Petition — Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.
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80-327
No.
Supreme Court, U. S.
FILED
AUG3 0 1980
L_MicHaeL RODAK, JR., CLERK
Supreme Court of the United States
October Term, 1980
VALLEY FORGE CHRISTIAN COLLEGE,
: Petitioner,
and
THE UNITED STATES DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE,
THE UNITED STATES OF AMERICA
v.
AMERICANS UNITED FOR SEPARATION OF CHURCH AND
STATE, INC.. ANDREW LEIGH GUNN, EDWARD E.
DOERR, GIOELE SETTEMBRINI, and E. MALLARY
BINNS,
Respondents.
‘ PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT.
C. Ciarkx Honcson, Jr.,
GEORGANNE DAHER TERRILL,
STRADLEY, RONON, STEVENS & YOUNG,
1300 Two Girard Plaza,
Philadelphia, Pennsylvania. 19102
Telephone: (215) 569-3800
Attorneys for Petitioner,
Valley Forge Christian College.
International Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711
QUESTIONS PRESENTED
1. If pursuant to Act of Congress the federal govern-
ment transfers to a church-related college personal and
real property which is “surplus” to governmental require-
ments, will a citizen-separationist or any citizen, without
taxpayer status, have standing to challenge the transfer as
action which violates the Establishment Clause?
2. Does the alleged violation of a citizen’s right “. . .
to a Government that does not establish religion”,’ satisfy
the injury in fact requirement of standing, where the citi-
zen fails to meet the criteria for taxpayer standing man-
dated by this Court in Flast v. Cohen, 392 U. S. 83
(1968)? ?
1. Americans United for Separation of Church and State, et al.
v. United States Department of Health, Education end Welfare,
et al., 619 F. 2d 252, 254 (3d Cir. 1980) (A. 1).
2. The caption of this case identifies the names of all parties
to the proceeding in the United States Court of Appeals for the
Third Circuit.
(i)
TABLE OF CONTENTS
SS NE (LEU cp adecncccedenstvccccesecctones
GEATEMENT OF JUREBDEGTION 0.020000 sccccscesccccccsccene
CONSTITUTIONAL AND STATUTORY PROVISIONS .............++
a SC i ec enebaneeereeeeasccces
APPENDIX:
Opinion of the United States Court of Appeals for the
Third Circuit, Americans United for Separation of
Church and State, Inc., Gunn, Andrew Leigh, Doerr,
Edward D., Settembrini, Gioele, Binns, E. Mallary,
Appellants v. United States Department of Health,
Education and Welfare, United States of America,
Northeast Bible College, a/k/a Valley Forge Chris-
tian College, No. 79-1221, filed April 8, 1980, 619
AMER: . is sedectbuccongicceetaadnpae's
Order of the United States District Court for the Eastern
District of Pennsylvania, Americans United for Sepa-
ration of Church and State, Inc., Andrew Leigh
Gunn, Edward E. Doerr, Gioele Settembrini, and
E. Mallary Binns, Plaintiffs v. The United States
Department of Health, Education and Welfare, The
United States of America, and Valley Forge Chris-
tian College, Defendants, Civil Action No. 77-1321,
SCE: DOOD: ccedsncs ec voncinedebeasve
Al
TABLE OF CONTENTS (Continued).
Page
Judgment of the United States Court of Appeals for the
Third Circuit, Americans United for Separation of
Church and State, Inc., Gunn, Andrew, Leigh, Doerr,
Edward D., Settembrini, Gioele, Binns, E. Mallary,
Appellants v. The United States Department of
Health, Education and Welfare, The United States
of America, Northeast Bible College, a/k/a Valley
Forge Christian College, No. 79-1221, dated April
GU SANK, cRNA Sees Sdnens edn ceetecsesocqseneep A45
Order Denying Petition for Rehearing En Banc of the
United States Court of Appeals for the Third Circuit,
Americans United for Separation of Cherch and
State, Inc., et al, Appellants v. The United States
Department of Health, Education and Welfare, et al.
No. 79-1221, dated June 3, 1980 ..............00. A47
United States Constitution, Relevant Articles and Amend-
SLs 5 5's chs Rade we a bh ve wag seneendaa ened ae A49
Federal Property and Administrative Services Act of 1949,
40 U. S. C. § 471 et seq. (1970), relevant provisions A50
(iti)
TABLE OF AUTHORITIES
Cases: Page
Alabama v. Texas, 347 U. S. 272 (1954) .........seceeeees 10
American Jewish Congress v. Vance, 575 F. 2d 939 (D. C.
SE ee SCs in senchot.iaesd cvigbbesdecevse ee 8, 15
Americans United for Separation of Church and State, Inc.,
et al. v. United States Department of Health, Education
and Welfare, et al., 619 F. 2d 252 (3d Cir. 1980) ...i, 1,5, 10,
11, 12, 13, 16, 17, 19, 20
Arlington Hts. v. Metro Housing Corp., 429 U. S. 252 (1977) 14
Ashwander v. T. V. A., 297 U. S. 288 (1936) .............. 10
Ass'n of Data Processing v. Camp, 397 U. S. 150 (1970) ..... 17
Damar ¥. Cate, SEP UW. G.TBS (IBGE)... cc nccccvnsccscccces 16
Boston Stock Exch. v. State Tax Comm., 429 U.S. 318 (1977) 14
Flast v. Cohen, 392 U. S. 83 (1968) ......... i, 9, 10, 12, 13, 15, 16
Frothingham v. Mellon, 262 U. S. 447 (1923) ............. 10
Hunt v. McNair, 413 U. S. 734 (1973) .........cccececeees 6
Kleppe v. New Mexico, 426 U. S. 529 (1976) .............. 10
Roemer v. Board of Public Works of Maryland, 426 U. S. 736
DEE ReUCRGh EN eke Socbesd onccdeebapecesteeecuns 6
Schempp v. Abington School District, 374 U. S. 203 (1963) 16
Schlesinger v. Reservists Committee to Stop the War, 418
SO kc sececenns 8, 10, 11, 15, 16, 18, 20
Sierra Club v. Morton, 405 U. S. 727 (1972) ...........45. 8, 15
Simon v. Eastern Kentucky Welfare Rts. Org., 423 U. S. 26
8, 15, 16
Tilton v. Richardson, 403 U, S, 672 (1971) .............05. 6, 20
U. S. v. Richardson, 418 U. S. 166 (1974) ..............4. 8, 10
Van Brocklin v. Tennessee, 117 U. S. 151 (1886) .......... 10
Walz v. Tax Commission, 397 U. S. 664 (1970) ............ 19
Warth v. Seldin, 422 U. S. 490 (1975) ......... cece eee ees 8,14
(iv)
TABLE OF AUTHORITIES (Continued)
Statutes: Page
ne irs achonbsiesseesis el pag eetivocs 2
ed: oda aeuvubhshecsceeccdhensesectsen 5
Federal Property and Administrative Services Act of 1949,
Se Ones ta ON k C0 00R, (IIIS) ni. oc ccc cccccccccess 3, 4,5,9
United States Constitution:
ee CO ced anibledecesnccewseeveheos se 10
RSS EE re i, 3, 6, 9, 12, 13, 19
Tic cu clal ccsnsdbeyescbsccnccvdedese 17
OG Sota dnl scudiiegd sonic dacccdcvueese’ 3,9
GN 3,9
i «li. live rau teekbteccecsbeaseteass 3, 5, 13, 19
Ee eas tc reas ct bea oaseecényabeevetes 10
a a FS a Pe 10
Authorities:
Sorauf, The Wall of Separation (Princeton University Press
Diu MEER oe cheddans sanededvodescesesaaess see 15, 19
L. Tribe, American Constitutional Law § 319, at 85 (1978)... 1
(v)
OPINIONS
The December 15, 1978 order of the District Court
granting Petitioner's motion for summary judgment is un-
reported. (A42)
_ The three opinions of the United States Court of
Appeals for the Third Circuit (majority opinion by Adams,
J., concurring opinion by Rosenn, J., dissenting opinion by
Weis, J.) are reported as: Americans United for Separation
of Church and State, Inc., et al. v. United States Depart-
ment of Health, Education and Welfare, et al. at 619 F. 2d
252 (3d Cir. 1980) (Al)
(1)
2 Petition for Writ of Certiorari
JURISDICTION
On April 8, 1980, the United States Court of Appeals
for the Third Circuit rendered the judgment which peti-
tioner seeks to have reviewed. On June 3, 1980, that Court
denied petitioner’s petition for rehearing en banc. The
jurisdiction of this Court is invoked pursuant to 28 U. S. C.
