which money undoubtedly
is “appropriated,” albeit by executive officials from discre-
tionary funds handed them by Congress, rather than by
Congress directly.
The government asks us to shift the line so that it runs not
between the Presidential (or other official) speech and a
Presidential initiative (the conferences), but between
the speech and the initiative, on the one hand, and grants
12 No. 05-1130
made pursuant to the initiative, on the other hand. The
conferences are concerned in part with instructing the
attendants on how to apply for government grants for
their religious organizations; but the challenge that is before
us is not to the grants but to the conferences. The 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 offi-
cials could do to promote religion in ways forbidden by
the establishment clause (which despite its wording ap-
plies to executive as well as congressional action, American
Civil Liberties Union of Illinois v. City of St. Charles, supra, 794
F.2d at 270) without making outright grants to religious
organizations. For the government to operate a mosque
or other place of worship would not involve a grant unless a
contractor was involved.
We are mindful that the Court in Flast carved an exception
for “an incidental expenditure of tax funds in the adminis-
tration of an essentially regulatory statute.” Flast v. Cohen,
supra, 392 U.S. at 102. We may put to one side “regulatory”
and focus on “incidental.” That is a relative term. Whether
an expenditure is incidental depends on what it is deemed
incidental to. Every government expenditure could be
thought incidental to the great goal of the public welfare, a
pursuit that costs the federal government some $2 trillion a
year, to which the cost of a mosque would certainly be
incidental. The Department of Homeland Security alone has
a budget of more than $30 billion, compared to which the
funds required for the construction of a mosque would be
small—and therefore “incidental”? The religiously oriented
programs challenged in Kendrick were incidental to the goal
of solving problems of adolescent sexuality, but this did not
negate taxpayer standing. If the conferences at issue in this
case are, as the plaintiffs charge, intended to promote
No. 05-1130 13
religion, the fact that their cost is slight relative to the
budgets of the various departments that sponsor them does
not make that cost incidental. Otherwise, indeed, there
would be no federal taxpayer standing in any case.
The word “incidental” in Flast should be reserved for such
cases as that of the government’s expenditure on an ar-
mored limousine to transport the President to the Capitol to
deliver the State of the Union address in which he speaks
favorably of religion. Or to the government’s expenditure
on processing the Catholic Church’s application in In re
United States Catholic Conference, supra, for a tax exemption.
So while it is true that the executive branch would quickly
grind to a halt without general budget appropriations from
Congress, our analysis, tracking Kendrick, would not permit
an individual citizen to challenge just any action of the
executive with which he disagrees as a violation of the
establishment clause.
The hypothetical case of standing to challenge a Presiden-
tial speech extolling religion turns out not to be entirely
hypothetical. One of the defendants in this case is a
former Secretary of Education, Rod Paige, whom the
plaintiffs accuse not of sponsoring or administering con-
ferences under the President’s Faith-Based and Community
Initiatives program but of having given a speech at one
of them in which he said that “President Bush does this
because he knows first-hand the power of faith to
change lives—from the inside out. And the reason he knows
this is because faith changed his life.” The district judge was
right to rule that the plaintiffs had no standing to sue Paige
because of that remark, just as he was right to rule, in a part
of the case not before us, that the plaintiffs do have standing
to challenge actual grants made to faith-based organizations
pursuant to the President’s initiative. (The judge went on to
14 No. 05-1130
dispose of that phase of the case on summary judgment, but
the appeal does not challenge his disposition.)
We must consider finally the bearing of a line of cases,
illustrated by United States v. Richardson, 418 U.S. 166 (1974);
Schlesinger v. Reservists Committee to Stop the War, 418 U.S.
