Hinrichs, Anthony v. Speaker House Rep IN ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-4604 & 05-4781
ANTHONY HINRICHS, HENRY GERNER,
LYNETTE HEROLD, et al.,
Plaintiffs-Appellees,
v.
SPEAKER OF THE HOUSE OF
REPRESENTATIVES OF THE
INDIANA GENERAL ASSEMBLY,
Defendant-Appellant.
____________
Appeals from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 05 C 813—David F. Hamilton, Judge.
____________
ARGUED SEPTEMBER 7, 2006—DECIDED OCTOBER 30, 2007
____________
Before RIPPLE, KANNE and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Four Indiana taxpayers, Anthony
Hinrichs, Henry Gerner, Lynette Herold and Francis
White Quigley, brought this action against the Speaker of
the House of Representatives of the Indiana General
Assembly, challenging the House’s practice of opening
each session with a prayer. The district court agreed
with the plaintiffs that the practice of legislative prayer as
implemented by the House violated the Establishment
2 Nos. 05-4604 & 05-4781
Clause and issued a permanent injunction. The Speaker
timely appealed and sought a stay of the district court’s
ruling pending full briefing before this court. We denied
the stay but noted that our decision was based only on a
preliminary understanding of the facts surrounding
Indiana’s practice. See Hinrichs v. Bosma, 440 F.3d 393 (7th
Cir. 2006). After briefing, oral argument and supple-
mental briefing, we now hold that the plaintiffs do not
have standing to maintain this action. We therefore
reverse the district court’s judgment and remand the
action with instructions to dismiss for want of jurisdiction.
I
BACKGROUND
A. Facts
Indiana’s legislative authority is vested in the Indiana
General Assembly, which is composed of the Senate and
the House of Representatives. The House of Representa-
tives meets in its chamber in the Indiana Statehouse,
which has seating for the representatives and an observa-
tion gallery for about 75 to 100 members of the public.
House Rule 10.2 calls for a prayer or invocation to be
given each meeting day before the House conducts any
business. For the 188 years prior to the time the plaintiffs
instituted this action, the Indiana House of Representa-
tives opened each day with an invocation. The invocation
occurs immediately after the Speaker’s call to order. No
legislative business takes place until the prayer is finished,
and no one is required to remain in the House chamber
Nos. 05-4604 & 05-4781 3
during the prayer.1 The invocation is delivered from the
Speaker’s stand, and, according to House rules, no one may
enter the Speaker’s stand without invitation from the
Speaker.
The invocation frequently is delivered by visiting
clergy who have volunteered to pray and are nominated
by a representative. On occasion, representatives have
sponsored clergy who do not share their own religious
affiliation. To nominate a member of the clergy, a represen-
tative fills out a “Minister of the Day” form setting forth
the dates when the clergy member is available. The repre-
sentative then submits the form to the Majority Caucus
Chair, who schedules the cleric to deliver the invocation.
No minister who has requested sponsorship ever has
been turned down.
Prior to the date on which the visiting clergy member
is to offer the invocation, a House staff member sends a
letter setting forth the logistical details of the visit. The
letter also states:
The invocation is to be a short prayer asking for guid-
ance and help in the matters that come before the
members. We ask that you strive for an ecumenical
prayer as our members, staff and constituents come
from different faith backgrounds. Thank you for your
consideration.
1
The parties stipulated that members of the public seated in
the balcony are “discourage[d] from leaving the balcony during
the Pledge of Allegiance or the Invocation so as to minimize
noise. However, if any individual indicates that he or she
objects to the prayer or Pledge or if the individual expresses a
desire to leave immediately the individual will be allowed to
leave freely.” R.17 at 1-2.
4 Nos. 05-4604 & 05-4781
R.16, Att. 2. No further guidance is provided and no re-
view of the content of the prayer is conducted prior to its
being given; typically, the Speaker does not know the
identity of the minister until a few minutes prior to his or
her introduction.2
When a visiting clergy member has not been designated
to give the prayer for a legislative session, a representative
has given the invocation. On such an occasion, the repre-
sentative does not receive guidance from anyone as-
sociated with the House concerning the form or content
of the prayer. No one associated with the House ever has
advised, corrected or admonished a minister or representa-
tive about the religious content of an invocation.
During the 2005 House session, the invocation was
delivered by priests, Protestant ministers, several represen-
tatives, a rabbi and an imam. Of the forty-five prayers
offered during this session for which text is available,
twenty-nine prayers referenced “Jesus” or “Christ”; others
invoked “God,” “Lord,” “Almighty God,” or “Heavenly
Father.” Id. Att. 6 at 3, 7 (prayers of January 10 and 13, 2005
and February 17, 2005). At least one prayer was not ad-
dressed to a specific deity. See id. at 16-17 (prayer of April
14, 2005).
Several prayers were overtly Christian in content. For
instance, one visiting cleric quoted several verses from a
book of the New Testament as part of his prayer, see id. at
8 (prayer of February 28, 2005); still others referred to the
“saving power of Jesus Christ,” id. at 13 (prayer of March
28, 2005), to “our lord and savior Jesus Christ,” id. at 14
2
An exception to this typical arrangement occurs when the
Speaker has sponsored the cleric of the day.
Nos. 05-4604 & 05-4781 5
(prayer of April 5, 2005), or to Jesus Christ as the son of
God, id. at 16 (prayer of April 11, 2005). Many of these
references were limited to the doxology at the end of the
prayer. There also were invocations given that were not
tied to any specific faith or denomination. For instance,
the prayer offered on April 14, 2005, referenced Buddha,
the Zen masters, a philosopher and a story from the Bible.
See id. at 16-17. Still others invoked only “God” or “Lord”
and simply requested wisdom for the Assembly or bless-
ings for the State. See, e.g., id. at 18 (prayer of April 19,
2005); id. at 14 (prayer of March 31, 2005). Some prayers
were offered as the personal prayer of the clergy member,
see, e.g., id. at 14-15 (prayer of April 5, 2005); others pur-
ported to be offered on behalf of those assembled, see, e.g.,
id. at 17 (prayer of April 18, 2005).
Although minimal, there were costs associated with
the practice of offering the invocation. The initial letter
sent to clergy cost $.54 per mailing. Before a session
commenced, the House members sometimes took photo-
graphs with the clergy scheduled to give the invocation.
These photographs cost $.68 per print and were mailed
at a cost of $1.60 per print. A thank-you letter some-
times was sent to visiting clergy, also at a cost of $.54
per mailing. Additionally, the sessions of the Indiana
House are broadcast on the Internet at a cost of $112.85
per hour, or $1.88 per minute; each prayer, whether of-
fered by a member of the clergy or by a representative,
lasted a few minutes. All funds used to cover these costs
came from the general budget; no funds were appropriated
specifically to cover these expenses.
6 Nos. 05-4604 & 05-4781
B. District Court Proceedings
On May 31, 2005, four Indiana taxpayers, Anthony
Hinrichs, Henry Gerner, Lynette Herold and Francis
White Quigley, brought this action for declaratory and
injunctive relief challenging the existing practice of the
Indiana House of Representatives to allow sectarian
prayers to be given prior to each legislative session. The
Speaker of the House of Representatives of the Indiana
General Assembly was named as the defendant. In the
complaint, the plaintiffs stated that they did not object to
the practice of legislative prayer, but claimed that the
practice of the Indiana House of Representatives vio-
lated the First Amendment because it allowed overtly
sectarian prayers to be offered. The Speaker answered
the complaint and, among other matters, asserted lack of
standing.
On October 28, 2005, the district court conducted a trial
on stipulated facts and written submissions of the parties.
On November 30, 2005, the district court entered a
final order declaring the Speaker’s practice of allowing
sectarian prayer to be violative of the Establishment Clause
and permanently enjoining the Speaker from “permitting
sectarian prayers to be offered as part of the official
proceedings of the House of Representatives.” R.31 at 1.3
3
Specifically, the district court decreed:
1. That defendant Speaker of the House of Representatives
of the Indiana General Assembly, in his official capacity,
is permanently enjoined from permitting sectarian prayers
to be offered as part of the official proceedings of the House
of Representatives. If the Speaker chooses to continue to
permit non-sectarian prayers as part of the official proceed-
(continued...)
Nos. 05-4604 & 05-4781 7
The district court first addressed the Speaker’s contention
that the plaintiffs lacked standing to bring this action. In
the district court’s view, the plaintiffs had established
taxpayer standing under the Supreme Court’s and this
court’s case law. It stated:
In this case the House’s prayer practice is indeed
paid for by taxpayer funds, through confirmation and
thank-you letters and photographs sent to clergy,
and additional web-streaming time. Though these
costs are not directly attributable to the content of
the invocations, they are directly attributable to the
practice of legislative prayer that plaintiffs challenge.
Because the plaintiffs are Indiana taxpayers who
have proven “a measurable appropriation or disburse-
ment of [public] funds occasioned solely by the activi-
ties complained of,” Doremus [v. Board of Education],
342 U.S. [429,] 434 [(1952)], all four plaintiffs have
standing under Article III to challenge the constitu-
tionality of the official legislative prayers.
R.30 at 24. The district court then turned to the question of
the constitutionality of the House’s “Minister of the Day”
3
(...continued)
ings, he shall advise all persons offering such prayers
(a) that the prayers must be non-sectarian and must not be
used to proselytize or advance any one faith or belief or to
disparage any other faith or belief, and (b) that the prayers
should not use Christ’s name or title or any other denomina-
tional appeal. This injunction applies to the Speaker, and to
his agents, servants, employees, and attorneys, and all other
persons in active concert with them who receive actual
notice of this injunction by personal service or otherwise.
R.31 at 1-2.
8 Nos. 05-4604 & 05-4781
program. It summarized its findings of fact and conclu-
sions of law accordingly:
[T]he evidence shows that the official prayers offered
to open sessions of the Indiana House of Representa-
tives repeatedly and consistently advance the beliefs
that define the Christian religion: the resurrection and
divinity of Jesus of Nazareth. The Establishment Clause
“means at the very least that government may not
demonstrate a preference for one particular sect or
creed (including a preference for Christianity over
other religions). ‘The clearest command of the Estab-
lishment Clause is that one religious denomination
cannot be officially preferred over another.’ ” County
of Allegheny v. American Civil Liberties Union, 492 U.S.
573, 605 (1989), quoting Larson v. Valente, 456 U.S. 228,
244 (1982). The sectarian content of the substantial
majority of official prayers in the Indiana House
therefore takes the prayers outside the safe harbor the
Supreme Court recognized for inclusive, non-sectarian
legislative prayers in Marsh v. Chambers, 463 U.S. 783(1983). Plaintiffs have standing as Indiana taxpayers to
bring their claims, and they are entitled to declaratory
and injunctive relief. This relief will not prohibit the
House from opening its session with prayers if it
chooses to do so, but will require that any official
prayers be inclusive and non-sectarian, and not ad-
vance one particular religion.
R.30 at 2.