§ 1254(1).
Petition for Writ of Certiorari 3
CONSTITUTIONAL AND STATUTORY PROVISIONS
U. S. Const. Art. I, § 8, Cl. 1 A49
U. S. Const. Art. III, § 2, Cl. 1 A49
U. S. Const. Art. IV, § 3, Cl. 2 A49
U. S. Const. Amend. I A50
Federal Property and Administrative Services Act of
1949, 40 U. S. C. § 471 et seq. (1970) A50, 51 .
4 Petition for Writ of Certiorari
STATEMENT OF THE CASE
In 1973, the Secretary of Defense ordered the closing
of a military hospital near Valley Forge, Pennsylvania,
having declared the facility “excess” to the requirements
of all military branches of the Defense Department. There-
after, the property was reported as “excess” to the General
Services Administration (“GSA”) which offered the facility
to all other federal government agencies in accordance
with the procedures prescribed by the Federal Property
and Administrative Services Act of 1949 (“Federal Property
Act”).’ No other agency indicated a need for the facility
whereupon GSA declared the property “surplus”* to the
requirements of the federal government. The hospital
property was assigned to the Department of Health, Edu-
cation and Welfare (“HEW”) for disposal to either a
health or an educational institution in accordance with
procedures prescribed by the Federal Property Act.’
Several health or educational institutions, some public,
others private applied to become transferees of portions of
the tract. Following extensive studies done by local and
federal agencies of the merits of these applicants, the Peti-
tioner, Valley Forge Christian College, was selected to
receive a portion of the real estate and some personal
property formerly utilized by the military hospital. Peti-
tioner, which is affiliated with the Assemblies of God
Church, had been conducting its educational activity at a
facility it had outgrown.
3. 40 U. S. C. § 471 et seq. (1970) (A. 50).
4. “Surplus” is defined in regulations promulgated under the
Federal Property Act and “. . . when used with respect to real
property means any excess real property not required for the
needs and the discharge and the responsibilities of all Federal
Agencies as determined by the Administrator or his designee.”
45 CFR Part 12.
5. 40 U. S. C. § 484(k)(1) (A. 50).
Petition for Writ of Certiorari 5
In accordance with the Federal Property Act,” HEW
granted Petitioner a “public benefit allowance” pursuant to
which it must earn the right to use the property over a
period of thirty years through a bestowal of public bene-
fits in conducting its educational program.
In August, 1976, HEW conveyed a portion" of the
hospital property to Petitioner. Subsequently, Petitioner
relocated its campus to the property and rehabilitated the
facility at substantial cost. For the last four years, Peti-
tioner has continuously occupied and maintained the fa-
cility as a college.
This action was instituted against the Petitioner by
the filing of an amended complaint on July 12, 1977."
The Respondents and plaintiffs in the District Court are
Americans United for Separation of Church and State, Inc.,
a non-profit corporation, and four individuals who are em-
ployed by the organization. Jurisdiction of the District
Court is founded upon 28 U. S. C. § 1331, since the Re-
spondents alleged that their claim arose under the First
Amendment.
The amended complaint challenged HEW’s transfer
of the property on allegations that Petitioner's sectarian °
6. 40 U.S. C. § 484(k)(1)(C) (A. 51).
7. Petitioner received approximately 77 acres. with buildings
from a tract consisting of approximately 180 acres which had been
utilized by the military hospital until its closure three years before.
8. The complaint was originally filed in the United States
District Court for the District of Columbia naming as a defendant
only HEW. It was transferred, apparently with the agreement of
Respondents and HEW, to the United States District Court for the
Eastern District of Pennsylvania on March 24, 1977. An amended
complaint filed July 12, 1977 named Petitioner as a co-defendant
with HEW.
9. Judge Adams wrote: “The Valley Forge Christian College
is admittedly sectarian.” Americans United, supra, at 253 (A. 3).
The “admission” to which the Court refers is certainly not one of
6 Petition for Writ of Certiorari
character disqualified it under the Establishment Clause as
a transferee of government property. Respondent sought
a declaration that the transfer violated the First Amend-
ment, that the transaction be rescinded, that HEW be
enjoined from making the transfer and that Respondents
be awarded their attorneys’ fees and costs. (Amended
Complaint )
Following the completion of discovery,” HEW
moved to dismiss the complaint and Petitioner moved for
summary judgment. Both motions sought dismissal of
the action on the grounds that Respondents lacked stand-
ing to sue. The District Court, in an unreported order
dated December 15, 1978 (A. 42), granted the parties’
motions and dismissed the complaint.
9. (Cont'd. )
the Petitioners. Since the complaint was dismissed prior to a trial
on the merits, the question of whether or not this institution would
or would not qualify under the First Amendment to be a transferee
of surplus property has never been litigated. For a college to be
“sectarian” or “church-related” is hardly co-extensive with “religion”
as used in the Establishment Clause. See Roemer v. Board of
Public Works of Maryland, 426 U. S. 736 (1976); Hunt v. McNair,
413 U. S. 734 (1973); Tilton v. Richardson, 403 U. S. 672 (1971).
10. Respondents’ interrogatories to HEW and to Petitioner
were answered. Petitioner's interrogatories and requests for pro-
duction of documents addressed to Respondents were answered.
Petitioner took the depositions of the individual Respondents,
Andrew Leigh Gunn, Edward E. Doerr, Giole Settembrini and
E. Mallory Binns. The depositions were transcribed and filed.
Affidavits of Lois M. Sparklin, an employee of HEW, William J.
Sheehan, Executive Director of the President's Economic Adjust-
ment Committee and the Director of the Office of Economic
Adjustment, Office of the Secretary of Defense; and Richard Coff-
man, an appraiser, were filed in connection with Fetitioner’s
motion for summary judgment. The foregoing in addition to the
pleadings constitute in the main the record before the District
Court and the Court of Appeals,
Petition for Writ of Certiorari 7
Respondents appealed to the United States Court of
Appeals for the Third Circuit and on April 8, 1980 that
Court filed its three opinions (majority, concurring and
dissent) and by vote of two to one reversed the District
Court and directed that the action be remanded. On
June 3, 1980, the Third Circuit denied Petitioner's petition
for a rehearing en banc. This petition for a writ of cer-
tiorari followed.
8 Petition for Writ of Certiorari
ARGUMENT
The Majority Has Embraced a Concept of Standing
Presented to the Court in 1968 and Not Accepted by It at
That Time, or Since. If the Basic Principles of Standing
Prove to Be Unworkable or Undesirable, Then It Is the
Supreme Court and Not a Court of Appeals That Has the
Right to Change Them. Weis, J. Dissenting, Americans
United, 619 F. 2d 252, 271 (3d Cir. 1980). (A. 41)
A Court of Appeals has repudiated Flast v. Cohen,"
formulated a unique, unheard of and unknown test au-
thorizing citizen standing for constitutional litigation,
ignored five other opinions of this Court and placed
itself in conflict with at least one other circuit."* The
judgment of the Third Circuit deserves review by this
Court at the behest of Petitioner, a tiny college of about
500 students ** threatened with the loss of its campus
after four years of happy occupancy. Petitioner's
“wrongdoing” was to apply, with other applicants, for a
piece of surplus government property under a procedure
authorized by federal statute. Until this lawsuit, the Fed-
eral Property Act had never been challenged in its thirty-
one year history; none of the hundreds and hundreds of
11. 392 U. S. 83 (1968).
12. Simon v. Eastern Kentucky Welfare Rts. Org., 423 U. S.
26; Warth v. Seldin, 422 U. S. 490 (1975); Schlesinger v. Reservists
Committee to Stop the War, 418 U. S. 208 (1974); U. S. wv
Richardson, 418 U. S. 166 (1974); Sierra Club v. Morton, 405 U. S.
727 (1972).