208 (1974), and Public Citizen, Inc. v. Simon, 539 F.2d 211,
217-19 (D.C. Cir. 1976), in which taxpayer standing to
enforce provisions of the Constitution other than the
establishment clause was rejected. The Public Citizen suit
complained that federal employees were illegally assist-
ing in President Nixon’s reelection campaign. The court
rejected “taxpayer standing to attack any executive action
that draws on an outstanding appropriation on the ground
that the purchases or services are not in accord with the
congressional intent in passing the appropriation. This
would place the judiciary in the role of management
overseer of the Executive Branch. Such oversight is a
function of Congress . . . . When what is involved is expen-
ditures in implementation of a regulatory statute, or mere
executive activity that entails some expenditures, there is
no . . . arrow aimed at taxpayers as a class, but an activity of
concern to the public at large.” Federal employees employed
in programs of unquestioned constitutionality cannot be
sued by taxpayers simply because they divert some of their
work time to improper purposes—just as the President
could not be sued for a speech extolling religion even in the
unlikely event that the speech violated the establishment
clause.
So if the plaintiffs acknowledged the underlying constitu-
tionality of the Faith-Based and Community Initiatives
program, the fact that government employees involved in
the program sometimes wandered out of the neutral zone
would not confer standing to sue. But since the program
itself is challenged as unconstitutional, the fact that it was
No. 05-1130 15
funded out of general rather than earmarked appropria-
tions—that it was an executive rather than a congressional
program—does not deprive taxpayers of standing to
challenge it. 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. We therefore vacate the
judgment and remand the case for a determination of the
merits of those claims that we have determined the plain-
tiffs have standing to litigate.
VACATED AND REMANDED, WITH DIRECTIONS.
RIPPLE, Circuit Judge, dissenting. Today, the panel major-
ity holds that executive conduct alleged to have violated the
Establishment Clause may be challenged by federal taxpay-
ers so long as that conduct was financed in some manner by
a congressional appropriation. Because I do not believe that
the applicable Supreme Court precedent permits such a
dramatic expansion of current standing doctrine, I respect-
fully dissent.
The modern doctrine of constitutional standing was hard-
born and has endured a difficult adolescence. It has now
reached a stage of maturity, however, where several
milestones in its growth have become important and well-
established doctrine firmly ingrained in the Nation’s
jurisprudence. As an intermediate appellate court, we
cannot ignore or treat as malleable what the Supreme
Court has mandated.
16 No. 05-1130
The first of these principles is the Court’s insistence
that the core factors in the doctrine of standing are not
simply prudential matters of judicial restraint but constitu-
tional requirements rooted firmly in the Case and Contro-
versy Clause of the Third Article of the Constitution. “[A]t
an irreducible minimum, Art. III requires the party who
invokes the court’s authority to show that he personally has
suffered actual or threatened injury as a result of the
putatively illegal conduct of the defendant, and that the
injury can be traced to the challenged action and is likely
to be redressed by a favorable decision.” Valley Forge Coll. v.
Americans United for Separation of Church and State, 454 U.S.
464, 472 (1982) (internal quotations and citations omitted);
see also Allen v. Wright, 468 U.S. 737, 751 (1984). It is the first
of these requirements—the need for a concrete injury—that
must be the focus of our inquiry in this case. This “irreduc-
ible constitutional minimum” has required that the tradi-
tional formula for taxpayer standing, articulated by Chief
Justice Warren in Flast v. Cohen, 392 U.S. 83, 102-03 (1968),
be construed with “rigor.” Valley Forge Coll., 464 U.S. at 481.
That formula requires that the federal taxpayer establish a
logical link between his status as a taxpayer and the type of
legislative enactment attacked, which for taxpayers can be
only an exercise of the congressional power under the
Taxing and Spending Clause of Article I, § 8 of the Constitu-
tion. It also requires that the taxpayer establish a nexus
between his status as a taxpayer and the precise nature of
the constitutional infringement alleged. Flast at 102. It is
undisputed that the question before us requires that we
focus on the first of these requirements and ask whether the
plaintiffs have, in the allegations of their complaint, set forth
with sufficient rigor a nexus between their status as taxpay-
ers and an exercise of the congressional power under the
Taxing and Spending Clause.
No. 05-1130 17
Before turning to a definitive answer to that question, we
should pause for a moment and reflect on why the Supreme
Court requires that we examine this assertion of nexus so
rigorously. Taxpayer standing “pushes the envelop” on
traditional notions of constitutional standing. Ever since
Frothingham v. Mellon, 262 U.S. 447 (1923), the specter of a
citizen bringing a lawsuit in a federal court to rectify an
undifferentiated injury has loomed prominently over the
development of our standing jurisprudence. Any assertion
of taxpayer standing comes close, dangerously close, to
becoming such a case. A lawsuit based on such undifferenti-
ated injury—a mere disagreement with the government
policy—is hardly the case and controversy within the
jurisdiction of the federal courts.