After the court’s injunction issued, the Speaker filed a
motion pursuant to Federal Rule of Civil Procedure 59(e).
The Speaker claimed that the court’s injunction “mani-
fest[ed] clear legal error because it exceed[ed] the Court’s
jurisdiction in taxpayer-standing cases” and “because it
Nos. 05-4604 & 05-4781 9
[wa]s overly broad and d[id] not conform to the conduct
challenged or the relief requested by the Plaintiffs.” R.33
at 1. Additionally, the Speaker maintained that “the
injunction [wa]s vague and [gave] the Speaker of the House
no clear standard for application.” Id. The Speaker also
filed a motion to stay the enforcement of the injunction
pending the district court’s disposition of his Rule 59
motion. The plaintiffs opposed both motions.
On December 28, 2005, the court issued an order deny-
ing the Speaker’s Rule 59 motion.4 In its order, the dis-
trict court first rejected the Speaker’s argument “that the
court should give him the choice between either (a) modi-
fying the prayer practice to bring it within constitutional
bounds, or (b) eliminating the public spending but continu-
ing the unconstitutional pattern of sectarian Christian
prayers.” R.47 at 3. The district court stated:
To describe the alternatives is to answer the question.
The taxpayer plaintiffs have standing because of the
public expenditures, but the law authorizes the court
to order an end to the unconstitutional practice. The
injury that gives the taxpayer-plaintiffs standing is
the misuse of the public funds into which they pay
their taxes.
In taxpayer standing cases, the injury to the plaintiff
may be remedied by enjoining the expenditure of
public funds, but may also be remedied by enjoining
the unconstitutional practice, especially where the
constitutional issues do not depend on the expendi-
ture of public funds.
Id. at 3-4 (citations omitted).
4
This order rendered moot the Speaker’s motion to stay.
10 Nos. 05-4604 & 05-4781
The district court then turned to the Speaker’s challenges
to the terms of the injunction. The district court disagreed
with the Speaker that the injunction should have been
limited to opening prayers:
The plaintiffs challenged the House’s practice of
official prayers conducted under House Rule 10, which
calls for a prayer after the Speaker calls the House to
order and before the Pledge of Allegiance. As noted,
plaintiffs showed that the practice of inviting clergy
or House members to offer the prayer has produced a
pattern of sectarian and exclusionary Christian prayers.
If the court had limited the injunction to prayers
offered pursuant to House Rule 10 as it currently exists,
the injunction would not have affected, for example,
an amended rule that would switch the order of the
Pledge of Allegiance and the prayer, or a practice of
sectarian prayer at the end of each session instead of
the beginning.
Id. at 7-8.
Finally, the district court addressed the Speaker’s conten-
tion that “the injunction is too vague to give him fair notice
of what he is required to do to comply with it.” Id. at 9.
Although the district court believed that the “injunction
here [wa]s sufficiently specific,” it nevertheless answered
some of the Speaker’s questions “because of the larger
public interests at stake.” Id. at 10. The court explained
that “[t]he injunction is not limited to sectarian Christian
prayers”; this simply was the focus of the court’s decision
because “the evidence here shows a pattern of Christian
prayer.” Id. at 12. The court also elaborated on what
would constitute prayers that “are sectarian in the Chris-
tian tradition,” specifically those that “proclaim or other-
wise communicate the beliefs that Jesus of Nazareth
Nos. 05-4604 & 05-4781 11
was the Christ, the Messiah, the Son of God, or the Savior,
or that he was resurrected, or that he will return on Judg-
ment Day or is otherwise divine.” Id. at 16. With that
clarification, the court denied the motion to alter or
amend the judgment.
The Speaker timely appealed to this court.
II
DISCUSSION
Before we turn to the substantive claims, we first must
address the “threshold jurisdictional question” of whether
the plaintiffs possess the requisite standing to pursue this
action. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
102 (1998). The party “asserting federal jurisdiction” must
“carry the burden of establishing [its] standing under
Article III.” DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854,
1861 (2006).
When we first approached this issue on the Speaker’s
motion to stay, we noted that, in order to establish tax-
payer standing—the only basis for standing asserted
here5—the plaintiffs “must demonstrate that the challenged
5
As noted by our dissenting colleague, a pecuniary interest is
not the only means of establishing standing. See dissent at 43-44.
In the context of an alleged Establishment Clause violation, we
have stated that “allegations of direct and unwelcome exposure
to a religious message” are sufficient to show the injury-in-fact
necessary to support standing. Doe v. County of Montgomery, Ill.,
41 F.3d 1156, 1159 (7th Cir. 1994); see also ACLU v. City of St.
Charles, 794 F.2d 265, 268-69 (7th Cir. 1986). The plaintiffs
(continued...)
12 Nos. 05-4604 & 05-4781
program is supported by monies raised through taxes and
that the use of those monies exceeds a specific constitu-
tional limitation on the use of public funds, such as the
First Amendment’s prohibition on laws respecting an
establishment of religion.” Hinrichs, 440 F.3d at 396. Since
briefing in this case was completed, the Supreme Court
handed down its decision in Hein v. Freedom from Religion
Foundation, Inc., 127 S. Ct. 2553 (2007), in which the
Court offered significant guidance concerning the breadth
of its taxpayer standing jurisprudence. We invited the
parties to submit supplemental briefs discussing the im-
pact of Hein on the plaintiffs’ standing in this case.
In light of Hein, the Speaker reasserts that the plaintiffs
lack standing here. According to the Speaker, the Supreme
Court made clear in DaimlerChrsyler Corp. v. Cuno, 126 S. Ct.
1854, 1863 (2006), that the taxpayer standing requirements
for federal taxpayers apply with equal force to state
taxpayers. Accordingly, Hein directly applies to this action
and “forecloses taxpayer standing in this case because the
Plaintiffs have not identified—and cannot identify—any
5
(...continued)
initially asserted both standing as taxpayers and, with respect
to Mr. Hinrichs, standing as individual subject to “direct and
unwelcome exposure” to the House prayers as a result of his
job as a lobbyist. The plaintiffs, however, abandoned this
alternative basis for standing in the district court when
Mr. Hinrichs ceased being a lobbyist and informed the court
that “he ha[d] no plans to lobby for any organization or entity
in the Indiana General Assembly.” R. 29 at 1. Thereafter, the
plaintiffs relied exclusively on their status as taxpayers to
support standing. Consequently, in order to maintain their
action, the plaintiffs must meet the requirements for taxpayer
standing set forth below.
Nos. 05-4604 & 05-4781 13
specific legislative appropriations that ‘expressly authorize,
direct or even mention the expenditures of which [the
plaintiffs] complain.’ ” Appellant’s Supp. Br. at 5. For their
part, the plaintiffs maintain that Hein did nothing to
disturb the holding of Flast v. Cohen, 392 U.S. 83 (1968), or
of Doremus v. Board of Education, 342 U.S. 429, 434-45 (1952),
which, unlike Flast, dealt explicitly with the question of
state taxpayer standing. According to the plaintiffs, all that
Doremus and Flast require of state taxpayers is a “good-
faith pocketbook” injury, that is, “a financial interest that is,
or is threatened to be, injured by the unconstitutional
conduct.” Doremus, 342 U.S. at 434-35; see Appellees’ Supp.
Br. at 4.
Upon consideration of the Court’s disposition in Hein,
and the parties’ supplemental arguments, we believe
that Hein requires us to revisit our preliminary deter-
mination that the plaintiffs possess the requisite stand-
ing to maintain this action. In order to explain our deter-
mination, a more plenary discussion of taxpayer stand-
ing, especially taxpayer standing to challenge alleged
Establishment Clause violations, is in order.
A. Taxpayer Standing Prior to Flast v. Cohen
Our discussion must begin with the Supreme Court’s
initial pronouncements on taxpayer standing set forth in
Frothingham v. Mellon, decided with Massachusetts v.
Mellon, 262 U.S. 447 (1923). In that case, the plaintiffs, as
federal taxpayers, challenged the constitutionality of the
Maternity Act on the grounds that the appropriations
authorized by the Act were “for purposes not national, but
local to the states,” and the effect of the statute was to
take the plaintiffs’ property, namely their tax dollars,
14 Nos. 05-4604 & 05-4781
without due process of law. Id. at 479-81. The Court
determined that the interests of a federal taxpayer were
not sufficiently direct or certain to support a general
challenge to a congressional appropriations statute: “His
interest in the moneys of the Treasury—partly realized
from taxation and partly from other sources—is shared
with millions of others; is comparatively minute and
indeterminable; and the effect upon future taxation, of any
payment out of the funds, so remote, fluctuating and
uncertain, that no basis is afforded for an appeal to the
preventive powers of a court of equity.” Id. at 487. The
Court explained that passing on the constitutionality of a
statute, absent a plaintiff who has suffered a direct and
concrete injury as a result of a congressional enactment,
would result in a violation of the separation of powers:
We have no power per se to review and annul acts
of Congress on the ground that they are unconstitu-
tional. That question may be considered only when the
justification for some direct injury suffered or threat-
ened, presenting a justiciable issue, is made to rest
upon such an act. Then the power exercised is that of
ascertaining and declaring the law applicable to the
controversy. . . . The party who invokes the power
must be able to show, not only that the statute is
invalid, but that he has sustained or is immediately
in danger of sustaining some direct injury as the re-
sult of its enforcement, and not merely that he suffers
in some indefinite way in common with people gener-
ally. If a case for preventive relief be presented the
court enjoins, in effect, not the execution of the
statute, but the acts of the official, the statute notwith-
standing. Here the parties plaintiff have no such case.
Looking through forms of words to the substance of
Nos. 05-4604 & 05-4781 15
their complaint, it is merely that officials of the execu-
tive department of the government are executing and
will execute an act of Congress asserted to be unconsti-
tutional; and this we are asked to prevent. To do so
would be, not to decide a judicial controversy, but to
assume a position of authority over the govern-
mental acts of another and co-equal department, an
authority which plainly we do not possess.
Id. at 488-89.
In articulating the rationale for denying standing to
federal taxpayers, the Court noted that the interest of
federal taxpayers with respect to the federal treasury
were “very different” from that of a municipal taxpayer
challenging an allegedly illegal use of municipal funds:
The interest of a taxpayer of a municipality in the
application of its moneys is direct and immediate
and the remedy by injunction to prevent their misuse
is not inappropriate. . . . The reasons which support the
extension of the equitable remedy to a single taxpayer
in such cases are based upon the peculiar relation of
the corporate taxpayer to the corporation, which is
not without some resemblance to that subsisting be-
tween stockholder and private corporation.
Id. at 486-87.
The Court next addressed taxpayer standing in Doremus.
There, state taxpayers challenged a New Jersey statute
requiring the recitation of five verses of the Old Testament
at the beginning of each school day; the activity was not
“supported by any separate tax or paid for from any
particular appropriation,” nor did “it add[] any sum
whatever to the cost of conducting school.” Doremus, 342
U.S. at 433.