13. American Jewish Congress v. Vance, 575 F. 2d 939 (D. C.
Cir. 1978).
14. This was the student enrollment for the academic year
(1977-1978). Defendant Valley Forge Christian College Answers
to Plaintiffs Interrogatories, No. 24.
Petition for Writ of Certiorari 9
surplus property transfers to health and educational insti-
tutions (including those which were church-related) had
ever been questioned.
Petitioner has been fighting for its life, strangled by
litigation: first, as a defendant in a case of first impression
in the District Court, and now as the unwilling victim of a
fundamental change in standing jurisprudence, having
been ordered by the Circuit Court to proceed to a trial in
the District Court unless this Court will intercede.
The amended complaint asserted that each of the in-
dividual Respondents were taxpayers who challenged the
transfer of surplus government property as violative of
the Establishment Clause. (Amended Complaint {{ 3-6)
This Court’s heralded decision in Flast permitted tax-
payers access to a federal court to challenge the constitu-
tionality of a congressional exercise of the power to tax
and spend provided (a) that the taxpayer could demon-
strate a logical link between his taxpayer status and the
type of legislative enactment challenged and (b) that he
could establish a nexus between taxpayer status and the
precise nature of the constitutional infringement alleged.
Flast required that the legislation challenged be a con-
gressional exercise of the taxing and spending power
granted by Art. I, § 8 of the Constitution. Flast and sub-
sequent opinions of this Court have explained that the
taxpayer can demonstrate the existence of a logical con-
nection between taxpayer status and the constitutional
provision assailed only by statutes whose constitutional
source was the taxing and spending power of Art. I, § 8.
The Federal Property Act challenged by these Respond-
ents is the exercise of the power granted to Congress
under Art. IV, §3, Cl. 2, referred to as the “Property
Clause.” (A. 49) That clause authorizes Congress to
pass appropriate legislation respecting the disposition of
federal property. The Federal Property Act of 1949 is
10 Petition for Writ of Certiorari
undeniably a congressional exercise of its power granted
under the property clause and not of its taxing and spend-
ing power. Van Brocklin v. Tennessee, 117 U. S. 151
(1886); Ashwander v. T. V. A., 297 U. S. 288 (1936);
Alabama v. Texas, 347 U. S. 272 (1954) and Kleppe v.
New Mexico, 426 U. S. 529 (1976).
This Court has consistently applied Flast in denying
prospective plaintiffs the right to utilize the federal courts
to complain about congressional action whose power
source is not the taxing and spending clause. See, U. S.
v. Richardson, 418 J. S. 166 (1974) (standing denied
because legislation in question was enacted pursuant to
Art. I, §9, Cl. 7) and Schlesinger v. Reservists Commit-
tee to Stop the War, 418 U. S. 208 (1974) (standing
denied where the taxpayer’s challenge was to action under
the “Incompatibility Clause” of Art. I, §6, Cl. 2); see
also, Frothingham v. Mellon, 262 U. S. 447 (1923) (deny-
ing standing to a taxpayer challenging legislation em-
powered by the Fifth and Tenth Amendments). In
fidelity to these precepts, the District Court dismissed the
complaint.
The Court of Appeals agreeing that the Respondents
failed the Flast criteria and hence lacked taxpayers’ stand-
ing,” nevertheless reversed, holding “. . . the Establish-
ment Clause creates in each citizen a ‘personal constitu-
tional right’ to a Government that does not establish
religion.” Americans United, supra at 265. (A. 29) In
so doing, Judge Adams observed that this case presented
the Court below with the opportunity to answer:
15. The majority wrote:
We do not dispute the district court’s determination that under
the law as it presently exists, individuals asserting solely their
interest as taxpayers have standing to challenge only exercises
of the taxing and spending power, and not actions authorized
by other constitutional provisions. Americans United, supra,
260 (A. 18).
Petition for Writ of Certiorari ll
... the novel and important question posed by Jus-
tice Fortas in Flast which the Court did not reach
and thus did not decide: whether the vital interest of
a citizen in the establishment issue, without reference
to his taxpayer's status, would be acceptable as a
basis for [standing to bring] this [kind of] challenge.
Americans United, supra at 262. (A, 21-22)
The Court of Appeals’ response to this question is
remarkable:
“An allegation of injury in fact to an interest pro-
tected by the Establishment Clause is all that is re-
quired for standing.” (Emphasis supplied) Ameri-
cans United, supra at 265. (A. 28)
To the complex literature of standing, already overbur-
dened with formulae and criteria, the Circuit Court has
added the concept chat plaintiffs’ “shared individuated "
right” in a government that does not establish religion is
the “direct” or “concrete” injury required by a plaintiff
who seeks to deploy the federal judicial machinery. This
phraseology, alien to the language of standing, does not
overcome this Court's refusal to recognize standing for a
plaintiff whose injury is no more than “abstract injury in
non-observance of the Constitution asserted by [plaintiffs]
as citizens.” Schlesinger, supra at 223, n. 13. As will be
seen, these Respondents are ideological plaintiffs, “sepa-
rationists”, Americans United, supra at 261 (A. 18) who
are unaffected and unharmed by the transfer, but who
16. The majority opinion defines “individuated” in this fashion:
To be individuated, ‘an interest need only be expressible in
terms of the individual litigants’ concrete satisfaction or ex-
periences; but such saitfsactions or experiences need not be
unique to the litigant’ (quoting L. Tribe, American Constitu:
tional Law § 319, at 85 (1978) Americans United, supra 259
(A. 14).
12 Petition for Writ of Certiorari
seek to engage in “forensic” litigation; they do not invoke
the judicial process for the healing of injury. If Re-
spondents have standing, then the Third Circuit's opinion
has guaranteed to every citizen the right to a federal
forum to debate his grievances with government.
For this Court to follow the majority's lengthy journey
to repudiate Flast and ultimately recognize citizen stand-
ing demands a consideration and acceptance of several
subsidiary premises:
First, that the Flast Court was limited by the plead-
ings: had the Flast plaintiffs alleged something more than
their taxpayer status, this Court would have held in Flast
“, . . that the Establishment Clause does create in every
citizen a personal constitutional right, such that any citi-
zen, including taxpayers, may contest under that clause
the constitutionality of federal expenditures.” Americans
United, supra at 262. (A. 21)
Secondly, the Court must appreciate that while these
Respondents pleaded only their taxpayer status, actually
their “essential contention”, Americans United, supra 234
(A. 4) is that government conduct injured them offering
this Court the opportunity that it did not have in Flast
to change the law.
Finally, this Court must agree that the ideology of
an absolute separatist position distinguishes these Re-
spondents from the rest of the American citizenry and
warrants standing, or alternatively, independent of their
separatist goals, these plaintiffs as citizens have standing
to sue under the Establishment Clause, even though they
have not achieved taxpayer status.
Flast Revisited and Retreaded
The Court of Appeals agreed with the District Court
that Respondents lacked taxpayer standing but said that
the District Court erred in misperceiving” . . . the legal
Petition for Writ of Certiorari 13
identity assumed by the [Respondents] in this case.”
Americans United, supra at 254. (A. 4) “the heart of
[Respondents’] complaint is that the challenged govern-
mental action caused ‘injury in fact’ to their shared in-
dividuated right to a government that . . .” does not vio-
late the First Amendment. If the heart of the complaint
be located within its four corners, then it beats strongly
over injury to the individual Respondents as taxpayers;
the murmur of injury to a “shared individuated right”
heard by the Court can be neither seen nor heard by any
fair examination of the amended complaint."
The fact that the pleadings in this case are different
than the pleadings in Flast, says the Court below, offers
it the opportunity to embrace a theory which, but for
pleading inhibitions, this Court in 1968 was rendered un-
able to articulate.
The fallacy of this perception is that neither the
amended complaint nor the record here support, nor did
the record in Flast or the subsequent opinions of this
Court indicate that apart from taxpayer status any citizen
has standing.
As to the record below, the amended complaint identi-
fies the individuals as taxpayers and the organizational
plaintiff as a non-profit corporation. It is asserted that
each taxpayer “. . . would be deprived of the fair and
17. As to each of the allegations respecting the plaintiffs’
status, the complaint pleads: [the individual] is a citizen of the
United States (Amended Complaint {{ 3-6). Even the statement
of the claim does not relate the injury personally to Respondents.