When the Supreme Court has been called upon to exam-
ine this first prong of the Flast analysis, its decisions so far
have been grounded on the fact that the complaint really
did not present a grievance linked to the Taxing and
Spending Clause, but instead based on another constitu-
tional provision. Therefore, in United States v. Richardson,
418 U.S. 166 (1974), the Court rejected the assertion of
taxpayer standing over a suit based on the Accounts Clause.
Again in Schlesinger v. Reservists Committee to Stop the War,
418 U.S. 208 (1974), the Court refused taxpayer standing to
an individual who asserted a violation of the Incompatibil-
ity Clause. In Valley Forge, the Court similarly decided that
a taxpayer suit that implicated the Property Clause, not the
Taxing and Spending Clause, could not be maintained.
In this case, the gravamen of the plaintiffs’ complaint is of
course based on the Establishment Clause, a specific
restriction on Congress’ power to spend. But is it based on
an exercise of the Taxing and Spending Clause? The plain-
tiffs ask that we answer that question in the affirmative
18 No. 05-1130
because organizing and conducting the meetings in question
involved the expenditure of government funds; the Govern-
ment replies that the only funds involved are those made
available to the President for the operation of his executive
office. In its view, specific legislative expenditure under the
taxing and spending power is simply not at stake. Rather,
the object of the plaintiffs’ complaint is the decision of the
President to use the funds to conduct these meetings.
My colleagues take the view that, if a taxpayer can
challenge the expenditure of government funds under a
specific appropriation, they ought to be able to question an
expenditure under a general appropriation as well. In my
view, this approach, while possessing an initial appeal,
simply cuts the concept of taxpayer standing loose from its
moorings. The Court’s post-Flast holdings make it clear that
taxpayer standing survives as a narrow exception to
Schlesinger, Richardson and Wright’s ban on generalized
grievances. It has survived, even on those narrow terms,
only because of the inherent difficulty in enforcing the
specific prohibition of the Establishment Clause against
the expenditure of government funds for the establish-
ment of religion. See Flast, 392 U.S. at 103. Beneficiaries of
such spending have no incentive to sue, and non-beneficiary
outsiders cannot show a direct injury. Flast allows standing
in these cases so that tax- and expenditure-based violations
of the Establishment Clause do not go unremedied. The
Supreme Court has made the judgment that the values
embodied in the Case and Controversy Clause— separation
1
of powers and the adversary process —are sufficiently
1
See Flast v. Cohen, 392 U.S. 83, 94-95 (1968) (“Embodied in the
words ‘cases’ and ‘controversies’ are two complementary but
somewhat different limitations. In part those words limit
(continued...)
No. 05-1130 19
protected when a taxpayer makes a specific objection linked
to a specific exercise of the taxing and spending power on
the ground that it violates the Establishment Clause.
Indeed, a good illustration of Flast’s limited purpose is the
part of this case, no longer part of this appeal, in
which Freedom from Religion challenged specific grants
that it alleged were distributed preferentially to religious
organizations under the government’s faith-based pro-
grams. One of these grant programs was “Mentoring
Children of Prisoners,” established by Congress in the
Promoting Safe and Stable Families Amendments of 2001,
Pub. L. No. 107-133, 115 Stat. 2414 (2002). The program’s
purpose was to provide support for children with incarcer-
ated parents, and it expressly made eligible for funding
faith- and community-based organizations. An organization
called MentorKids USA applied for and received a grant
under the congressional program. With its stated mission to
“exalt the Lord Jesus Christ as the Son of God,” MentorKids
hired only Christians as mentors, and required its mentors
to give monthly reports on the progression of their mentee’s
“relationship with God.” R.53 at 9-10. On the allegation that
Congress had made public funds available to MentorKids,
the district court, quite properly, allowed taxpayer standing
to challenge the grant.