16 Nos. 05-4604 & 05-4781
In deciding whether the taxpayers could pursue their
challenge, the Court first reiterated its statements from
prior cases that “the interests of a [federal taxpayer] in the
moneys of the federal treasury are too indeterminable,
remote, uncertain and indirect to furnish a basis for an
appeal to the preventive powers of the Court over their
manner of expenditure.” Id. at 433. The Court went on to
observe that what it had said “of a federal statute” was
“equally true when a state Act [wa]s assailed: ‘The party
who invokes the power must be able to show, not only that
the statute is invalid but that he has sustained or is im-
mediately in danger of sustaining some direct injury as
a result of its enforcement, and not merely that he suf-
fers in some indefinite way in common with people
generally.’ ” Id. at 434 (quoting Frothingham, 262 U.S. at
488). The Court then held that the case or controversy
requirement is met by a state taxpayer only when the
taxpayer brings “a good-faith pocketbook action.” Id. It is
a question, the Court stated, “of possession of the requisite
financial interest that is, or is threatened to be, injured by
the unconstitutional conduct.” Id. at 435. Finding this
financial interest lacking, the Court held that the state
taxpayers could not maintain their challenge to the statute.
B. Flast v. Cohen
In Flast, the Court considered whether there were any
exceptions to the bar against taxpayer standing erected
in Frothingham. Specifically, the Court had to decide
“whether the Frothingham barrier should be lowered when
a taxpayer attacks a federal statute on the ground that it
violates the Establishment and Free Exercise Clauses of the
First Amendment.” Id. at 85. At issue in Flast was the
constitutionality of the Elementary and Secondary Educa-
Nos. 05-4604 & 05-4781 17
tion Act of 1965, Pub. L. No. 89-10, 79 Stat. 27 (codified at
20 U.S.C. § 241a et seq. (1964)), which, among other mat-
ters, “appropriated [funds] . . . to finance instruction in
reading, arithmetic, and other subjects in religious
schools, and to purchase textbooks and other instructional
materials for use in such schools.” Id. at 85-86.
In addressing the standing issue, the Court first turned
to its holding in Frothingham. In that case, the Court
recounted, it had
noted that a federal taxpayer’s “interest in the moneys
of the treasury . . . is comparatively minute and inde-
terminable” and that “the effect upon future taxation,
of any payment out of the (Treasury’s) funds, . . . (is)
remote, fluctuating and uncertain.” As a result, the
Court ruled that the taxpayer had failed to allege the
type of “direct injury” necessary to confer standing.
Id. at 92 (quoting Frothingham, 262 U.S. at 487-88). The
Court then observed that its opinion in Frothingham had
engendered some confusion concerning the legal and
philosophical bases for standing. This confusion, the Court
continued, suggested that it “should undertake a fresh
examination of the limitations upon standing to sue in a
federal court and the application of those limitations to
taxpayer suits.” Id. at 94.
The Court, however, did not turn immediately to the
concept of standing, but first examined the limitations
placed on federal courts by the case or controversy require-
ment of Article III. Justiciability, the Court explained,
was not merely prudential, but firmly rooted in Article III:
[T]he implicit policies embodied in Article III, and not
history alone, impose the rule against advisory opin-
ions on federal courts. When the federal judicial power
18 Nos. 05-4604 & 05-4781
is invoked to pass upon the validity of actions by the
Legislative and Executive Branches of the Government,
the rule against advisory opinions implements the
separation of powers prescribed by the Constitution
and confines federal courts to the role assigned them
by Article III.
Id. at 96. However, the Court also acknowledged that “[t]he
‘many subtle pressures’ which cause policy considerations
to blend into the constitutional limitations of Article III
make the justiciability doctrine one of uncertain and
shifting contours.” Id. at 97 (footnote omitted).
The Court also noted that, as “an aspect of justiciability,”
“standing is surrounded by the same complexities and
vagaries that inhere in justiciability.” Id. at 98. However,
“[d]espite the complexities and uncertainties,” the Court
continued,
some meaningful form can be given to the jurisdictional
limitations placed on federal court power by the con-
cept of standing.
The fundamental aspect of standing is that it focuses
on the party seeking to get his complaint before a
federal court and not on the issues he wishes to have
adjudicated. The “gist of the question of standing” is
whether the party seeking relief has “alleged such a
personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely
depends for illumination of difficult constitutional
questions.”
Id. at 99 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962))
(emphasis added). This requirement of a “proper party”
was necessary so that “federal courts w[ould] not be asked
Nos. 05-4604 & 05-4781 19
to decide ‘ill-defined controversies over constitutional
issues,’ ” or cases which were “hypothetical” or “abstract.”
Flast, 392 U.S. at 100 (quoting United Pub. Workers v.
Mitchell, 330 U.S. 75, 90 (1947), and Aetna Life Ins. Co. v.
Haworth, 300 U.S. 227, 240 (1937), respectively). The
Court then summarized the relationship between stand-
ing and Article III jurisdiction:
Thus, in terms of Article III limitations on federal court
jurisdiction, the question of standing is related only
to whether the dispute sought to be adjudicated will
be presented in an adversary context and in a form
historically viewed as capable of judicial resolution. It
is for that reason that the emphasis in standing prob-
lems is on whether the party invoking federal court
jurisdiction has “a personal stake in the outcome of
the controversy,” and whether the dispute touches
upon “the legal relations of parties having adverse
legal interests.”
Id. at 101 (quoting Baker, 369 U.S. at 204, and Aetna Life Ins.
Co., 300 U.S. at 240-41, respectively).
This requirement did not eliminate the possibility that a
federal taxpayer may have “the requisite personal stake
in the outcome” of a particular case necessary to estab-
lish standing. Flast, 392 U.S. at 101. Indeed, the Court
stated that the requisite stake could be established under
the following circumstances:
The nexus demanded of federal taxpayers has two
aspects to it. First, the taxpayer must establish a logical
link between that status and the type of legislative
enactment attacked. Thus, a taxpayer will be a proper
party to allege the unconstitutionality only of exercises
of congressional power under the taxing and spend-
20 Nos. 05-4604 & 05-4781
ing clause of Art. I, § 8, of the Constitution. It will
not be sufficient to allege an incidental expenditure of
tax funds in the administration of an essentially reg-
ulatory statute. This requirement is consistent with
the limitation imposed upon state-taxpayer standing
in federal courts in Doremus v. Board of Education, 342
U.S. 429 (1952). Secondly, the taxpayer must establish
a nexus between that status and the precise nature of
the constitutional infringement alleged. Under this
requirement, the taxpayer must show that the chal-
lenged enactment exceeds specific constitutional
limitations imposed upon the exercise of the congres-
sional taxing and spending power and not simply that
the enactment is generally beyond the powers dele-
gated to Congress by Art. I, § 8. When both nexuses
are established, the litigant will have shown a tax-
payer’s stake in the outcome of the controversy and
will be a proper and appropriate party to invoke a
federal court’s jurisdiction.
Id. at 102-03.
Turning then to the specific plaintiffs in the case, the
Court held that each nexus had been established. With
respect to the first nexus, the taxpayers’ challenge was
made to an exercise of Congress’ taxing and spending
power under Article I, Section 8 of the United States
Constitution. With respect to the second nexus, the Court
noted that the taxpayers alleged that the challenged
expenditures violated the Establishment Clause, which
operated as a specific limitation on Congress’ spending
power: “Our history vividly illustrates that one of the
specific evils feared by those who drafted the Establish-
ment Clause and fought for its adoption was that the tax-
ing and spending power would be used to favor one
Nos. 05-4604 & 05-4781 21
religion over another or to support religion in general.” Id.
at 103.
The Court then summarized its holding accordingly:
[W]e hold that a taxpayer will have standing con-
sistent with Article III to invoke federal judicial
power when he alleges that congressional action
under the taxing and spending clause is in derogation
of those constitutional provisions which operate to
restrict the exercise of the taxing and spending power.
The taxpayer’s allegation in such cases would be that
his tax money is being extracted and spent in viola-
tion of specific constitutional protections against
such abuses of legislative power. Such an injury is
appropriate for judicial redress, and the taxpayer
has established the necessary nexus between his
status and the nature of the allegedly unconstitutional
action to support his claim of standing to secure
judicial review. Under such circumstances, we feel
confident that the questions will be framed with the
necessary specificity, that the issues will be con-
tested with the necessary adverseness and that the
litigation will be pursued with the necessary vigor
to assure that the constitutional challenge will be
made in a form traditionally thought to be capable of
judicial resolution.
Id. at 105-06.
C. Standing Cases after Flast
Over the next few years, litigants tested Flast’s bound-
aries by attempting to use taxpayer standing to chal-
lenge different kinds of federal governmental actions. For
22 Nos. 05-4604 & 05-4781
instance, in Valley Forge Christian College v. Americans United
for Separation of Church and State, 454 U.S. 464 (1982),
plaintiffs sought to challenge as violative of the Establish-
ment Clause the transfer of federal property by the De-
partment of Health, Education and Welfare to a sectarian
institution. The Court, however, held that the plaintiffs
lacked standing to maintain their action because “Flast
limited taxpayer standing to challenges directed ‘only [at]
exercises of congressional power’ ” under the Taxing and
Spending Power. Valley Forge, 454 U.S. at 479 (quoting Flast,
392 U.S. at 102). Similarly, in United States v. Richardson, 418
U.S. 166 (1973), the Court held that a taxpayer did not have
standing to pursue his action which sought a detailed
accounting of expenditures by the Central Intelligence
Agency. According to the Court, the taxpayer had not tied
his status as a taxpayer to the “taxing or spending power,”
nor had he claimed that appropriated funds were being
spent in violation of a specific constitutional limitation on
that power. Id. at 175.
The Court has been equally unwilling to see Flast as a
means of extending state taxpayer standing. As noted
above, the Court previously had suggested in Doremus that
the limitations on federal taxpayer standing were equally
applicable to state taxpayers challenging state actions.6 The
6
In Doremus v. Board of Education, 342 U.S. 429 (1952), the Court
stated:
[W]e reiterate what the Court said of a federal statute as
equally true when a state Act is assailed: “The party who
invokes the power must be able to show, not only that the
statute is invalid, but that he has sustained or is immedi-
ately in danger of sustaining some direct injury as a re-
(continued...)
Nos. 05-4604 & 05-4781 23
Court again focused on the question of state taxpayer
standing in Cuno.7 In Cuno, state taxpayers sought to
challenge actions by the city of Toledo and the State of
Ohio to encourage the manufacture of Jeeps in the Toledo
area, specifically through offering local and state tax
benefits for new investment. The taxpayers alleged that
the granting of tax credits under these circumstances
violated the Commerce Clause. Without addressing the
parties’ standing, the Sixth Circuit reached the merits of
the plaintiffs’ claims and held that the tax credit was
invalid. The Supreme Court granted review, but re-
quested that the parties also “address whether [the]
plaintiffs have standing to challenge the franchise tax credit
in this litigation.” Id. at 1860.