They allege:
the granting of property or other financial assistance to such
colleges is a violation of the Establishment Clause of the First
Amendment of the Constitution of the United States of
America which states ‘Congress shall make no law respecting
the establishment of religion .. .. (Amended Complaint,
{ 12)
14 Petition for Writ of Certiorari
constitutional use of his (her) tax dollar for constitutional
purposes in violation of his (her) rights under the First
Amendment... .”. (Amended Complaint, {8) No other
basis of standing is asserted. Discovery conducted both
by interrogatories and depositions was unilluminating as
to Respondents’ supposed stake in the outcome of this liti-
gation. Respondent Gunn, for example, said he sustained
a pocketbook injury because if property was given away
he would be obliged as another taxpayer to “. . . make
up the difference.” '* Another, while agreeing that the
future reduction of taxes would be “comparatively small”,
nevertheless linked the injury to his taxpayer status."”
The organizational Respondent's standing to sue is
based upon the assumed status of its members as federal
taxpayers and upon their personal right to redress alleged
constitutional grievances. (Amended Complaint, §2) It
did not claim taxpayer status; it cannot be a Flast plaintiff.
The amended complaint may be read to suggest that the
organization Respondent tenders its special interest in
maintenance of the constitutional principle of church and
state as a basis for its standing to sue.
This Court has held a party may have standing to as-
sert only its own rights, and not the rights of third parties.
Arlington Hts. v. Metro Housing Corp., 429 U. S. 252
(1977). Only where the organization itself has been in-
jured, may it thereafter assert the rights of its members
provided that the organization’s injury is the same as theirs.
Warth v. Seldin, 422 U. S. 490 (1975); see also, Boston
Stock Exch. v. State Tax Comm., 429 U. S. 318 (1977).
In according this organization standing, Judge Adams fails
to apply the criteria which this Court announced in Warth,
supra, which are: first, that the organization must seek
judicial relief from injury to itself and second, that it must
18, Gunn Deposition at 12.
19. Doerr Deposition at 35.
Petition for Writ of Certiorari 15
at least assert the adverse effect of the challenged action
on its members’ associational ties. Warth, supra at 511.
The organization satisfied neither of these criteria.
This Court's opinion in Sierra Club v. Morton” is an
absolute prohibition to “special interest” organizational
standing. In Sierra Club, this Court expressly disapproved
the organizational plaintiff's historic interest in conservation
and held that “mere interest in a problem” no matter how
longstanding and no matter how qualified the organiza-
tion, does not meet the standing test of “distinct and pal-
pable injury” to challenge governmental action. Sierra
Club, supra at 739. See also, Simon v. East Kentucky
Welfare Rts. Org., supra; Schlesinger, supra at 226; Ameri-
can Jewish Congress v. Vance, 575 F. 2d 939 (D. C. Cir.
1978) (denying standing to the separationist *' plaintiff
and holding that “sheer motivation and commitment to the
subject matter of a suit, no matter how strong, cannot sub-
stitute for judicially cognizable injury”. Id. at 943.
The Court's contention that but for pleading limita-
tions, Flast would have announced the principle espoused
by the majority below smacks more of rationalization than
it does of ratio decidendi. None of the opinions of the
Flast Court complains of pleading limitations. Nothing in
the majority opinion suggests a “feel” of more than a con-
ditional willingness to open the door to taxpayer suits. The
opinions of the three-judge court which decided the Flast
case below do not support this focus. That complaint as-
serts taxpayer status and constitutional violation. The re-
search of Judge Weis below, dissenting, who combed the
20, 405 U. S, 727.
21. The plaintiff in this case, the American Jewish Congress,
was named by one scholar as one of the three leading separation-
ists groups in America. The other two are the Respondent organi-
zation and the American Civil Liberties Union. Sorauf, The Wall
of Separation (Princeton University Press 1976).
16 Petition for Writ of Certiorari
record and briefs before this Court in Flast, persuasively
demonstrates that not only does the record not support the
majority's version of what happened, but that the identical
theory adopted by the Circuit Court here was rejected
there. He concludes:
It cannot be said, therefore, that the Supreme Court
was not strongly urged to adopt the theory that the
majority here now advances. American United, supra
at270. (A. 38)
Since Flast, this Court has been presented with fre-
quent opportunities to embrace the hypothesis of the
majority or to forecast in dictum that it is constitutionally
viable. On each occasion this Court has convincingly re-
affirmed Flast. See, Schlesinger, supra, and Simon, supra.
Though the opinion of the Court below acknowledges the
requirements that “[cloncrete injury, whether actual or
threatened, has been an indispensable element of a dispute
and the prerequisite to taxpayer standing”, Schlesinger,
supra at 221, it does no more than pay lip service to this
principle.
Judge Adams’ vonclusion that the violation of a “per-
sonal constitutional right is in and of itself a sufficiently
definite injury to warrant standing” draws support from his
reading of Baker v. Carr, 369 U. S. 186 (1962) and
Schempp v. Abington School District, 374 U. S$. 203 (1963).
He wrote:
The Supreme Court has often recognized that an alle-
gation of “particular concrete injury” to a plaintiff's
fundamental rights, as distinguished from the “abstract
injury” in non observance of the Constitution asserted
by litigants as citizens, can supply standing. Ameri-
cans United, supra at 264. (A. 25)
Petition for Writ of Certiorari 17
But, in Baker the injury was direct and perceptible since
the right to vote was threatened by dilution and in
Schempp parents’ and students’ religious beliefs were im-
pacted by a religious exercise. To say that these Respond-
ents are entitled to a government which will not establish
religion without any other noticeable impact is to say now
to the Schlesinger plaintiff that he is entitled to a govern-
ment that will not violate the incompatibility clause and to
the Richardson plaintiff that a citizen is entitled to a
government which will not violate Art. I, §9, Cl. 7 (re-
lating to the accountability of public monies).
Gloss, rather than substance is the result of laminating
the “zone of interests” test of Data Processing into the
analysis. Americans United, supra at 264. (A. 26) If
government action violates a right protected by a statute
or clause of the Constitutiou, the zone of non-economic
values recognized in Data Processing is not needed. Yet,
the Court implies that the Respondents’ injury may have
something to do with their “spiritual stake and First
Amendment values.” Americans United, supra at 264.
(A. 26) There is no suggestion anywhere in this record
that the Respondents’ spiritual values have been damaged
by the government action here challenged. No other non-
economic value or indirect loss was pleaded and hence
employment of the zone of interests test by the Court
strains the point and remains puzzling.
Citizen-Separationists Are Ideological Plaintiffs; Citizens at
Large Are Not Entitled to Standing
At several points in its opinion, the Court appears to
distinguish these Respondents from the citizenry at large
by creating standing for special interest groups, here,
separationists.” The Court was no doubt concerned with
22. For an exposition of the separationist philosophy, qua
ideology, see Sorauf, supra.
18 Petition for Writ of Certiorari
overcoming the Schlesinger holding that “. . . standing to
sue may not be predicated upon an interest of the kind
alleged here which is held in common by all members of
the public . . .” Schlesinger, supra at 220.
Yet, it seems most unwise to accord standing to citizens
who distinguish themselves from the polity by virtue of a
historic or deep commitment to a principle. Special inter-
est groups with deep commitments to all manner of ideo-
logical principles can be said to be differentiated from the
citizenry at large. Standing for a citizen-separationist with-
out taxpayer standing is the precedent for standing to sue
for organizations and individuals who are citizen-
conservationists, citizen-segregationists, citizen-liberals and
citizen-conversatives and endless hyphenated standing
formulations.
While the pleadings state that the organizational plain-
tiff has been committed to the principle of separation of
church and state, the individual Respondents cannot dis-
tinguish their injury as anything different from that to
citizenry at large. Respondent Settembrini testified that
the injury “could be defined as general,” and can “also be
defined as specific” ** Two other Respondents admitted
that their injury was shared in common with other tax-
payers.”*
The Court affirmed that the Respondents “. . . are
decidedly not ideological plaintiffs . . . intent on adjudi-
cating their own generalized views concerning the legality
of the challenged action.” Americans United, supra.