Without the Flast exception, it is unlikely that anyone
would have had standing to sue in such a situation. Cer-
1
(...continued)
the business of federal courts to questions presented in an
adversary context and in a form historically viewed as capable of
resolution through the judicial process. And in part those words
define the role assigned to the judiciary in a tripartite allocation of
power to assure that the federal courts will not intrude into areas
committed to the other branches of government.”)
20 No. 05-1130
tainly, MentorKids was not going to challenge the grant it
received. Similarly, non-sectarian community groups who
applied for, but were denied a grant under the same
program, would not have been able to satisfy the injury-in-
fact and redressibility requirements of conventional stand-
ing doctrine; their injury would have been indirect and their
allegations that they would have received funding but for
the preferential treatment of religious groups would have
2
been too speculative. Finally, an individual plaintiff who
came into direct contact with MentorKids and was offended
by the group’s religious message could not sue for violation
of the Establishment Clause because MentorKids is not a
state actor. Flast, therefore, remains necessary to allow
challenges to situations in which Congress makes no public
endorsement of religion but nevertheless supports a sectar-
ian cause through the transfer of public funds. See Flast, 392
U.S. at 103 (“Our history vividly illustrates that one of the
specific evils feared by those who drafted the Establishment
Clause and fought for its adoption was that the taxing and
spending power would be used to favor one religion over
another or to support religion in general.”); see also, e.g.,
Pulido v. Bennett, 860 F.2d 296, 297 (8th Cir. 1988) (allowing
2
Cf. Allen v. Wright, 468 U.S. 737, 757 (1984) (holding that parents
lacked standing to challenge tax-exempt status of discriminatory
private schools because it was too “speculative . . . whether
withdrawal of a tax exemption from any particular school would
lead the school to change its policies”); Simon v. Eastern Kentucky
Welfare Rights Org., 426 U.S. 26, 42 (1976) (denying standing to
challenge the tax-exempt status of hospitals who refused care to
indigents because the injury to plaintiffs was highly indirect and
“result[ed] from the independent action of some third party not
before the court”). Likewise, as the Court pointed out in Warth v.
Seldin, “the indirectness of the injury . . . may make it substantially
more difficult to meet the minimum requirement of Art. III.” 422
U.S. 490, 505 (1975).
No. 05-1130 21
taxpayer standing to bring an establishment clause chal-
lenge against a spending program that channeled funding
to parochial schools).
Because the Flast exception serves such a narrow purpose,
its application has been confined to its express terms. After
Schlesinger, Richardson and Valley Forge, to earn taxpayer
standing a plaintiff must bring an attack against a disburse-
ment of public funds made in the exercise of Congress’
taxing and spending power; focus on a program originating
in the executive branch will not suffice. See Valley Forge, 454
U.S. at 479 (“Flast limited taxpayer standing to challenges
directed only at exercises of congressional power”) (internal
quotation marks and alterations omitted); Schlesinger, 418
U.S. at 228 (denying standing because the taxpayer plaintiffs
“did not challenge an enactment under Art. I, § 8, but rather
the action of the Executive Branch”).
Bowen v. Kendrick, 487 U.S. 589 (1988), did not alter the
strictures on taxpayer standing. In Bowen, the Court upheld
taxpayer standing to lodge an Establishment Clause chal-
lenge against the Adolescent Family Life Act (“AFLA”), a
congressional spending program whose administration was
delegated to the Secretary of Health and Human Services.
Rejecting the Secretary’s argument that funds were distrib-
uted by an executive branch agency rather than by Con-
gress, the Court observed that “[t]he AFLA is at heart a
program of disbursement of funds pursuant to Congress’
taxing and spending powers, and appellees’ claims call into
question how the funds authorized by Congress are being
disbursed pursuant to the AFLA’s statutory mandate.” Id.
at 619-20. That executive officials had been delegated the
actual authority to write the checks did not matter. Id. at 619(“We do not think . . . that appellees’ claim that AFLA funds
are being used improperly by individual grantees is any less
a challenge to congressional taxing and spending power
22 No. 05-1130
simply because the funding authorized by Congress has
flowed through and been administered by the Secretary.”).