In its opinion, the Court noted that it was asked to decide
“an important question of constitutional law concern-
ing the Commerce Clause.” Id. at 1861. Before it turned to
that question, however, it had to determine whether the
“plaintiffs, as the parties now asserting federal jurisdic-
tion, [had] carr[ied] the burden of establishing their
standing under Article III.” Id. (internal citations omitted).
In addressing the standing issue, the Court reviewed the
roots of its taxpayer standing jurisprudence in Frothingham:
6
(...continued)
sult of its enforcement, and not merely that he suffers in
some indefinite way in common with people generally.”
Id. at 434 (quoting Frothingham v. Mellon, decided with Massachu-
setts v. Mellon, 262 U.S. 447, 488 (1923)).
7
Neither the district court, nor this court in considering the
motion for stay, had the benefit of this decision.
24 Nos. 05-4604 & 05-4781
In rejecting a claim that improper federal appropria-
tions would “increase the burden of future taxation
and thereby take [the plaintiff’s] property without due
process of law,” the Court observed that a federal
taxpayer’s “interest in the moneys of the Treasury . . .
is shared with millions of others; is comparatively
minute and indeterminable; and the effect upon future
taxation, of any payment out of the funds, so remote,
fluctuating and uncertain, that no basis is afforded
for an appeal to the preventive powers of a court of
equity.”
Id. at 1862 (quoting Frothingham, 262 U.S. at 486-87). The
Court then noted that the “rationale for rejecting federal
taxpayer standing applies with undiminished force to
state taxpayers.” Cuno, 126 S. Ct. at 1863. The application
of the principle to the states was indicated, the Court
stated, in Doremus:
In that case, we noted our earlier holdings that “the
interests of a taxpayer in the moneys of the federal
treasury are too indeterminable, remote, uncertain and
indirect” to support standing to challenge “their
manner of expenditure.” We then “reiterate[d]” what
we had said in rejecting a federal taxpayer challenge
to a federal statute “as equally true when a state Act
is assailed: ‘The [taxpayer] must be able to show . . .
that he has sustained . . . some direct injury . . . and not
merely that he suffers in some indefinite way in com-
mon with people generally.’ ”
Id. (quoting Doremus, 342 U.S. at 433-34).
Indeed, the Court noted that failure to extend the bar
against general taxpayer standing to state taxpayers
challenging appropriations made by state statutes could
raise serious federalism issues:
Nos. 05-4604 & 05-4781 25
Federal courts may not assume a particular exercise of
this state fiscal discretion in establishing standing;
a party seeking federal jurisdiction cannot rely on
such “[s]peculative inferences . . . to connect [his]
injury to the challenged actions of [the defendant],”
Simon [v. Eastern Kentucky Welfare Rights Org.], 426 U.S.
[26, 45 (1976)] . . . . Indeed, because state budgets
frequently contain an array of tax and spending pro-
visions, any number of which may be challenged on a
variety of bases, affording state taxpayers standing
to press such challenges simply because their tax
burden gives them an interest in the state treasury
would interpose the federal courts as “ ’virtually
continuing monitors of the wisdom and soundness’ ” of
state fiscal administration, contrary to the more modest
role Article III envisions for federal courts. See [Allen v.
Wright, 468 U.S. 737, 760-61 (1984)] (quoting Laird v.
Tatum, 408 U.S. 1, 15 (1972)).
Cuno, 126 S. Ct. at 1864.
Thus, the Court concluded, “we hold that state tax-
payers have no standing under Article III to challenge
state tax or spending decisions simply by virtue of their
status as taxpayers.” Id. at 1864. Finally, the Court rejected
the plaintiffs’ attempts to analogize their challenge under
the Commerce Clause to the Establishment Clause violation
alleged in Flast. The Court believed that the broad applica-
tion of Flast urged by the plaintiffs “would be quite at odds
with its narrow application in our precedent and Flast’s
own promise that it would not transform federal courts
into forums for taxpayers’ ‘generalized grievances.’ ” Id. at
1865 (quoting Flast, 392 U.S. at 106).
26 Nos. 05-4604 & 05-4781
D. Hein v. Freedom from Religion Foundation
It is against this jurisprudential framework that we
must view the Supreme Court’s decision in Hein and
consider its application to the present case. In Hein, federal
taxpayers challenged part of the President’s Faith Based
and Community Initiatives program as violative of the
First Amendment’s Establishment Clause. The plaintiffs
maintained that they possessed taxpayer standing to
challenge the program because funds from the federal
treasury, specifically “general Executive Branch appro-
priations,” Hein, 127 S. Ct. at 2559, were used to fund
the initiative. A divided panel of this court determined
that the plaintiffs had shown the necessary injury under
Flast, and its progeny, to establish taxpayer standing.
Specifically, the majority held that:
The difference, then, between this case on the one hand
and Flast and [Bowen v.] Kendrick[, 487 U.S. 589 (1988),]
on the other is that the expenditures in those cases
were pursuant to specific congressional grant pro-
grams, while in this case, there is no statutory program,
just the general “program” of appropriating some
money to executive-branch departments without
strings attached. The difference cannot be controlling.
Freedom from Religion Found., Inc. v. Chao, 433 F.3d 989, 994
(7th Cir. 2006). The Supreme Court disagreed. After
reiterating the test for taxpayer standing set forth in Flast,
see Flast, 392 U.S. at 102-03, the plurality determined that
the difference between a specific congressional enact-
ment authorizing the expenditure of funds and an expendi-
ture made from general funds appropriated to the Execu-
tive Branch was a critical one: The necessary link between
“congressional action and constitutional violation that
Nos. 05-4604 & 05-4781 27
supported taxpayer standing in Flast [wa]s missing.” Hein,
127 S. Ct. at 2566. The plurality explained that the
[r]espondents do not challenge any specific congressio-
nal action or appropriation; nor do they ask the Court
to invalidate any congressional enactment or legisla-
tively created program as unconstitutional. That is
because the expenditures at issue here were not made
pursuant to any Act of Congress. Rather, Congress
provided general appropriations to the Executive
Branch to fund its day-to-day activities. These appro-
priations did not expressly authorize, direct, or even
mention the expenditures of which respondents
complain. Those expenditures resulted from execu-
tive discretion, not congressional action.
Id. at 2566 (footnote omitted). Consequently, the plurality
concluded that “this case falls outside the ‘narrow excep-
tion’ that Flast ‘created to the general rule against taxpayer
standing established in Frothingham.’ ” Id. at 2568 (quoting
Kendrick, 487 U.S. at 618). “Because the expenditures that
respondents challenge were not expressly authorized or
mandated by any specific congressional enactment,” the
Justices in the plurality explained, “respondents’ lawsuit
is not directed at an exercise of congressional power, and
thus lacks the requisite ‘logical nexus’ between taxpayer
status ‘and the type of legislative enactment attacked.’ ”
Hein, 127 S. Ct. at 2568 (quoting Flast, 392 U.S. at 102)
(additional citations omitted).
E. Application
We believe that there are several guiding principles to
take away from the cases we just have discussed. First, the
general rule, articulated first in Frothingham and reiterated
28 Nos. 05-4604 & 05-4781
most recently in Hein, is that federal taxpayers may not
lodge constitutional challenges against congressional ap-
propriations. The exception to the general rule set forth
in Frothingham is a narrow one: Indeed, the exception
only applies when the taxpayer has established a “logical
link between [his taxpayer] status and the type of legisla-
tive enactment attacked” as well as “a nexus between that
status and the precise nature of the constitutional infringe-
ment alleged.” Flast, 392 U.S. at 102-03. Second, the nexus
between the plaintiff’s taxpayer status and the legisla-
tive enactment must be a direct one. The plurality of
the Court made clear in Hein that only “expenditures made
pursuant to an express congressional mandate and a
specific congressional appropriation” met the first nexus
requirement; the plurality rejected the plaintiffs’ claim
that any “expenditure of government funds in violation
of the Establishment Clause” would meet this requirement.
See Hein, 127 S. Ct. at 2565 (internal quotation marks
omitted). In the context of an alleged Establishment Clause
violation, the nexus requirement is not met absent “the
very ‘extract[ion] and spen[ding]’ of ‘tax money’ in aid
of religion.” Cuno, 126 S. Ct. at 1865 (quoting Flast, 392 U.S.
at 106). Finally, state taxpayers are held to the same
standing requirements as federal taxpayers. They must
establish the requisite nexus between their status and the
challenged enactment in order to meet the test articulated
in Flast. Anything less “would interpose the federal courts
as ‘ “virtually continuing monitors of the wisdom and
soundness” ’ of state fiscal administration, contrary to the
more modest role Article III envisions for federal courts.”
Cuno, 126 S. Ct. at 1864 (quoting Allen, 468 U.S. at 760-61).
With these principles in mind, we turn to the standing
claim made by the plaintiffs.
Nos. 05-4604 & 05-4781 29
In the present case, the plaintiffs are challenging the
practice of legislative prayer as implemented by the
Indiana House of Representatives. It is clear from the
parties’ stipulations that Indiana’s practice consists of a
“Minister of the Day” program that involves the offering
of a prayer by a member of the clergy with representa-
tives filling in to offer the invocation only when “no cleric
[is] present.” R.16 at 3. The program, as it is presently
administered, is not mandated by statute. The origin of
the practice is House Rule 10.2, and that rule merely
provides that a prayer or invocation be given each meet-
ing day before the House conducts any business. The
manner in which the program is currently administered
is a matter of House tradition, implemented at the dis-
cretion of the Speaker. Although there is some minimal
amount of funds expended in the administration of the
program, the plaintiffs have not pointed to any specific
appropriation of funds by the legislature to implement
the program. Furthermore, other than the costs of web-
casting, the only costs incurred are postage for the send-
ing of thank-you letters and pictures. These costs not
only are unrelated to the content of the prayers offered,
they are unnecessary for the administration of the “Minis-
ter of the Day” program.
Under these circumstances, we simply cannot con-
clude that the nexus requirements of Flast, as explained in
Hein, have been met. The plaintiffs have not tied their
status as taxpayers to the House’s allegedly unconstitu-
tional practice of regularly offering a sectarian prayer. They
have not shown that the legislature has extracted from
them tax dollars for the establishment and implementa-
tion of a program that violates the Establishment Clause.