Separationism is an ideology, a point of view from which
church-state issues are approached. This Court has never
adopted the absolute as the approach to church-state rela-
tions; as Chief Justice Burger observed: “The course of
constitutional neutrality . . . cannot be an absolute straight
23. Settembrini Deposition at 13-14.
24. Gunn Deposition at 25-26; Doerr Deposition at 36.
Petition for Writ of Certiorari 19
line; rigidity could well defeat the basic purpose [of the
First Amendment]}”, Walz v. Tax Commission, 397 U. S.
664, 669 (1970). It is a view which competes with others
such as “accommodationists” ” which is equally an ideol-
ogy. More to the mark, separationism is not the law of the
land, the violation of which gives rise to a personal right of
redress.
Respondents’ depositions illustrate the wisdom of this
Court's rationale for consistently closing federal courts to
the litigation of rhetoric. Lacking harm or injury, Re-
spondents by their lawsuit instead sought to debate what
should have been done with the property. One Re-
spondent thought it should have been utilized for the gen-
eral welfare of all taxpayers.”* Others thought it should
be sold.” That a federal court not be used to permit citi-
zens to second guess governmental choices, but only to
redress wrongs is the foundation of this Court’s standing
rules. That foundation crumbles with the adoption of the
opinion of the Third Circuit.
As the majority opinion winds to conclusion, Judge
Adams appears to relinquish reliance upon these citizens
as separationists and modifies the hypothesis to conclude
that all citizens can challenge Establishment Clause vio-
lations without taxpayer status.
An allegation of injury in fact to an interest protected
by the Establishment Clause is all that is required
for standing. Americans United, supra at 265. (A. 28)
No case decided by this Court has permitted citizen
standing to challenge governmental action absent con-
25. The term “accomodationist” appears in Sorauf, The Wall
of Separation (Princeton University Press 1976) in a chapter called
“The Accommodationist Defendants”.
26. Settembrini Deposition at 13.
27. Gunn Deposition at 12.
20 Petition for Writ of Certiorari
crete injury commonly supplied by taxpayer status. The
concept of citizen standing was rejected by this Court in
Schlesinger. It is apparent, as this Court observed in
Schlesinger:
The only interest all citizens share in the claim ad-
vanced by Respondents is one which presents injury
in the abstract. Respondents seek to have the Judi-
cial Branch compel the Executive Branch to act in
conformity with the [Schlesinger reads the Incom-
patability Clause, but the Establishment Clause cer-
tainly fits], an interest shared by all citizens. Id. at
217.
The majority, conscious of the Schlesinger and Rich-
ardson limitations attempts a distinction which is verbal
at most:
The decision in Reservists and Richardson appear to
be based on the inadequate nature of the plaintiffs’
alleged injury in fact. Americans United, supra at
263. (A. 24)
Yet, the only difference between the injury alleged in
those cases and that alleged here are the differing clauses
of the Constitution. The Court of Appeals has said that
for non-observance of the Establishment Clause a citizen
suffers “concrete” injury; however, the same citizen is
rendered uninjured and powerless to rectify the non-
observance of all other clauses of the Constitution.
In its laborious journey to endorse citizen standing,
it would seem that the Third Circuit failed to observe this
Court’s admonition in Schlesinger:
Our system of government leaves many crucial deci-
sions to the political processes. The assumption that
if respondents have no standing to sue, no one would
have standing, is not a reason to find standing.
Schlesinger, supra at 227.
Petition for Writ of Certiorari 21
CONCLUSION
Valley Forge Christian College respectfully prays the
Court to issue a writ of certiorari to review the judgment
of the United States Court of Appeals for the Third
Circuit.
Respectfully submitted,
C. Crark Hopcson, Jr.
GEORGANNE DAHER TERRILL
STRADLEY, RONON, STEVENS & YOUNG
1300 Two Girard Plaza
Philadelphia, PA 19102
(215) 569-3800
Attorneys for Petitioner,
Valley Forge Christian College
Appendix.
Opinion of the United States Court of Appeals for the
Third Circuit, Americans United for Separation of
Church and State, Inc., Gunn, Andrew Leigh, Doerr,
Edward D., Settembrini, Gioele, Binns, E. Mallary,
Appellants v. United States Department of Health,
Education and Welfare, United States of America,
Northeast Bible College, a/k/a Valley Forge Chris-
tian College, No. 79-1221, filed April 8, 1980, 619
F2d 252 (1980).
UNITED STATES COURT OF APPEALS
For THE Tuirp Circuit
NO. 79-1221
AMERICANS UNITED FOR SEPARATION OF
CHURCH AND STATE, INC., GUNN, ANDREW,
LEIGH, DOERR, EDWARD D., SETTEMBRINI,
GIOELE, BINNS, E. MALLARY,
Appellants
v.
THE UNITED STATES DEPARTMENT OF
HEALTH, EDUCATION AND WELFARE, THE
UNITED STATES OF AMERICA, NORTHEAST
BIBLE COLLEGE, a/k/a VALLEY FORGE
CHRISTIAN COLLEGE
(Al)
A2 Court of Appeals Opinion
On AppeAL FroM THE Unrrep States Districr Court
FOR THE EASTERN District OF PENNSYLVANIA
C. A. No. 77-1321
Argued October 12, 1979
Reassigned, February 7, 1980
Before: ApAMs, ROsENN and Weis, Circuit Judges
(Filed April 8, 1980)
OPINION OF THE COURT.
Apams, Circuit Judge.
The question presented in this appeal is whether an
organization devoted to the separation of church and
state, and several of its members suing as individual citi-
zens, have standing to challenge the transfer of govern-
ment property to a concededly religious organization.
I. FAcruAL BACKGROUND
In August 1976, the Denartment of Health, Educa-
tion and Welfare (HEW) conveyed 77 acres of surplus
government property located in Valley Forge, Pennsyl-
vania, as well as buildings, fixtures, and equipment
situated thereon, to the Valley Forge Christian College.
The property was transferred pursuant to the Federal
Property and Administrative Services Act of 1949, which
authorizes HEW to sell or to lease surplus government
property to tax-exempt institutions for health and educa-
tional purposes.’ In setting the sale or lease value of the
property to be transferred, the Act requires the Secretary
of HEW to consider any benefit that may accrue to the
United States from the designated use of such property,
L 40 U.S.C. § 484(k) (1976).
Court of Appeals Opinion A3
and to grant discounts, known as “public benefit allow-
ances,” to transferees.? In exchange for its agreement to
use the property in conformance with specified educa-
tional purposes for a period of thirty years, HEW granted
to the college a 100% public benefit allowance. As a result,
the property was transferred without any financial pay-
ment by the college. The total fair value of the property,
acquired by the government at an estimated cost of
$10,374,386.00, was stated to be $1,303,730.00 at the time
of transfer.
The Valley Forge Christian College is admittedly
sectarian. Operated under tho supervision of the Assem-
blies of God, the college’s primary purpose is to train
leaders for church-related activities. Its curriculum is
devoted to bible study, Christian service, and theology.
Attendance at daily chapel service and regular participa-
tion in Christian activities is mandatory for all students.
Numerous transfers of government property to hun-
dreds of church-denominated institutions have been au-
thorized under the Act. As a matter of practice, HEW
nearly always grants these organizations a public benefit
allowance ranging from 95% to 100% of the property's
estimated fair value. In this manner, HEW has in most
cases relieved the benefitted religious organizations of the
obligation to make financial payment for property re-
ceived. Since the enactment of this Act, HEW has au-
thorized more than 650 separate transfers of surplus
government property to various religious institutions.
The total fair market value of government property trans-
ferred to denominationally sponsored organizations during
this period amounted to more than $25,700,000.00. The
initial cost of acquiring this property was over
$64,494,000.00.
2. Id. 45 C. F. R. § 12 (1978).
A4 Court of Appeals Opinion
Americans United for Separation of Church and
State, Inc., a nonprofit, tax-exempt organization claiming
a membership of 90,000, and four of its individual di-
rectors, citizens and taxpayers of the United States, chal-
lenged HEW’s transfer of government property to the
Valley Forge Christian College. As defined by its Articles
of Corporation, American United’s purpose is “to defend,
maintain and promote religious liberty and the constitu-
tional principle of the separation of church and state.”
