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
*115 Mr. Justice Fortas,
concurring.
I would confine the ruling in this case to the proposition that a taxpayer may maintain a suit to challenge the validity of a federal expenditure on the ground that the expenditure violates the Establishment Clause. As the Court’s opinion recites, there is enough in the constitutional history of the Establishment Clause to support the thesis that this Clause includes a specific prohibition upon the use of the power to tax to support an establishment of religion. * There is no reason to suggest, and no basis in the logic of this decision for implying, that there may be other types of congressional expenditures which may be attacked by a litigant solely on the basis of his status as a taxpayer.
I agree that Frothingham does not foreclose today’s result. I agree that the congressional powers to tax and spend are limited by the prohibition upon Congress to enact laws “respecting an establishment of religion.” This thesis, slender as its basis is, provides a direct “nexus,” as the Court puts it, between the use and collection of taxes and the congressional action here. Because of this unique “nexus,” in my judgment, it is not far-fetched to recognize that a taxpayer has a special claim to status as a litigant in a case raising the “establishment” issue. This special claim is enough, I think, to permit us to allow the suit, coupled, as it is, with the interest which the taxpayer and all other citizens have in the church-state issue. In terms of the structure and basic philosophy of our constitutional government, it would be difficult to point to any issue that has a more intimate, pervasive, and fundamental impact upon the life of the taxpayer — and upon the life of all citizens.
Perhaps the vital interest of a citizen in the establishment issue, without reference to his taxpayer’s status, *116 would be acceptable as a basis for this challenge. We need not decide this. But certainly, I believe, we must recognize that our principle of judicial scrutiny of legislative acts which raise important constitutional questions requires that the issue here presented — the separation of state and church — which the Founding Fathers regarded as fundamental to our constitutional system— should be subjected to judicial testing. This is not a question which we, if we are to be faithful to our trust, should consign to limbo, unacknowledged, unresolved, and undecided.
On the other hand, the urgent necessities of this case and the precarious opening through which we find our way to confront it, do not demand that we open the door to a general assault upon exercises of the spending power. The status of taxpayer should not be accepted as a launching pad for an attack upon any target other than legislation affecting the Establishment Clause. See concurring opinion of Stewart, J., ante, p. 114.
See ante, at 104, n. 24.