The appropriations, which cover the incidental costs of the
program, “did not expressly authorize, direct, or even
30 Nos. 05-4604 & 05-4781
mention the expenditures,” Hein, 127 S. Ct. at 2566, atten-
dant to the “Minister of the Day” program. Instead, the
plaintiffs allege only an “ ’expenditure of government
funds in violation of the Establishment Clause,’ ” which
the Court explicitly rejected as inadequate in Hein. Id. at
2565 (internal citations omitted).8
Despite the lack of specific direction by the state legisla-
ture to establish the Minister of the Day program and the
lack of specific appropriations dedicated to the program,
the plaintiffs maintain that Hein does not require this
court to reconsider the preliminary conclusion of the stay
panel that the plaintiffs possessed standing to maintain this
8
The dissent asserts that the requisite connection between the
allegedly unconstitutional practice and the expenditure of
funds is established by the initial adoption of House Rule 10.2
in conjunction with the House’s later action in passing a bud-
get, which included appropriations for the general operations of
the House. We do not believe these two actions satisfy the
requirement, set forth in Hein, that the challenged expenditures
be “expressly authorized or mandated” by a “specific con-
gressional enactment.” Hein v. Freedom from Religion Foundation,
Inc., 127 S. Ct. 2553, 2568 (2007); see also id. at 2566 (finding the
requisite nexus missing because “[t]hese appropriations did
not expressly authorize, direct, or even mention the expendi-
tures of which respondents complain”). The plaintiffs do not
challenge Rule 10.2; indeed, they acknowledge the constitution-
ality of some form of legislative prayer. Instead, it is the present
practice of employing a minister of the day, and the resulting
sectarian prayers, that the plaintiffs seek to enjoin. However,
as demonstrated above, there is no specific appropriation
either for Rule 10.2 or for the Minister of the Day program.
Absent such an appropriation, the necessary link between the
taxpayer and the expenditure for the allegedly unconstitutional
practice has not been established.
Nos. 05-4604 & 05-4781 31
action. The plaintiffs note that the Supreme Court in Hein
did not disturb its holding in Flast: “We do not extend Flast,
but we also do not overrule it. We leave Flast as we found
it.” Id. at 2571-72. Because this court’s initial determination
was based on Flast (and case law interpreting Flast), the
plaintiffs urge that Hein leaves undisturbed the stay panel’s
standing determination. We cannot agree.
Although the Supreme Court’s plurality characterized its
opinion as effecting no change in its view of the law of
taxpayer standing, the plurality’s decision, especially
when read with Cuno, clarified significantly the law of
taxpayer standing for the lower federal courts. For in-
stance, our treatment of taxpayer standing at the time
we addressed the Speaker’s motion for stay articulated a
more malleable vision of Flast than the one articulated by
the plurality in Hein. In our earlier treatment, we stated:
“Both parties accept that, in order to have standing as a
taxpayer, a person must demonstrate that the chal-
lenged program is supported by monies raised through
taxes and that the use of those monies exceeds a specific
constitutional limitation on the use of public funds, such as
the First Amendment’s prohibition on laws respecting an
establishment of religion.” Hinrichs, 440 F.3d at 396. Hein,
however, explains that the “use” of funds for the allegedly
unconstitutional program, without more, is not sufficient
to meet the nexus required by Flast. Instead, it is the
appropriation of those funds for the allegedly unconstitu-
tional purpose that provides the link between taxpayer
and expenditure necessary to support standing.9
9
The plaintiffs also argue that “this Court has also consistently
acknowledged that Flast gives a taxpayer standing to challenge
any type of state or local ‘tax dollar expenditures that allegedly
(continued...)
32 Nos. 05-4604 & 05-4781
9
(...continued)
contribute to Establishment Clause violations. Flast v. Cohen.’ ”
Appellees’ Supp. Br. at 5 (quoting Gonzales v. North Township of
Lake County, Indiana, 4 F.3d 1412, 1416 (7th Cir. 1993)). However,
as the plaintiffs acknowledge, the case on which they rest this
proposition, Gonzales, concerns the standing of municipal tax-
payers to challenge municipal expenditures. As already noted,
since its first pronouncements on taxpayer standing, the
Supreme Court has distinguished between the standing re-
quirements for federal and state taxpayers, on the one hand,
and municipal taxpayers on the other. With one exception, the
other cases from this circuit which are cited by the plaintiffs
fall into one of two categories: (1) state taxpayer challenges to
specific state legislative appropriations (which would meet the
standards under DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854(2006), and Hein v. Freedom from Religion Foundation, Inc., 127
S. Ct. 2553 (2007)), and (2) municipal taxpayer challenges to
municipal actions (which are not subject to the same strin-
gent standing requirements as state and federal taxpayers
seeking to challenge state and federal actions, respectively).
The one case that warrants further comment is Van Zandt
v. Thompson, 839 F.2d 1215 (7th Cir. 1988). In Van Zandt, the
Illinois House of Representatives passed a resolution “which
provided for the conversion of a hearing room in the Illinois
State Capitol Building . . . into a prayer room.” Id. at 1216. The
resolution “contemplate[d] that private donations w[ould] be
raised to cover the cost of renovating and maintaining the
room.” Id. at 1217.
On appeal, our discussion of standing was brief:
The district court held and neither of the parties has dis-
puted that Van Zandt has standing to sue since he is an
Illinois taxpayer and since the proposed prayer room would
arguably place economic burdens of various sorts on the
State of Illinois and its taxpayers. Van Zandt v. Thompson,
(continued...)
Nos. 05-4604 & 05-4781 33
We are well aware of the time and energy that the parties
and the district court have expended on the merits of this
matter. However, “[i]f a dispute is not a proper case or
controversy, the courts have no business deciding it, or
expounding the law in the course of doing so.” Cuno, 126 S.
Ct. at 1860-61.
Conclusion
For the foregoing reasons, we reverse the district court’s
judgment, and we remand the case to the district court
with instructions to dismiss for want of jurisdiction. The
Speaker may recover his costs in this court.
REVERSED and REMANDED
WITH INSTRUCTIONS
9
(...continued)
649 F.Supp. 583, 587 (N.D. Ill. 1986) (citing Marsh v. Cham-
bers, 463 U.S. 783, 786 n.4 (1983)). Similarly, the district court
held that the “Freedom from Religion Foundation, Inc.,” a
Wisconsin not-for-profit corporation, has associational
standing as a representative of its members who are Illinois
taxpayers. Id. at 588 n.4. These determinations appear to
be correct and have not been challenged by any of the
parties. We therefore accept them.
Id. (parallel citations omitted). After Cuno and Hein, such
amorphous burdens on state taxpayers would not meet Flast’s
narrow exception to taxpayer standing. Indeed, the resolution
at issue did not authorize any expenditure of funds, nor did it
contemplate the use of any state taxes for the renovation and
maintenance of the room. Consequently, the district court’s
assessment that the room would “place economic burdens of
various sorts” on the state taxpayers was merely speculative
and could not support the concrete injury to the plaintiffs as
taxpayers necessary to support standing.
34 Nos. 05-4604 & 05-4781
WOOD, Circuit Judge, dissenting. One of the crowning
achievements of the American Experiment has been the
relative harmony in which people of differing religious
beliefs have joined together to create a common civil
society. A glance around the rest of the world today
offers a sad reminder that many other countries have
not been so lucky. Religious strife between Jews and
Muslims is a principal component of the longstanding
hostility between Israelis and Palestinians; violence
between the Sunni and the Shi’a sects of Islam has taken a
bloody toll in Iraq in recent years; Northern Ireland was
torn by violence between Protestants and Catholics
for decades. The most recent International Religious
Freedom Report issued by the Bureau of Democracy,
Human Rights and Labor of the U.S. Department of State
(“2007 Religious Freedom Report”) identifies five major
categories of abuse of the right to religious freedom, some
blatant, some subtle, but all extant in some parts of the
world. 2007 Religious Freedom Report, Executive Summary
¶ 4, available at http://www.state.gov/g/drl/rls/
irf/2007/90080.htm (last visited Oct. 1, 2007). The report
goes on to single out (1) totalitarian and authoritarian
regimes that seek to control religious thought and expres-
sion; (2) states that display hostility toward minority or
non-approved religions; (3) states that fail to address
either societal discrimination or societal abuses against
religious groups; (4) states that enact discriminatory
legislation or implement policies that favor majority
religions and disadvantage minority religions; and (5)
states that otherwise respect religious freedom, but that
discriminate against certain religions by identifying them
as dangerous cults or sects. Id. ¶¶ 5-9. Although we do
have our religious differences in the United States, they
are far outnumbered by our understanding of commonal-
Nos. 05-4604 & 05-4781 35
ity. In no small part, this accomplishment is a result of the
delicate balance drawn in the First Amendment to the
Constitution between the protection of each person’s right
freely to exercise his or her religion and the prohibition
against the establishment of a state religion.
Another characteristic of which Americans are rightly
proud is the tradition of individualism, not in the sense of
selfishness, but in the sense of each citizen’s willingness
to shoulder whatever burdens need to be assumed and to
take responsibility for herself, her family, her community,
and the greater world around her. Americans classically
do not sit back and wait for someone else to solve a prob-
lem. This may help to explain why the tradition of the
private attorney general arose in the United States and
continues to be such an important part of American public
law. It may also help to explain why there has always
been a healthy skepticism about “government.” Those
entrusted with governmental power might exceed their
mandate, which is why, as James Madison explained in
Federalist No. 51 (among other places), the Framers of the
Constitution chose a system of mutual checks and balances.
The Federalist No. 51 (James Madison) (Gideon ed. 2001).
Speaking about the dangers from an unchecked Legisla-
tive Branch in Federalist No. 48, Madison noted that in
Pennsylvania “it appear[ed] that the constitution had
been flagrantly violated by the legislature in a variety of
important instances.” Id. No. 48, at 259 (James Madison).
Madison’s concern that “[i]f a majority be united by a
common interest, the rights of the minority will be inse-
cure,” id. No. 51, at 270, is well known. Madison himself
thought that this problem would largely be solved by
shifting coalitions of interest groups. With the rise of
political parties, however, coalitions have not shifted as
36 Nos. 05-4604 & 05-4781
fluidly inside legislative bodies as the Framers may have
thought they would. An alternative check, which was
also built into the Constitution, has supplemented the
Madisonian idea—the use of the Judicial Branch to rein
in unconstitutional actions by either the Legislative Branch
or the Executive Branch.
As the Supreme Court has stressed, the Judicial Branch
can perform this function only when the person seeking to
invoke the aid of the courts has presented a “Case or
Controversy” in the sense that Article III of the Constitu-
tion uses that phrase. One aspect of this Article III com-
mand is that the plaintiff must have “standing to sue.” Put
negatively, standing is lacking when “even though the
claim may be correct the litigant advancing it is not prop-
erly situated to be entitled to its judicial determination.” 13
Charles A. Wright, Arthur R. Miller, Edward H. Cooper,
Federal Practice & Procedure § 3531 at 338-39 (2d ed. 1984).
As this court recently noted in Winkler v. Gates, 481 F.3d
977 (7th Cir. 2007), “there are three elements of Article III
standing: injury in fact, a causal connection between the
injury and the defendant’s conduct, and likely redress-
ability through a favorable decision.” Id. at 979, citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
The question in the case before us is whether the plaintiffs
are entitled to a judicial determination of the question
whether certain rules and practices of Indiana’s legisla-
ture—rules that they assert injure them in their capacity as
state taxpayers—violate the Establishment Clause of the
First Amendment. My colleagues, relying on the plurality
opinion by Justice Alito in the case of Hein v. Freedom From
Religion Foundation, 127 S.Ct. 2533 (2007), conclude that the
answer is no. In my view, they are overlooking crucial
points of the rationale expressed in the plurality opinion,
Nos. 05-4604 & 05-4781 37
as well as the fact that seven Justices out of nine still
consider Flast v. Cohen, 392 U.S. 83 (1968), to be good law.