The plaintiffs alleged that this property transfer consti-
tuted a violation of their individual rights protected by
the Establishment Clause of the First Amendment, and
sought declaratory and injunctive relief to void the trans-
fer. On the defendants’ motion, the district court dis-
missed the suit on the ground that plaintiffs lacked
standing as taxpayers to challenge a transfer of property
pursuant to the Federal Property and Administrative
Services Act. This appeal is from that judgment.
Although we accept the district court’s conclusion
that the plaintiffs lack taxpayer standing to contest the
challenged conduct, we disagree with its conception of
the legal identity assumed by the plaintiffs in this case.
Americans United for Separation of Church and State, a
nonprofit organization, is precluded by its very nature
from assuming the status of taxpayer. And while the
four members of this organization suing as individual
plaintiffs do assert standing as taxpayers, none of them
does so exclusively or as a matter of primary concern.
The plaintiffs’ essential contention, rather, is that the gov-
ernmental conduct in question caused them individuated
injury because it abridged their right—protected by the
Establishment Clause of the First Amendment—to a
Government that does not establish religiofi. Because
the constitutional injury complained of by the plaintiffs
gives them a sufficient “personal stake” in the present
Court of Appeals Opinion A5
controversy to assure the court a “complete perspective”
of the issues, and because the interest they seek to pro-
tect is arguably within the zone of interests protected by
the Establishment Clause of the First Amendment, we
hold that the plaintiffs possess legal standing to maintain
this action. Accordingly, we will reverse the judgment
of the district court.
Il. THe STANDING REQUIREMENT IN GENERAL
The concept of standing to sue derives essentially
from Article III of the Constitution, which extends the
federal judicial power only to certain classes of “cases”
and “controversies.”* Standing differs from the other
elements of justiciability in that it focuses primarily on
the status of the litigant, and only secondarily on the issues
he wishes to have adjudicated.‘ Although the case or
controversy requirement provides the framework within
which the question of standing in federal courts must be
considered,’ Article III merely delimits the jurisdiction of
3. U.S. Const. art. III, § 2, states:
The judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United
States, and Treaties made, or which shall be made, under their
Authority;—to all Cases affecting Ambassadors, other public
Ministers and Consuls;—to all Cases of admiralty and mari-
time Jurisdiction;—to controversies to which the United States
shall be a Party;—to Controversies between two or more
States;—between a State and Citizens of another State;—be-
tween citizens of different States;—between Citizens of the
same State claiming Lands under Grants of different States,
and between a State, or the Citizens thereof, and foreign
States, Citizens or Subjects.
4, Flast v, Cohen, 392 U. S, 83, 99 (1968).
5. Association of Data Processing Serv. Organizations v. Camp,
397 U. S. 150, 151 (1970).
A6 Court of Appeals Opinion
federal courts; it neither defines nor is it synonymous
with the doctrinal limitations of standing. As the Su-
preme Court has asserted, “the question of standing is
related only to whether the dispute sought to be adjudi-
cated will be presented in an adversary context and in a
form historically viewed as capable of judicial resolu-
tion.”* Yet, the doctrine of standing reflects as well a
blend of policy considerations that are “not always clearly
distinguished from the constitutional limitation.” '
Courts and commentators have been confounded for
many years by the question of standing.’ To a consider-
able degree, the complexities and uncertainties stem from
its case-by-case course of development, which has been
“more or less determined by the specific circumstances of
individual situations.”* The rules of standing have been
fashioned not in the abstract, but “with specific reference
to the status asserted by the party whose standing is chal-
lenged and to the type of question he wishes to have
adjudicated.” *° For this reason, the Supreme Court has
6. Flast v. Cohen, 392 U. S. 83, 101 (1968), quoted in Associa-
tion of Data Processing Serv. Organization v. Camp, 397 U. S. 150,
151-52 (1970).
7. Id. at 97 (quoting Barrows v. Jackson, 346 U. S, 249, 255
(1953) ).
8. One recent commentator has insisted that the law of stand-
ing “lacks a conceptual framework” and amounts to “little more
than a set of disjointed rules dealing with a common subject.”
Tushnet, The New Law of Standing: A Plea for Abandonment, 62
Cornell L. Rev. 663 (1977). Another has concluded that the “whole
law of standing is so confused and cluttered . . . ‘hat the lower
courts and practitioners especially need Supreme Cow: guidance.”
K. Davis, Administrative Law of the Seventies § 22.00.-01, at 167
(Supp. 1977).
9. United States ex rel. Chapman v. Federal Power Comm.,
345 U.S. 153, 156 (1953).
10, Flast v. Cohen, 392 U. S. 83, 101 (1968).
Court of Appeals Opinion A7
declared that “[g]eneralizations about standing to sue are
largely worthless as such.” "' Only by distinguishing the
different contexts in which the Supreme Court has at-
tempted to give “some meaningful form . . . to the juris-
dictional limitations placed on federal court power by the
concept of standing,” ” is it possible to reach some com-
prehension of what the requirement entails.
Early discussions by the Court regarding the question
of standing were anchored in the notion of a “legally
protected interest” on the part of the litigant.’ Under
this approach, standing to litigate was conditioned on a
showing by the plaintiff that the challenged governmental
action threatened one of his legally protected interests."
11. Association of Data Processing Serv. Organizations v.
Camp, 397 U. S. 150, 151 (1970).
12. Flast v. Cohen, 392 U. S. 83, 99 (1968).
13. See, e.g., Perkins v. Lukens Steel Co., 310 U. S. 113, 125
(1940); Tennessee Elec. Power Co. v. TVA, 306 U. S. 118, 137
(1939); Alabama Power Co. v. Ickes, 302 U. S. 464, 479 (1938).
14. Tenessee Power Co, v. TVA, 306 U. S, 118, 136-37, 147
(1939). The “legal interest” inquiry was a product of the traditional
legal order in which a court's basic function was to settle disputes
between private individuals regarding property or liberty of person.
As civil litigation against government officials evolved, there re-
mained a need to perceive an ownership claim before courts could
recognize an individual whose ownership interest could be adjudi-
cated. It was only natural for courts to seek to accommodate such
litigation within the existing structure of legal thinking and lan-
guage appropriate to private dispute settlement. Challenges to
governmental action thus triggered judicial inquiry into whether
such action had invaded the complainant's legally protected inter-
est. Courts in effect sought guidance from other areas of the law
in order to determine whether a plaintiff's alleged interest was de-
serving of judicial protection. Scott, Standing in the Supreme
Court—A Functional Analysis, 86 Harv. L. Rev. 645, 650 (1973).
For an illuminating discussion, see J. Vining, Legal Identity 13-33
(1978).
A8 Court of Appeals Opinion
Only if the plaintiff demonstrated an invasion of such an
interest would the courts respond to claims of serious harm
or injury resulting from illegality." As challenges to
governmental conduct increased during the course of this
century, however, observation of the “legal interest” test
“became steadily more perfunctory, and the link with
private-dispute settlement more tenuous.” '* Litigants in-
creasingly recognized, and desired to attack, the impact of
governmental conduct on these so-called “noneconomic”
values. Judicial reluctance to deny standing to such indi-
viduals consequently led to the conceptualization of in-
dividual and organizational interests in noneconomic
values as legally protected interests. As the “legal inter-
est” test was increasingly expanded to include such values,
however—especially in the case of challenges brought
under the Constitution and certain statutes that imposed
rules of conduct on the government without specifying
any private remedies for their enforcement—the exercise
began to lose its point, and eventually was abandoned.
In two cases decided in 1970, Association of Data
Processing Service Organization v. Camp“ and Barlow v.
Collins,"* the “legal interest” test for standing, which “had
become symbolically definitive even as it was increasingly
15. As Justice Frankfurter elaborated: “A litigant ordinarily
has standing to challenge governmental action of a sort that, if
taken by a private person, would create a right of action cognizable
by the courts. . . . Or standing may be based on an interest
created by the Constitution or a statute. . . . But if no compar-
able commonlaw right exists and no such constitutional or statutory
interest has been created, relief is not available judicially.” Joint
Anti-Fascist Refugee Comm. v. McGrath, 351 U. S. 123, 152 (1951)
(concurring opinion ).