The touchstone of the Flast inquiry, according to Bowen, was
whether the Secretary had been “given authority under the
challenged statute to administer the spending program
that Congress had created.” Id. (emphasis added).
I cannot accept my colleagues’ contention that Bowen
broadens taxpayer standing so that it is sufficient for
plaintiffs to show merely that a congressional appropria-
tions statute enabled the executive branch to violate the
Establishment Clause. Such a standard makes virtually any
executive action subject to taxpayer suit. The executive
can do nothing without general budget appropriations from
Congress and the approach of my colleagues will permit an
individual citizen to challenge any action of the executive
with which he disagrees, as violative of the Establishment
Clause. Bowen simply did not sanction such a judicial
intrusion into the affairs of the executive at the request of an
individual who can assert no specific connection between
his status as a taxpayer and the executive decision. See
Bowen, 487 U.S. at 620 (“In this litigation there is still a
sufficient nexus between the taxpayer’s standing as tax-
payer and the congressional exercise of taxing and spending
power . . . .”). In short, my colleagues expand the narrow
concept of taxpayer standing to the point where it cannot be
distinguished from the citizen standing that the Supreme
Court has regarded, throughout the development of the
modern standing doctrine, as destructive of the case and
controversy limitation on the power of the federal courts to
intrude into the decision-making prerogatives of the
executive branch.
The majority’s position sets this circuit on a course
different from that of the other courts to have applied the
Flast exception after Bowen. The Court of Appeals for the
No. 05-1130 23
District of Columbia Circuit, when asked by municipal
taxpayers to prohibit the District of Columbia from expend-
ing public funds to oppose citizens’ initiatives, observed
that the “[Supreme] Court has never recognized federal
taxpayer standing outside [of Flast’s] narrow facts, and it
has refused to extend Flast to exercises of executive power.”
District of Columbia Common Cause v. District of Columbia, 858
F.2d 1, 3-4 (D.C. Cir. 1988) (citations omitted). Similarly, in
In re United States Catholic Conference, 885 F.2d 1020 (2d Cir.
1989), the Court of Appeals for the Second Circuit denied
taxpayer standing to pro-choice supporters who alleged that
the IRS, by granting tax-exempt status to the Catholic
church, had violated the Establishment Clause. The court
reasoned:
Plaintiffs in the instant case do not challenge Congress’
exercise of its taxing and spending power as embodied
in § 501(c)(3) of the [Tax] Code; they do not contend that
the Code favors the Church. . . . Instead, they argue that
the IRS, in allegedly closing its eyes to violations by the
Church, is disregarding the Code’s mandate and the
Constitution. The complaint centers on an alleged
decision made solely by the executive branch that in
plaintiffs’ view directly contravenes Congress’ aim. The
instant case is therefore distinguishable from [Bowen v.
Kendrick]. In that case, there was “a sufficient nexus
between the taxpayer’s standing as a taxpayer and the
congressional exercise of taxing and spending power,
notwithstanding the role the Secretary plays in adminis-
tering the statute.” Kendrick, 108 S. Ct. at 2580. Here,
there is no nexus between plaintiffs’ allegations and
Congress’ exercise of its taxing and spending power.
Hence, Kendrick does not alter the requirements of
taxpayer standing to allow the instant plaintiffs to
challenge how the IRS administers the Code.
24 No. 05-1130
Id. at 1028. In short, the Second Circuit squarely held that
the alleged executive branch misapplication of a statutory tax
exemption enacted by Congress under its Taxing and
Spending Power is, under prevailing Supreme Court
precedent, insufficient to support taxpayer standing. Like an
arguably illegal executive expenditure (like the one alleged
in this case), the misapplication of a tax exemption impacts
the congressional policy decision embodied in the statute.
It is not, however, an attack on Congress’ exercise of the
Taxing and Spending Power.
As these cases demonstrate, our sister circuits have
refused to interpret Bowen as affording taxpayer standing
based simply upon a showing that a statute enabled the
executive branch to violate the Establishment Clause. This
circuit ought to follow the same course and, in the proc-
ess, adhere to the principles set forth in the Supreme Court’s
case law. Accordingly, I respectfully dissent.
No. 05-1130 25
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-13-06