As I explain below, the differences between our case and
Freedom From Religion put ours squarely within the con-
fines (narrow though they may be) of the standing doctrine
recognized in Flast. I would find that the plaintiffs here
have standing to sue and would proceed to the merits of
the case.
I
This case, as the majority has explained, concerns the use
of chaplains in Indiana’s House of Representatives (“the
House”). The House uses a system of rotating chaplains,
rather than a single official who is appointed to serve in
that capacity for a stated term. (For a discussion of the
difference between the two types, see Jeremy G. Mallory,
Comment, “An Officer of the House Which Chooses Him, and
Nothing More”: How Should Marsh v Chambers Apply to
Rotating Chaplains?, 73 U. Chi. L. Rev. 1421, 1426-30 (2006).)
In the interest of avoiding any dispute about the way in
which the chaplain of the Indiana House functions, I take
most of the discussion that follows from the brief filed
on behalf of the Speaker of the House before this court. The
Speaker begins by noting that the legislative authority
in Indiana is vested in the General Assembly, which is a
bicameral body consisting of the Senate and the House.
Ind. Const. art. IV, § 1. The House has 100 members; those
members elect a Speaker, who has authority over the
House. Ind. Const. art. IV, § 10; Ind. Code § 2-2.1-1-7; Rules
of the House of Representatives (“the Rules”), Part III.B 19-
20 and Part I. The Speaker presides over the House from
the Speaker’s stand at the front of the House; under
38 Nos. 05-4604 & 05-4781
the Rules, no person may enter the Speaker’s stand with-
out the Speaker’s invitation.
Part II of the Rules outlines the conduct of business
before the House; it includes such matters as the time of
convening, deadlines, quorum, and votes necessary for
action. Rule 10 spells out the usual order of business. In
pertinent part, it reads as follows:
10.1 Calling the House to order
10.2 Prayer
10.3 Pledge of Allegiance
10.4 Roll call
At that point, assuming that a quorum is present, the day’s
business gets underway, with reports from committees,
introduction of resolutions and bills, and other matters. See
Rules 10.4-10.8. The focus in this case is on Rule 10.2,
which calls for a prayer. The Speaker explains that the
prayer is generally offered by a religious cleric who has
been invited to the House for that purpose; if no cleric is
present, a Representative will offer a prayer instead. The
Speaker authorizes the clerics or Representatives to
ascend to the Speaker’s stand to pronounce the prayer.
Invocations of this type have been offered in the House for
188 years. (Indiana became the 21st state on December 3,
1818; presumably the Speaker means to say that there has
never been a time since statehood when such prayers were
not offered. See http://www.statelib.lib.in.us/www/
ihb/publications/tlstatehood.html (last visited Sept. 25,
2007).)
The invited clerics are chosen by Representatives, who
complete a “Minister of the Day” form indicating when
the person is available to serve. Once the form is received,
Nos. 05-4604 & 05-4781 39
the actual date is scheduled. After a cleric is selected to
offer the prayer, he or she will receive a brief form letter.
Apart from passing along logistical details, the letter
offers the following guidance:
The invocation is to be a short prayer asking for guid-
ance and help in the matters that come before the
members. We ask that you strive for an ecumenical
prayer as our members, staff and constituents come
from different faith backgrounds. Thank you for your
consideration.
As the majority notes, the legislature has authorized and
appropriated specific revenues to support the prayer.
The amounts are tiny, compared to the size of Indi-
ana’s recent annual budget of some $25 billion in expendi-
tures. See http://www.in.gov/sba/budget/ 2007_budget/
as_passed/pdfs (last visited Sept. 25, 2007). The form letter
cost at the time $0.54 per mailing; photographs are pro-
vided at public expense at a cost of $0.68 each; and the
photographs along with a thank-you letter are sent to the
cleric afterward at a cost of about $1.60 per mailing, for a
total of $2.82 in direct costs. The sessions of the House are
broadcast over the Internet at a cost of $112.85 an hour, or
$1.88 a minute; this too is paid for by tax revenues. Assum-
ing that a typical invocation is about 3 minutes in length,
another $5.64 per legislative day might be attributed to
this practice, for a total expenditure of $8.46 per prayer.
During the 2005 legislative session transcripts were
prepared for 45 out of the 53 prayers that were offered. The
person giving the prayer, and his or her religious affilia-
tion, was identified for all 53 days. On 41 of those days,
the prayer was offered by a cleric or other person identi-
fied with a Christian denomination; one prayer was
offered by a rabbi, one by an imam, one by a lay person,
40 Nos. 05-4604 & 05-4781
and nine by legislators. In 29 out of the 45 invocations
for which transcripts are available, the person explicitly
offered the prayer in the name of Jesus, Christ, the
Savior, or the Son (sometimes using more than one of
those words). In a small number, the officiant notes that
he or she is praying personally in the name of Jesus or
Christ, but in the majority, the officiant states or implies
that the prayer is offered in Jesus’s name by everyone
assembled. The record is filled with examples, of which
I offer only a few. On February 28, 2005, Rev. Radersdorf
opened his prayer by saying, among other things, “What-
ever you do in word or deed, do all in the name of Lord
Jesus, giving thanks through Him to God the Father.” On
April 5, 2005, Rev. Brown first expressed thanks to the
Father “for our Lord and Savior Jesus Christ,” and then,
at the Speaker’s invitation, returned to the Speaker’s
stand after the Pledge and sang “Just a Little Talk with
Jesus,” while some legislators stood, clapped, and sang
along, and others walked out of the House in protest. On
April 29, 2005, Rev. Descesario said “As a minister of the
gospel, I exercise my right to declare this room a hallowed
place. I invite into this room, into the proceedings of the
day, into the decisions that will [sic] made today, to each
person, the mighty Holy Spirit of God. Holy Spirit, give
these here the mind of Christ. . . . I ask this in the name
of Jesus Christ.”
These were the practices to which the plaintiffs, all
Indiana taxpayers, objected. They filed the present suit,
claiming that the Indiana legislature was appropriating
and spending monies to support religion and sectarian
prayer, and that this practice violated the Establishment
Clause. The district court found that they had standing
to sue, under Flast v. Cohen, and that the particular
prayers the Speaker was permitting crossed the line
Nos. 05-4604 & 05-4781 41
between permissible invocation and prohibited religious
practice first established in Marsh v. Chambers, 463 U.S. 783(1983). It issued an injunction, and the defendants appealed
under 28 U.S.C. § 1292(a)(1). My colleagues have con-
cluded that this lawsuit must be cut off at the threshold
issue of standing. While I do not agree with them on this
point, before turning to that question I wish to highlight the
implications (or lack thereof) of their decision. Nothing in
the majority opinion should be understood as a ruling one
way or the other on the merits of the House’s procedures.
Should someone come along who meets the majority’s
concept of standing, the question whether the House may
sponsor prayers at State expense urging everyone in the
chamber to adhere to Christianity, or edicts declaring the
room a “hallowed place,” or musical exhortations, revival-
style, to “talk with Jesus,” is an open one.
II
As I noted earlier, the Supreme Court has recognized
three elements of Article III standing: injury-in-fact, a
causal connection between the injury and the defendant’s
conduct, and likely redressability through a favorable
decision. Lujan, 504 U.S. at 560-61. Whether the restrictions
on taxpayer standing derive from one or more of these
basic Article III constraints or if they stem from a rule of
self-restraint has been unclear, see Winkler, 481 F.3d at 980(majority opinion); id. at 988 (Sykes, J., dissenting). Because
no one Justice spoke for a majority of the Supreme Court
in Freedom From Religion, the question may still be debat-
able. Nonetheless, both because it is fair to assume that
Justices Scalia and Thomas would agree with the three
for whom Justice Alito wrote, and because Justice Alito
relied squarely on Article III in his rejection of taxpayer
42 Nos. 05-4604 & 05-4781
standing in that case, I assume for the sake of argument
that we are dealing with a restriction on standing that is
grounded in the Constitution.
Although it is a bit anachronistic to superimpose the
Lujan analysis on earlier taxpayer standing cases, it is
nonetheless useful for purposes of understanding how
those decisions contribute to the modern law of stand-
ing. When one looks at all of the cases in this line, up to
and including Freedom From Religion, it appears that the
crucial element that is lacking in unsuccessful taxpayer
suits is injury-in-fact. The Supreme Court’s language in
Frothingham v. Mellon, 262 U.S. 447 (1923), which turned
away a taxpayer’s effort to challenge the Maternity Act
of 1921 as beyond Congress’s Article I powers and an
affront to the states’ Tenth Amendment reserved powers,
is typical. There the Court wrote that the interest of a
single taxpayer
in the moneys of the Treasury—partly realized from
taxation and partly from other sources—is shared
with millions of others; is comparatively minute and
indeterminable; and the effect upon future taxation,
of any payment out of the funds, so remote, fluctuating
and uncertain, that no basis is afforded for an appeal
to the preventive powers of a court of equity.
Id. at 487. Such an attenuated injury led inexorably to the
unavailability of any useful remedy in Frothingham itself.
In Flast, the Court took a closer look at why taxpayer
standing had been rejected in Frothingham. It concluded
that the taxpayer in the latter case “lacked standing
because her constitutional attack was not based on an
allegation that Congress, in enacting the Maternity Act of
1921, had breached a specific limitation upon its taxing
Nos. 05-4604 & 05-4781 43
and spending power.” 392 U.S. at 105. In essence, the
Court continued, she was trying “to assert the States’
interest in their legislative prerogatives and not a federal
taxpayer’s interest in being free of taxing and spending
in contravention of specific constitutional limitations
imposed upon Congress’ taxing and spending power.” Id.The Establishment Clause, it then held, is such a specific
limitation on the taxing and spending power, and taxpay-
ers have “a clear stake” in assuring that Congress does not
breach those limits. Id. The injury-in-fact that the taxpayer
suffers is not the fact that he or she must pay taxes; it is
the fact that those taxes are being “extracted and spent
in violation of specific constitutional protections against
such abuses of legislative power.” So characterized, the
injury is both caused by the constitutional violation and
it is eminently redressable: all the court needs to do is to
enjoin the unconstitutional expenditure, and then leave
it to the legislature to decide whether to use the money
in other, constitutional, ways or to reduce taxes.
Although some might object to the vagueness of this
injury—Justice Scalia, for one, made exactly that argument
in Freedom From Religion, see 127 S.Ct. at 2573, 2575-77—the
Court has recognized injuries no more specific than this
in other contexts. Thus, for example, in Sierra Club v.