16. J. Vining, supra note 14, at 23.
17. 397 U. S. 150 (1970).
18, 397 U. S. 159 (1970).
Court of Appeals Opinion A9
ignored,” *® was finally overruled explicitly and replaced
by a new formulation of the standing doctrine.
A. The Modern Law of Standing: Personal Injury in Fact
The modern law of standing, set forth in Data
Processing and Barlow and reaffirmed in the same words
since, requires no more than an allegation that the chal-
lenged official action has caused the plaintiff “injury in
fact, economic or otherwise,” *’ to an interest “arguably
within the zone of interests to be protected or regulated
by the statute or constitutional guarantee in question.” ™
Requiring “injury in fact” ensures that standing to sue is
conferred only on individuals having a “personal stake in
the outcome” of a controversy, and not on those with
merely generalized or external preferences about its out-
come.” Personal injury to a cognizable interest of the
litigant, it is felt, will assure “that concrete adverseness
which sharpens the presentation of issues upon which
the court so largely depends for illumination of difficult
19. J. Vining, supra note 14, at 26-27.
20. Data Processing Serv. Organizations v. Camp, 397 U. S. at
152.
21. Id. at 153.
22. Baker v. Carr, 369 U. S. 186, 204 (1962), quoted in Flast
v. Cohen, 392 U. S. 83, 101 (1968).
For a discussion of the distinction between “personal” and “ex-
ternal” preferences see R. Dworkin, Taking Rights Seriously
234-39 (1977). External preferences need not be independent
of, indeed they may reinforce, personal preferences. See Sierra
Club v. Morton, 405 U. S. 727, 738 (1972) (“The test of injury
in fact goes only to the question of standing to obtain judicial
review. Once this standing is established, the party may assert
the interests of the general public in support of his claims for
equitable relief.” ).
Al0 Court of Appeals Opinion
. . . questions.”™* As a result, when standing is placed
in issue today, the question is “‘whether the person
whose standing is challenged is a proper party to request
an adjudication of a particular issue’ and not whether the
controversy is otherwise justiciable, or whether, on the
merits, the plaintiff has a legally protected interest that
the defendant’s action invaded.” *
23. Baker v. Carr, 369 U. S. 186, 204 (1962), quoted in Barlow
v. Collins, 397 U. S. at 170-71 (Brennan, J., concurring and dissent-
ing). “We may reasonably expect,” as Justice Brennan noted in
Barlow, “that a person so harmed will, as best he can, contest the
issues with the necessary adverseness, and pursue the litigation
vigorously.” 397 U. S. at 172-73 (footnote omitted).
24. Barlow v. Collins, 397 U. S. at 171 (Brennan, J., concurring
and dissenting) (footnote omitted) (quoting in part Flast v. Cohen,
392 U. S. at 99-100). The discrediting of the “legal interest” test,
as Professor Vining has suggested, represented “not simply an incre-
mental development, but a shift in the axioms of legal thinking”
supra note 14, at 39. “The ‘legal interest’ test,” the Supreme Court
said in Data Processing, “goes to the merits. The question of stand-
ing is different.” 397 U. S. at 153. This important distinction be-
tween whether a plaintiff is a proper party to request an adjudica-
tion vf a particular issue and whether that issue itself is justiciable
had been drawn by the Court two years previous in Flast v. Cohen,
392 U. S. 83, 95 (1968). Prior to that decision, however, the exist-
ence or nonexistence of a “legal interest” was not, as the Supreme
Court subsequently held, “a matter quite distinct from the problem
of standing.” Association of Data Processing Serv. Organizations v.
Camp, 397 U. S. at 153 n. 1. On the contrary, prior statements had
bound together standing, the merits, and the remedy. If the plain-
tiff was given standing to assert his claims, his interests were legally
protected; if he was denied standing, his interests were not legally
protected. The separation in Data Processing and Barlow of the
question of standing to sue, on the one hand, from those of the
merits and the remedy, on the other, thus reflected a fundamental
departure. It represented a new awareness of judicial power and a
willingness to address issues and provide remedies even when “the
merits do not seem to focus on the situation of a particular individ-
Court of Appeals Oxinion All
The categories of injury that may be alleged to sup-
port a litigant’s standing to sue have increased consider-
ably since the modern formulation of the standing doc-
trine in Data Processing and Barlow. Various allegations
of harm have been recognized by the Supreme Court as
sufficient to meet the requirement of “injury in fact.”
The most commonly recognized “injury in fact” has been
economic in nature. In Data Processing, for example,
the economic interests of data processors in agency rulings
allowing nationally regulated banks to compete in the
data processing industry supplied the requisite personal
stake for the processors to challenge the agency action.
Yet the Supreme Court went out of its way “to emphasize
that standing may stem from [noneconomic values] as
well as from . . . economic injury.” In particular, the
Court indicated that injury to aesthetic, conservational,
recreational, and spiritual values may satisfy the “injury in
fact” requirement.”
Dictum in Data Processing to the effect that the al-
leged injury necessary to confer standing need not be of
an economic nature was soon fortified. In Sierra Club v.
Morton,” the complainant alleged that a road develop-
ment through a National Park would adversely affect the
scenery and wildlife of the area, and would impair the
enjoyment of the park in the future. Although the Su-
preme Court denied standing because the Sierra Club had
not alleged that its members would be personally injured
by the development, it did not question that “this type of
24, (Cont'd)
ual” or “no remedy restoring or protecting a person as such and by
‘name’ is appropriate.” J. Vining, supra note 14, at 44.
25. 397 U, S. at 154.
26. Id.
27. 405 U. S. 727 (1972).
Al2 Court of Appeals Opinion
harm may amount to ‘injury in fact’ sufficient to lay the
basis for standing.” ** The Court later validated environ-
mental injury as a basis for standing. In United States v.
SCRAP,” a group of law students who used the public
parks challenged an agency ruling allowing a railroad
rate increase which they claimed would result in greater
litter in the parks. Noting that the claimed injury to the
environment was “far less direct and perceptible” than
that at issue in Sierra Club, and that the line of causation
offered was “far more attenuated,” the Court nonetheless
concluded that the plaintiffs had alleged “a specific and
perceptible harm” sufficient to satisfy the test of injury in
fact.”
An allegation that official action violates the plaintiff's
constitutional rights may also set forth a sufficient injury
to meet_the “injury in fact” test. In Baker v. Carr,” for
instance, an’ asserted injury to voting rights supplied the
basis for standing to attack the constitutionality of an
apportionment scheme that allegedly diluted the relative
effectiveness of the plaintiffs’ right to vote. And in Abing-
ton School District v. Schempp,” standing to contest the
constitutionality of Bible-reading in public schools was
conferred on students and their parents who claimed that
the practice violated their individual rights under the
Establishment Clause.
Although it is now unquestioned that standing to
sue may be premised on injury to noneconomic as well
as economic values, “the injury in fact test requires more
28. Id. at 734.
29, 412 U. S. 669 (1973).
30. Id. at 688-89.
31. 369 U. S. 186 (1962).
32. 374 U. S. 203 (1963).
Court of Appeals Opinion Al3
than an injury to a cognizable interest.” The accept-
ance of new categories of judicially cognizable injury
has not eliminated the basic principle that to invoke ju-
dicial power the claimant must allege personal injury
that has been variously described by the Supreme Court
as “particular” or “concrete,” “specific” or “direct,” rather
than “general and abstract.” Desirous to ensure that in-
dividuals most affected by the questioned activity have a
role in the challenge, the Court has consistently refused
to confer standing on plaintiffs seeking to vindicate merely
their own generalized views regarding constitutionality,
legality, or the public interest.** Failure to set forth in-
dividuated injury, therefore, even in the presence of a
“case or controversy,” deprives a litigant of standing. Yet,
as the Sierra Court indicated, the fact that the alleged
injury is “shared by the many rather than by the few
does not make them less deserving of legal protection
through the judicial process.”* So long as an allega-
tion of personal injury to a cognizable interest represents
33. Sierra Club v. Morton, 405 U. S. at 734-35.
34. E.g. Schlesinger v. Reservists Comm. to Stop the War, 418
U. S. 208 (1974); United States v. Richardson, 418 U. S. 166 (1974);
Sierra Club v. Morton, 405 U. S. at 734-35. The Sierra Court readily
conceded that “an organization whose members are injured may
represent those members in a proceeding for judicial review.” But
it nonetheless refused to confer standing on the plaintiff organiza-
tion because the Club failed to allege that it or its members would
be affected in any of their activities by the challenged action. As
the Court explained: “The requirement that a party seeking review
must allege facts showing that he himself is adversely affected does
not insulate executive action from judicial review, nor does it pre-
vent any public interest from being protected through the judicial
process. It does serve as at least a rough attempt to put the de-
cision as to whether review will be sought in the hands of those
who have a direct stake in the outcome.” Id. at 739-40.
