Taxpayer Standing to Challenge Establishment Clause Violations
Ever since the famed decision of Marbury v. Madison in 1821, the Supreme Court and lower federal courts have exercised the power of judicial review—the power to review the actions of federal and state governments, and invalidate ones inconsistent with the Constitution. Yet lawyers know that the judiciary is not some roving arbiter free to invalidate any government action found to be contrary to the Constitution. Instead, there are significant limits on the courts’ ability to check the actions of the other organs of government. These limits come with quite different names—sovereign immunity, abstention, the political-question doctrine, the bar on advisory opinions— but they all have roots in the idea that the role of the courts in our constitutional system is limited.
One of this idea’s more important manifestations lies in the doctrine of standing. The essence of standing is that only people who are personally injured by government action should have the right to challenge it in court. By contrast, plaintiffs cannot generally sue if the injury they are complaining about is a ‘‘generalized grievance.’’ The Supreme Court first put flesh on this idea in the 1923 case of Frothingham v. Mellon, 262 U.S. 447. There, a plaintiff sued to stop the federal government from providing monetary grants to the states to reduce maternal and infant mortality. The grants were given pursuant to the Federal Maternity Act of 1921, which the plaintiff alleged to be unconstitutional under the Tenth Amendment. The plaintiff was a federal taxpayer and her taxes were being used to support this allegedly unconstitutional grant. But beyond that, she was largely unaffected by the grant program. The Court dismissed the case, stating that plaintiffs whose only injuries are shared generally by all citizens or all taxpayers do not have standing.
The general rule then is that taxpayer standing (or citizen standing) does not exist. But the Establishment Clause creates an exception to that general rule. This was the holding of the Supreme Court’s 1968 decision in Flast v. Cohen, 392 U.S. 83. Flast was a challenge, brought by a taxpayer, to the federal government’s provision of funds to private schools, religious and secular, under the Elementary and Secondary Education Act of 1965. The Court created a two-part test for taxpayer standing and explained why it was satisfied. First, there was in Flast (as there had been in Frothingham) a nexus between taxpayer status and the legislation challenged: in both cases, taxpayers were challenging Congress’s use of their taxes under its Article I power to tax and spend for the general welfare. Second, there was in Flast (unlike Frothingham) a nexus between taxpayer status and the right being alleged. The Tenth Amendment, when it was passed, was not concerned with the rights of taxpayers. But the Establishment Clause, the Court reasoned, was. Indeed, one of the main purposes of the Establishment Clause was to prevent the government from forcing dissenting taxpayers to fund religious activity. Because both of those nexuses were shown, the Flast court thought standing established.
At the time, the Flast decision was seen as greatly expanding standing. But Flast was considerably narrowed in the 1982 case, Valley Forge College v. Americans United, 454 U.S. 464. The United States Department of Health, Education, and Welfare had given a seventy-seven acre tract of land to Valley Forge Christian College. A lawsuit was brought by taxpayer plaintiffs to stop the transfer as violating the Establishment Clause. In some respects, the facts of Valley Forge and Flast were quite similar; both involved government resources going to private religious groups. But the claims in Valley Forge were different in one key way, the Court reasoned. The plaintiffs in Valley Forge were not challenging the disposition of funds, but rather the disposition of property. Thus, the action was taken pursuant to Congress’s power to dispose of government property in Article IV, } 3 of the Constitution, rather than Congress’s power to tax and spend in Article I, } 8. The difference, the Court reasoned, meant that the taxpayers had not shown that first Flast nexus—the nexus between taxpayer status and the legislation challenged.
Many have taken issue with the logic of Valley Forge, questioning whether the distinction drawn in Valley Forge was sensible or self-serving. But no one doubts that Valley Forge was a marked departure from Flast in attitude and result. After Valley Forge, the rule now seems to be that taxpayer standing is allowed only when a taxpayer is challenging, under the Establishment Clause, a grant of government funds. Yet this exception should not be minimized. Narrow though it may be, it is still the reason why standing existed in the twenty-odd Supreme Court cases challenging government funds going to religious schools and organizations. Yet, the broader intimations of Flast—the suggestion that taxpayer standing might eventually be recognized for constitutional violations more generally—have been quieted, apparently for good.
One last point should be made. All the foregoing relates to the doctrine of federal taxpayer standing— that is, the rights of citizens to challenge actions of the federal government by virtue of their status as federal taxpayers. We have not yet said anything about state taxpayer standing doctrine—that is, the rights of citizens to challenge actions of state governments by virtue of their status as state taxpayers. These two doctrines are separate and distinct, even though courts and commentators often confuse them. The rules regarding state taxpayer standing are less articulated and more uncertain. The leading case is Doremus v. Board of Education, 342 U.S. 429, a 1952 case that denied state taxpayer standing to challenge a state statute requiring Bible readings in public schools because the readings did not involve the expenditure of any funds. Although Doremus seems slightly more permissive than Valley Forge as regards standing, it may just be a matter of time before the two standards are unified.
CHRISTOPHER C. LUND
References and Further Reading
- Berg, Thomas C. The State and Religion in a Nutshell. 2nd ed., West Publishing Group, 2004.
- Chemerinsky, Erwin. Constitutional Law: Principles and Policies. New York: Aspen Law and Business, 1997, } 2.5.
- Staudt, Nancy C., Taxpayers in Court: A Systematic Study of a (Misunderstood) Standing Doctrine, Emory Law Journal 52 (2003): 6:771–847.
- Tribe, Laurence H. American Constitutional Law. 3rd ed. Minneapolis, MN: West Publishing Company, 2000.
Cases and Statutes Cited
- Doremus v. Bd. of Educ., 342 U.S. 429 (1952)
- Flast v. Cohen, 392 U.S. 83 (1968)
- Frothingham v. Mellon, 262 U.S. 447 (1923)
- Valley Forge College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982)