Morton, 405 U.S. 727 (1972), the Court held that users of
Sequoia National Park would have had standing to chal-
lenge the construction of an elaborate ski resort, based
only on the aesthetic injury they would suffer from the
adverse effects on the scenery, natural and historic ob-
jects, and wildlife of the park. 405 U.S. at 734-35. Similarly,
in Heckler v. Mathews, 465 U.S. 728 (1984), the Court held
that regardless of whether a plaintiff might recover tangible
monetary relief from a suit challenging unconstitu-
44 Nos. 05-4604 & 05-4781
tional discrimination, “discrimination by itself, by per-
petuating archaic and stereotypic notions or by stigmatiz-
ing members of the disfavored groups as innately inferior
and therefore less worthy participants in the political
community . . . can cause serious noneconomic injuries to
those persons who are personally denied equal treatment
solely because of their membership in a disfavored group.”
Id. at 739-40 (internal quotations and citations omitted).
Further, in Lujan itself, the injury complained of was an
increased “rate of extinction of endangered and threatened
species.” Lujan, 504 U.S. at 563. The shortcoming in that
case was that the plaintiffs did not show how it affected
them directly, even, as the concurrence by Justice Kennedy
pointed out, through something as minimal as the detri-
ment of buying plane tickets to see the disappearing
animals. Id. at 579 (Kennedy, J., concurring); see also Japan
Whaling Assn. v. American Cetacean Society, 478 U.S. 221,
231 n.4 (1986) (“Respondents . . . undoubtedly have
alleged a sufficient ‘injury in fact’ in that the whale watch-
ing and studying of their members will be adversely
affected by continued whale harvesting.”).
The Establishment Clause uniquely involves this sort
of psychic, aesthetic, or intangible injury. The injury
involved is never physical and only rarely (with the
prominent exception of taxpayer cases, it so happens) even
monetary. Instead, in cases where the Court has not
balked at accepting standing, the plaintiffs claim more
intangible injuries such as: having a predominantly
religious purpose in arranging art in a particular way, see
McCreary County v. American Civil Liberties Union of Ky.,
545 U.S. 844, 881 (2005); passing a monument along one’s
path to work, see Van Orden v. Perry, 545 U.S. 677, 694
(2005) (Thomas, J., concurring) (reaching the merits of the
Nos. 05-4604 & 05-4781 45
Establishment Clause injury; not questioning standing); or
sending a message of endorsement or disapproval of
religion, see Lynch v. Donnelly, 465 U.S. 668, 687-88 (1984)
(O’Connor, J., concurring). Were they attached to another
clause in the Constitution, these harms conceivably might
be too amorphous for the courts to find standing; in the
Establishment Clause context, however, standing was clear.
See, e.g., DaimlerChrysler Corp. v. Cuno, 126 S.Ct. 1854, 1859
(2006) (Commerce Clause); Valley Forge v. Americans United
for the Separation of Church and State, Inc., et al., 454 U.S. 464,
466 (1982) (art. IV, § 3, cl. 2); Frothingham v. Mellon, 262 U.S.
447 (1923) (amends. V and X). Indeed, viewed against
the backdrop of other injuries in Establishment Clause
cases, the plaintiffs here have shown more concrete dam-
age than most: they have enumerated, with some degree of
accuracy, the value of the “three pence” they pay to
support the practices of which they complain. See Daimler-
Chrysler, 126 S.Ct. at 1864, quoting from Flast, 392 U.S. at
102, which in turn was quoting 2 Writings of James Madison
186 (G. Hunt ed. 1901). This harm is more concrete than
injuries arising from a Ten Commandments display, a
holiday creche, or a graduation prayer, all of which are
staples of Establishment Clause jurisprudence. By the
standards set in other Establishment Clause cases, anybody
who has heard one of these prayers (in person or on the
web) should be able to claim standing at least to have her
claim heard, whether or not it eventually succeeds. See
American Civil Liberties Union v. St. Charles, 794 F.2d 265,
274-75 (7th Cir. 1986) (arguing that Establishment Clause
standing would exist when a citizen saw a $20 creche or
had to alter her path on the sidewalk, but not when she
read about the creche in the newspaper). Potential injury to
the plaintiffs before us—in their role as constituents, which
they necessarily are if they are taxpayers—is even ex-
46 Nos. 05-4604 & 05-4781
pressly considered and warned against in the letter sent to
Ministers of the Day, asking that they “strive to be ecu-
menical”; the caution is presumably there to avoid inadver-
tently excluding or offending a constituent from a “differ-
ent faith background.” Categorizing this foreseen, concrete
harm as an “amorphous burden” that does not give rise to
a cognizable case or controversy, see ante at 30 n.7, gives
insufficient weight to the nature of the harm inherent in all
Establishment Clause cases.
In evaluating the case before us, it is not necessary
to review all of the cases dealing with taxpayer standing
to challenge either Establishment Clause violations or
other constitutional violations. It is enough to take a
closer look at Freedom From Religion and to note carefully
what the plurality did and did not hold there. Before
doing so, I note one point of agreement between the
majority and me: the principles announced in Freedom From
Religion with respect to federal taxpayers apply with equal
force to the state taxpayers before us in the present case.
The Supreme Court so held in DaimlerChrysler, 126 S.Ct. at
1863, which was a case in which state taxpayers claimed
that certain tax benefits afforded by Ohio law violated the
Commerce Clause. The Court concluded that it could not
reach the substantive Commerce Clause issue, because the
state taxpayers lacked standing to sue in federal court. In
so holding, however, the Court distinguished between
the Establishment Clause challenge that Flast permitted
and the Commerce Clause challenge the plaintiffs were
trying to press: “Whatever rights plaintiffs have under
the Commerce Clause, they are fundamentally unlike
the right not to ‘contribute three pence . . . for the support
of any one [religious] establishment.’ ” Id. at 1864, quot-
ing from Flast, 392 U.S. at 102, in turn quoting 2 Writings
of James Madison 186.
Nos. 05-4604 & 05-4781 47
I have been discussing Justice Alito’s plurality opinion
reversing the court of appeals, as does the majority,
because it was he who expressed the middle ground on
the Court. Unlike Justices Scalia and Thomas, who thought
that the time had come to overrule Flast, Justice Alito,
joined by the Chief Justice and Justice Kennedy, was not
prepared to go so far. The plurality found such a move
unnecessary, because in their view the taxpayers before
them did not satisfy Flast’s narrow exception to the normal
Frothingham rule against taxpayer standing. Justice Souter,
writing for himself and the other three dissenters, noted
the Court in DaimlerChrysler had recently reaffirmed that
the “ ’ “injury” alleged in Establishment Clause challenges
to federal spending’ is ‘the very “extract[ion] and
spend[ing]” of “tax money” in aid of religion.’ ” 127 S.Ct. at
2584-85, quoting DaimlerChrysler, 126 S.Ct. at 1865. The
reason why the Alito plurality thought that the Flast rule
did not apply to the plaintiffs in Freedom From Religion
was simple: the plaintiffs were not challenging legisla-
tive actions; instead, they were attacking Executive
Branch expenditures in support of religion (in particular,
the White House Office of Faith-Based and Community
Initiatives within the Executive Office of the President,
and related Executive Centers in other federal agencies
and departments). While the dissenters took the plurality
to task for that distinction, arguing that the Judicial Branch
has no reason to distinguish between actions of the Exe-
cutive Branch and those of the Legislative Branch, theirs
was not the prevailing voice.
The plurality opinion contains numerous references to
the importance of the fact that “[t]he expenditures at issue
in Flast were made pursuant to an express congressional
mandate and a specific congressional appropriation.” 127
48 Nos. 05-4604 & 05-4781
S.Ct. at 2565. In the case before the Court, in contrast,
“[r]espondents [did] not challenge any specific congressio-
nal action or appropriation; nor [did] they ask the Court
to invalidate any congressional enactment or legislatively
created program as unconstitutional.” Id. at 2566. Allowing
taxpayers to challenge general Executive programs on
an “as applied” basis would, the plurality feared, stretch
the nexus between the status as taxpayer and the program
beyond the breaking point. Justice Alito continued, “[i]t
cannot be that every legal challenge to a discretionary
Executive Branch action implicates the constitutionality
of the underlying congressional appropriation.” Id. at 2567-
68. He concluded this part of the opinion as follows:
Because the expenditures that respondents challenge
were not expressly authorized or mandated by any
specific congressional enactment, respondents’ lawsuit
is not directed at an exercise of congressional power,
see Valley Forge, 454 U.S. at 479, and thus lacks the
requisite “logical nexus” between taxpayer status “and
the type of legislative enactment attacked.” Flast, 392
U.S. at 102.
Id. at 2568. Finally, Justice Alito rejected the “parade of
horribles” that respondents feared would occur if discre-
tionary Executive Branch expenditures were outside the
reach of taxpayer litigation. “In the unlikely event that
any of these [overtly religious] actions did take place,
Congress could quickly step in.” Id. at 2571.
III
Given the fact that taxpayer standing, after Freedom From
Religion, turns on whether the plaintiffs are claiming that
a “legislatively created program” is unconstitutional
Nos. 05-4604 & 05-4781 49
because it violates the Establishment Clause, we must
look more specifically at what our plaintiffs are attempt-
ing to challenge to see whether this suit may go forward
to an adjudication on the merits. What we find is a chal-
lenge to a legislative chaplaincy, created by a House Rule
enacted by Indiana’s House of Representatives and ad-
ministered by the Speaker. The Indiana House and Senate
both enact their rules pursuant to Ind. Const. art. IV, § 10
(“Each House, when assembled, shall choose its own officers,
the President of the Senate excepted; judge the elections,
qualifications, and returns of its own members; determine
its rules of proceeding, and sit upon its own adjournment.
But neither House shall, without the consent of the other,
adjourn for more than three days, nor to any place other
than that in which it may be sitting.”) (emphasis added).
There does not appear to be any additional specific en-
abling act pursuant to which the rules are adopted at the
beginning of each session. This seems close to the practice
of the U.S. Senate, which maintains standing rules rather
than readopting them at the beginning of each session. See
Sen. Rule V.2 (“The rules of the Senate shall continue from
one Congress to the next Congress . . . .”).
Under Freedom From Religion, it is necessary to situate
these rules, and House Rule 10.2 in particular, somewhere
in the broader scheme of Indiana’s government. In the
final analysis they necessarily must be legislative acts,
executive acts, or something sufficiently like one of those
two that we can proceed with the standing analysis. (They
certainly are not judicial in nature, which is why I dis-
regard that possibility.) This is not the usual question that
comes up, in the administrative law context, with respect
to legislative rules. Instead, courts have grappled with
whether challenges to this type of internal rule present
50 Nos. 05-4604 & 05-4781
nonjusticiable political questions for the reason that
there is an explicit textual commitment to each house to
set its own rules. See U.S. Const. art. I, § 5, cl. 2; Ind. Const.
art. IV, § 10. But, interestingly, there is a qualification to
the political question doctrine for cases in which the
internal rules “transgress[] identifiable textual limits,”
Nixon v. United States, 506 U.S. 224, 238 (1993). Under
Nixon, internal rules give way to constitutional text but are
otherwise generally unreviewable. Id. at 237-38; cf. Marshall
Field & Co. v. Clark, 143 U.S. 649 (1892) (holding that an
enrolled bill is conclusive evidence of its validity; refus-
ing to evaluate the process or rules by which it reached
that point). So we are back to the same question: if a House
rule violates the Establishment Clause, which looks like
an identifiable textual limit on federal lawmaking author-
ity, and state authority through incorporation by the
Fourteenth Amendment, is it the kind of legislative en-
actment that would support taxpayer standing?
