Hein v. Freedom from Religion Foundation

The standing requirements in Federal Courts perform an important gate-keeping function in preventing those courts from exceeding their Constitutional authority under the Article III cases and controversies limitation. See Freedom from Religion, 433 F.3d at 990. In the past, standing could only be granted when the injury done to the plaintiff would have supported a common law suit in the Eighteenth Century. See id. In fact, the Supreme Court in 1952 rejected taxpayer status as insufficient for establishing standing to challenge the actions of the Federal government in Federal court. See Doremus v. Board of Education, 342 U.S. 429, 433–34 (1952). The injury done to taxpayers by illegal government actions was judged to be too attenuated (or even non-existent) to support their standing to challenge the action. See Freedom from Religion, 433 F.3d at 990.

However, in 1968, the Supreme Court upheld the standing of a group of taxpayers to challenge the appropriation of Federal funds that were to be used to purchase educational materials for parochial schools. See Flast v. Cohen, 392 U.S. 83, 88 (1968). The taxpayers argued that such an appropriation, conducted under Article 1, Section 8 of the Constitution, violated the Establishment Clause of the First Amendment. See id. at 85–86. According to the Court, the special interest of citizens in church-state separation, the need for judicial scrutiny of Congressional action, and the “nexus” between the appropriations of funds and the Establishment Clause violation provided a sufficient basis for standing. See id. at 115–16.

Twenty years later, the Court revisited this issue in Bowen v. Kendrick, in which the Court also upheld standing for the taxpayer plaintiffs. 487 U.S. 589, 618–20 (1988). Kendrick involved the Adolescent Family Life Act, which provided grants to nonprofit organizations for the purpose of addressing the issue of teenage pregnancy. See id. at 593–94. While the statute itself made no mention of supplying these funds to religious organizations, the Executive Branch, in applying the Act, had done so. See id. at 597. The taxpayer plaintiffs challenged these grants as violating the Establishment Clause. See id. at 593. The Court, while remanding the case for further consideration on the merits, noted that under Flast and other precedent, the plaintiffs did have standing to challenge the Act as applied. See id. at 618–20.

A further important case in this area of jurisprudence is Valley Forge Christian College v. Americans United for the Separation of Church and State. 454 U.S. 464 (1982). In that case, the taxpayer plaintiffs challenged the Department of Health, Education, and Welfare’s donation of an abandoned army hospital to a religious organization. See id. at 467–69. The Court denied standing to the taxpayers, holding that in order for taxpayers basing their standing on their taxpayer status to challenge a Congressional action, that action must have been taken pursuant to Congress’s power under Article 1, Section 8 and not some other Constitutional provision. See id. at 480, 488.

Despite these decisions, the district court determined that the Foundation lacked standing to challenge the Faith Based Community Initiatives program. See Freedom from Religion, 433 F.3d at 990. The Seventh Circuit Court of Appeals, however, reversed the district court’s standing decision, holding that under Flast and Kendrick the taxpayers clearly had standing to challenge the program. See id. at 996–67. According to the Court of Appeals, the primary difference between the Foundation’s challenge and the previous cases is simply that there was no specific statutory program relating to the Initiatives, as only generally appropriated funds were used. See id. at 994. The Court held that this difference was not controlling, and that all that is necessary for the challenge is the fact that the expenditures by the Executive of funds were appropriated by Congress. See id. at 994–95.

The Government’s Argument

The government bases its argument on the “first principle” of standing doctrine, which requires that the plaintiff demonstrate some injury as a result of the challenged action. See Petition for Certiorari at 9–10. According to the government, the Supreme Court has traditionally denied standing as a result of taxpayer status. See id. at 10. The injury caused to taxpayers as a result of unconstitutional appropriations is “’comparatively minute and indeterminable.’” See id. at 10 (quoting Frothingham v. Mellon, 262 U.S. 447, 487 (1923)). Taxpayer status, therefore, is not a sufficient independent source of standing. See id. at 9–11.

The government further argues that Flast, the case upon which the Foundation and Court of Appeals reasoning rests, does not serve to give the Foundation members standing. See id. at 12. The Flast rule, according to the government, is only a narrow exception to traditional standing doctrine and not a fundamental change in the doctrine. See id. at 12–13. Expanding the holding of that case to cover the Foundation’s challenge would “loose[n] taxpayer standing from its constitutional and historical moorings.” Id. at 19. Unlike the Congressional action at issue in Flast, the Initiatives have not cost the taxpayers any additional money in taxes, nor have any funds been disbursed directly to religious organizations. See id. at 20. Therefore, the Foundation’s complaint is not the specific type of “historical evil” that was at the heart of Flast. Id. at 20.

In addition to this historical argument, the government makes two more formalistic arguments for why Flast should not apply. See id. at 15–19. First, the government contends that Flast is only applicable where the challenge is directed at congressional power under Article 1, Section 8. See id. at 15. The Foundation’s complaint, however, is challenging a purely Executive action that is not the result of any particular congressional action. See id. The mere fact that these actions of Executive branch officials are funded by general appropriations does not transform an Executive action into a Congressional one; therefore, the Flast expansion to traditional standing requirements does not apply. See id. at 15–16.

The second argument revolves around a factual distinction between the FBCI and the programs in Flast and Kendrick. See id. at 16. Both of the latter cases involved disbursements of government funds, and therefore taxpayer money, to religious organizations. See id. The FBCI, however, only utilize Federal funds in the creation of conferences. See id. Therefore, the supposed injury to the taxpayers is arguably insufficient to support the Foundation’s standing, as there is no “concrete congressional extraction and disbursement of funds that [gave] rise to Article III standing under Flast.” Id. at 19.

The Foundation’s Argument

The Foundation’s standing argument is based on what are, according to them, straightforward applications of Flast and Kendrick to the present case. Brief in Opposition at 3, 5. The Foundation essentially agrees with the Seventh Circuit’s reading of these cases that places the Foundation’s challenge squarely within their holdings. See Freedom from Religion, 433 F.3d at 996–97.

According to the Foundation, Flast grants standing to taxpayers based on taxpayer status to challenge any congressional appropriation that is in violation of the Establishment Clause. See Brief in Opposition at 4. The Foundation contends that the interest of taxpayers in not having their tax money used in violation of the Establishment Clause is sufficient to generate the injury required for standing. See id. Standing under Flast, therefore, only requires that the funding for the alleged violation originated from Congress and was later used for a “constitutionally proscribed activity.” Id.

Furthermore, the Foundation challenges the government’s claim that the party challenging a government action must be able to point to a specific appropriation by Congress. See id at 5. Under Flast and Kendrick, the Foundation points out, even if the original appropriation was facially valid under the Constitution, taxpayers have standing to challenge an Executive Branch action that violates the Establishment Clause. See id. Congress need not be directly responsible for the violation. See id. at 7. The Establishment Clause, therefore, acts as a restriction not only on Congress directly, but on the Federal government as a whole. See id. Thus, the fact that the Foundation cannot identify a particular Congressional action that violated the Establishment Clause arguably does not preclude them from having standing. See id. at 7–9.