holding that taxpayers have an adequate stake in the outcome of Establishment Clause litigation to satisfy Article III standing requirements, after stating that “[o]ur history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general”
How later courts described this case
- holding that taxpayers have an adequate stake in the outcome of Establishment Clause litigation to satisfy Article III standing requirements, after stating that “[o]ur history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general”
- explaining that “[t]he 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” (quoting Hein, 127 S.Ct. at 2565)
- recognizing that Article III justiciability is "a concept of uncertain meaning and scope," and employing iceberg metaphor to describe the words "cases" and "controversies," which, the Court cautioned, "contain[ ] beneath their surface simplicity submerged complexities which go to the heart of our constitutional form of government"
- explaining that “no justiciable controversy is presented when ... the parties are asking for an advisory opinion” and that the “oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions”
Written by the judges who cited it.
Later courts went against this
Questioned by Kong v. Scully, 341 F.3d 1132 (2003)
But assuming as we must the continued vitality of Flast, Kong has standing, and we have jurisdiction.
Questioned by Utsey v. Coos County, 176 Or. App. 524 (2001)
But more recently, Flast itself has been questioned, and the Supreme Court now consistently relies on Mellon, Levitt, and the historical justification articulated by Justice Frankfurter in Coleman.
Distinguished
Distinguished by Lawrence Rothblum v. Board of Trustees of the College of Medicine & Dentistry of New Jersey Appeal of Lawrence Rothblum, 474 F.2d 891 (1973)
In addition, the plaintiffs’ assertion of standing as federal taxpayers under Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), is inapposite.
Distinguished by Benson v. City of Minneapolis, 286 F. Supp. 614 (1968)
Thus, Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942 (1968), is distinguishable, first, because we do not have a First Amendment Establishment Clause attack before us, and it is debatable whether the language of the opinion should be read to extend beyond such an attack, and, second, because the Court recognized that standing will not be conferred for all allegations of unconstitutionality in that no standing
The opinion
Mr. Justice Stewart,
concurring.
I join the judgment and opinion of the Court, which I understand to hold only that a federal taxpayer has standing to assert that a specific expenditure of federal funds violates the Establishment Clause of the First Amendment. Because that clause plainly prohibits taxing and spending in aid of religion, every taxpayer can claim a personal constitutional right not to be taxed for the support of a religious institution. The present case is thus readily distinguishable from Frothingham v. Mellon, 262 U. S. 447 , where the taxpayer did not rely on an explicit constitutional prohibition but instead questioned the scope of the powers delegated to the national legislature by Article I of the Constitution.
As the Court notes, “one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general.” Ante, at 103. Today’s decision no more than recognizes that the appellants have a clear stake as taxpayers in assuring that they not be compelled to contribute even “three pence ... of [their] property for the support of any one establishment.” Ihid. In concluding that the appellants therefore have standing to sue, we do not undermine the salutary principle, established by Frothingham and reaffirmed today, that a taxpayer may not “employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System.” Ante, at 106.