There is no indication anywhere that a rule like House
Rule 10.2 is anything other than legislative. Indeed, the
Indiana courts have made it clear that the powers of the
two houses of its Legislative Branch are themselves
solely legislative in nature; neither the executive nor the
judicial branches of government may interfere with them.
See, e.g., State ex rel. Wheeler v. Shelby Circuit Court, 362
N.E.2d 477 (Ind. 1977), on rehearing 369 N.E.2d 933 (Ind.
1977); State ex rel. Batchelet v. Dekalb Circuit Court, 229
N.E.2d 798 (Ind. 1967); State ex rel. Acker v. Reeves, 95 N.E.2d
838 (Ind. 1951). Both the majority and the United States, as
amicus curiae, argue that it is proper to characterize the
rules as non-legislative because they address an internal
legislative matter, rather than a public act of the legislature.
(Indirectly, perhaps, the majority and amicus are returning
Nos. 05-4604 & 05-4781 51
to the political question argument. The existence of a pos-
sible political question, however, does not defeat stand-
ing to sue; it presents a different reason why a court might
not adjudicate a case.) In any event, this argument misses
the key issue animating Freedom From Religion: Justice
Alito’s rationale was founded on the fact that the expendi-
ture was not only executive but discretionary—two steps
removed from any legislative action. The majority in our
case bases its argument on the fact that there is no
specific line item reading “Chaplain—Minister of the Day
Program” in the budget. But that begs the question. The
budget is not the only legislative act before us. There is
also House Rule 10.2, which specifically calls for the
prayer, and the prayer is concretely supported by the
appropriations the General Assembly makes for the
House in the budget. Far from being twice-removed from
a legislative action, as was the case in Freedom From Reli-
gion, the challenge before us is ratified twice by the leg-
islature, once as a rule and the second time in the budget.
It is unquestionably a legislative act.
The House Prayer is thus different from the Bible read-
ings at issue in Doremus v. Board of Ed. of Hawthorne, 342
U.S. 429 (1952)—a case that in any event pre-dated Flast
and thus may have been qualified by the later decision.
Although the readings from the Old Testament with
which public school teachers were to begin the school day
were required by a New Jersey statute, they were con-
ducted under the broader umbrella of the state’s school
program. The Court saw no “pocketbook” angle to the case,
342 U.S. at 434, but only “a religious difference.” Id. It
then commented that “[i]f appellants established the
requisite special injury necessary to a taxpayer’s case or
controversy, it would not matter that their dominant
52 Nos. 05-4604 & 05-4781
inducement to action was more religious than mercenary.”
Id. at 434-35. The real problem for the taxpayer-plaintiffs
in Doremus, therefore, was a failure of proof of any pocket-
book consequence; plaintiffs here, in contrast, have taken
pains to spell out the financial implications of the House
Prayer. To reiterate, there is a line item for “House Ex-
penses,” and doubtless the accounts into which that
appropriation is put are the ones drawn down to pay for
the Minister of the Day program. Flast requires a nexus
between taxpayer status (paying into the fisc) and the
type of legislative action enacted (the budget item for
“House Expenses,” from which these expenditures are
made, and Rule 10.2, in furtherance of which these expen-
ditures are made).
The majority would require litigants to trace money
directly through the state’s accounts, which is surely an
excessive requirement for a preliminary matter like stand-
ing. This reading of Freedom From Religion would effectively
adopt Justice Scalia’s concurring opinion for himself and
Justice Thomas advocating the overruling of Flast, in
contravention of the rule in Marks v. United States, 430 U.S.
188 (1977), which held that “[w]hen a fragmented Court
decides a case and no single rationale explaining the
result enjoys the assent of five Justices, ‘the holding of the
Court may be viewed as that position taken by those
Members who concurred in the judgments on the narrow-
est grounds . . . .’ ” Id. at 193 (citation omitted). It would
become impossible to bring a taxpayer suit for anything
short of an unimaginably stupid or insensitive legisla-
tive action—perhaps a law announcing that Indiana is a
Christian state—which in any event would be unlikely to
inflict specific enough harm on any one person to allow
him or her to sue for more particular injuries.
Nos. 05-4604 & 05-4781 53
The majority’s approach also disregards the special place
that legislative chaplaincies have held in the Supreme
Court’s Establishment Clause and standing jurisprudence.
Marsh v. Chambers was decided in 1983, long after both
Doremus and Flast were on the books. In that case, the
Court considered a challenge to the practice of the Ne-
braska legislature of opening each legislative day with a
prayer by a chaplain paid by the state. 463 U.S. at 784. The
plaintiff, Ernest Chambers, sued both in his capacity as a
member of the Nebraska legislature and in his capacity
as a taxpayer of Nebraska. The Supreme Court noted
that the court of appeals had considered, among other
things, the question of standing, id. at 785, but it moved
directly to the merits—something it could not have done,
given the jurisdictional nature of an Article III challenge,
had it thought that there was a problem with standing. On
the merits, the Court found no problem with the chaplaincy
that Nebraska had adopted. It noted in passing that the
chaplain had characterized his prayers as “ ’nonsectarian,’
‘Judeo Christian,’ and with ‘elements of the American civil
religion.’ ” Id. at 793 n.14. It also noted that “[a]lthough
some of his earlier prayers were often explicitly Christian,
[the chaplain] removed all references to Christ after a 1980
complaint from a Jewish legislator.” Id. These, of course,
are merits judgments.
I do not rule out the possibility that some or all of the
prayers offered before the Indiana House might sim-
ilarly pass muster under Marsh. Unfortunately, however,
we are never to find out. Under the majority’s approach,
even if the Speaker decides to start working his way
through the Anglican Book of Common Prayer day by
day, notwithstanding the presence of Jewish, Muslim,
Hindu, Buddhist, and other legislators, staff, and con-
54 Nos. 05-4604 & 05-4781
stituents, nothing can be done to enforce the command of
the Establishment Clause. As long as a majority of the
House is Christian, it is also reasonable to predict that
the House itself will never take action to curb such a
practice.
Apart from all the other problems I see with this out-
come, it is striking how inconsistent it is with the history
of the Establishment Clause. A leading casebook on the
subject summarized the type of “establishment of religion”
that was known to the Framers of the Constitution as
including four prominent features: (1) governmental
control over church doctrine and personnel; (2) suppres-
sion of alternative faiths; (3) political connections between
the established church and the lay government; and
(4) compelled attendance and financial support for the
established church. Michael W. McConnell, John H.
Garvey, and Thomas C. Berg, Religion and the Constitution
21-23 (Aspen 2002). To illustrate the sort of state establish-
ments that persisted after the Constitution was written,
the book presents the case of Barnes v. First Parish in
Falmouth, 6 Mass. 400, 1810 WL 938 (1810), which dealt
with the question whether a public school teacher af-
filiated with a sect of Christianity different from that of the
majority in his area could recover taxes paid over to the
majority church. In rejecting his case, the court had this
to say:
Having secured liberty of conscience, on the subject of
religious opinion and worship, for every man, whether
Protestant or Catholic, Jew, Mahometan, or Pagan, the
constitution then provides for the public teaching of
the precepts and maxims of the religion, of Protestant
Christians to all the people. And for this purpose it is
made the right and the duty of all corporate religious
Nos. 05-4604 & 05-4781 55
societies, to elect and support a public Protestant
teacher of piety, religion, and morality; and the election
and support of the teacher depend exclusively on the
will of a majority of each society incorporated for
those purposes.
1810 WL 938 at *4. This case arose long before the enact-
ment of the Fourteenth Amendment, obviously, and thus
long before the Establishment Clause operated as a direct
restraint on state law. Furthermore, Massachusetts itself
dismantled its established religion in 1833. See McConnell
et al., Religion and the Constitution at 35. The element of
using taxes as support for religious efforts, however,
was a clear feature of the Massachusetts establishment
while it persisted.
Professor Philip Hamburger provides further insight
into the evils that the Establishment Clause was designed
to address:
In late eighteenth-century America the dissenters
from the established churches sought limitations on
civil government and did so in arguments that con-
formed to recognizable patterns. The states with
establishments had once passed laws imposing penal-
ties on dissenters but now more typically enacted only
privileges for their established denominations—
notably, salaries for the established clergy. Against
these establishments of religion most dissenters
sought not only a freedom from penalties (whether in
terms of the “freedom of worship” or the “free exercise
of religion”) but also guarantees against the unequal
distribution of government salaries and other benefits
on account of differences in religious beliefs. Some
dissenters even demanded assurances that there
would not be any civil law taking “cognizance” of
56 Nos. 05-4604 & 05-4781
religion. As a result, the American constitutions that
were drafted to accommodate the antiestablishment
demands of dissenters guaranteed religious liberty
in terms of these limitations on government—specifi-
cally, limits on discrimination by civil laws and on the
subject matter of civil laws.
Phillip Hamburger, Separation of Church and State 11-12
(Harvard University 2002). Madison agreed with the
dissenters who thought that the state should not establish
a religion; indeed he may have favored a more absolute
separation between “matters of Religion” and “Civil
Society.” Id. at 105. When it came to drafting the Bill of
Rights, however, he settled on antiestablishment language
similar to that which was finally adopted. Id. This sug-
gests that the Establishment Clause was the result of efforts
by religious dissenters who felt the need to protect them-
selves from the dominant established sects that had
managed to secure various benefits that could be con-
ferred only by the state, including access to the public fisc.
In my view, the taxpayer-plaintiffs before us have alleged
enough to win the right to present their challenge to the
House Prayer before a judicial forum. They are challeng-
ing a legislative act, and they have alleged concrete pocket-
book injuries. Given both the ruling in Marsh and the
qualifications on that ruling, the issue they wish to present
is a serious one. They argue, in essence, that preferential
access to the Speaker’s stand for adherents to the Christian
faith is exactly the kind of problem that the First Amend-
ment’s Establishment Clause was supposed to remedy.
Were this a simple Establishment Clause case in which
they complained about hearing the prayers as they
walked past the door of the House Chamber on their
usual way to work, they may very well have been entitled
Nos. 05-4604 & 05-4781 57
to proceed. The majority overextends the command of
Freedom From Religion in denying them a day in court.
I respectfully dissent.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-30-07