35. Id. at 734.
Al4 Court of Appeals Opinion
“an individuated interest of the litigant as distinguished
from the polity as a whole,” it supplies the “personal
stake in the outcome” needed for standing regardless of
how many individuals share that injury. To be individu-
ated, “an interest need only be expressible in terms of the
individual litigant’s concrete satisfaction or experiences;
but such satisfactions or experiences need not be unique
to the litigant.” *
C. Taxpayer Standing
The more “distinctive and discriminating” the harm
alleged by a plaintiff, and the more clearly linked it is to
the action challenged, the more easily a plaintiff may
meet the “injury in fact” test. When a plaintiff claims
such harm, there is no need to consider what must be
set forth to satisfy the standing requirement by a party
who avers no special harm, but sues rather as a taxpayer
to vindicate the interests of taxpayers generally.“ In the
absence of any allegation of individuated injury, however,
an individual suing in his capacity as a taxpayer may
nonetheless be able to demonstrate, under certain limited
circumstances, a sufficient “personal stake in the outcome”
to allow him to argue the merits of the cause.
Flast v. Cohen™ enunciated the modern law of fed-
eral taxpayer standing. As defined by the Court, the
question presented there was “whether a litigant asserting
only his status as a taxpayer has standing to maintain a
36. L. Tribe, American Constitutional Law § 3-19, at 85 (1978).
37. Id. As the Court later held in United States v. SCRAP,
412 U. S. at 687: “standing is not to be denied simply because many
people suffer the same injury.”
38. Barlow v. Collins, 397 U. S. 159, 172 n. 5 (1970) (Brennan,
J., concurring in the result and dissenting ).
39. 392 U. S. 83 (1968).
Court of Appeals Opinion Al5
suit in federal court.” *° Plaintiff-taxpayers in that case
disputed the expenditure of federal funds to finance
instruction and materials for use in religious schools on
the ground that this abridged the Establishment Clause.
In granting standing, the Supreme Court set forth two
rules governing its decision. First, in order to maintain a
suit, a “taxpayer must establish a logical link between
that status and the type of legislative enactment at-
tacked.” *' The Court apparently believed that such link
could be demonstrated only if a successful suit might
possibly result in some decrease in taxes. “Thus,” the
Court explained, “a taxpayer will be a proper party to al-
lege the unconstitutionality only of exercises of congres-
sional power under the taxing and spending clause of
Art. I, § 8 of the Constitution. It will not be sufficient to
allege an incidental expenditure of tax funds in the ad-
ministration of an essentially regulatory statute.” Sec-
ond, the taxpayer must establish a nexus between his
taxpayer status and the nature of the constitutional
transgression claimed. “Under this requirement,” the
Court declared, “the taxpayer must show that the chal-
lenged enactment exceeds specific constitutional limita-
tions imposed upon the exercise of congressional taxing
and spending power and not simply that the enactment
is generally beyond the powers delegated to Congress by
Art. I, § 8.”"
Because the program attacked in Flast dealt with a
substantial expenditure of tax funds, rather than an inci-
dental payment in the administration of an essentially
regulatory statute, the Court found that the plaintiff-
40. Id. at 91 (emphasis added).
41. Id. at 102.
42. Id.
43. Id. at 102-03.
Al6 Court of Appeals Opinion
taxpayer satisfied the first requirement. The Court then
discerned, on the basis of a remark by James Madison,“
an intent on the part of the Framers of the Constitution
to protect taxpayers, as special beneficiaries, from the use
of the taxing and spending power to support religion.
“The Establishment Clause was designed as a specific
bulwark against potential abuses of governmental power,”
the Court elaborated, and it “operates as a specific con-
stitutional limitation upon the exercise by Congress of the
taxing and spending power.” The Court accordingly
granted the plaintiffs standing, “That the Framers could
at most have intended to protect taxpayers as a means to
the protection of religious liberty was inconsequential: it
was enough that they were protected as secondary
beneficiaries.” **
The two-part nexus test of Flast has been criticized.
It is uncertain why a taxpayer should be precluded from
questioning congressional spending authorized by a con-
stitutional provision other than the taxing and spending
clause. All government disbursements and expenditures,
it has been asserted, are exercises of the spending power,
even if also supported by some other constitutional pro-
vision. In addition, it is often difficult to distinguish gov-
ernmental action that is primarily spending from activities
primarily regulatory. The Court has nevertheless “drawn
a sharp if artificial distinction” ‘’ between attacks by tax-
44, “‘[T]he same authority which can force a citizen to con-
tribute three pence only of his property for the support of any one
establishment, may force him to conform to any other establish-
ment in all cases whatsoever. [Memorial and Remonstrance Against
Religious Assessments.] 2 Writings of James Madison 183, 186
(Hunt ed. 1901).’” 392 U. S. at 103.
45. Id at 104.
46. J. Vining, supra note 14, at 109.
47. L. Tribe, supra note 36, § 3-19, at 84 n. 18 (1978).
Court of Appeals Opinion Al7
payers on spending programs as such and attacks on other
kinds of programs. As for the distinction between specific
and nonspecific limitations on the taxing and spending
power, it has been forcefully argued that a taxpayer's stake
in the outcome of the dispute is the same regardless of the
nature of the limitation. “A person who has standing to
challenge for one kind of illegality that adversely affects
him,” Professor Davis contends, “necessarily has standing
to challenge for another kind of illegality that adversely
affects him to the same extent.” ** The Supreme Court
has offered no guidelines for distinguishing between
specific and nonspecific limitations. And while the Court
expressly left open the question whether the Constitution
contains other specific limitations,” taxpayer standing to
challenge official action has since been strictly confined to
actions premised on the Establishment Clause.
III. StranpinG UNDER THE ESTABLISHMENT CLAUSE
The district court first refused to recognize the plain-
tiffs’. standing under the Establishment Clause. Then it
denied jurisdiction on the assumption that the allegation
of injury to plaintiffs’ economic interests in reduced taxes
offered the only possible basis for standing. From this
assumption, the district court decided that the plaintiffs
lack standing as taxpayers under Flast, because they can-
not show a logical link between their taxpayer interest
and the claim sought to be adjudicated. The legislation
authorizing the transfer in question was enacted pursuant
to the property clause of the Constitution, which provides
Congress the “Power to dispose of . . . Property belonging
to the United States.”"* Relying on the suggestion in
48. Davis, Standing—Taxpayers and Others, 35 U. Chi. L. Rev.
601, 604 (1968).
49. Flast v. Cohen, 392 U. S. at 105.
50. U. S. Const. art. IV, § 3, cl. 2.
Al8 Court of Appeals Opinion
Flast that litigants asserting their interest as taxpayers
have standing “to allege the unconstitutionality only of
exercises of Congressional power under the taxing and
spending clause,” the district court concluded that the
logical nexus between the asserted taxpayer interest and
the disposition of the property challenged here is too
strained to bring the plaintiffs within the narrow contours
of taxpayer standing.
We do not dispute the district court’s determination
that under the law as it presently exists, individuals as-
serting solely their interest as taxpayers have standing to
challenge only exercises of the taxing and spending
power, and not actions authorized by other constitutional
provisions. Inasmuch as litigants suing in the capacity of
taxpayers must show that the activity in question involves
substantial taxing and spending, it may well be that the
plaintiffs here lack taxpayer standing. We do question,
however, the assumption by the district court that the
only basis advanced by the plaintiffs in support of their
standing claim is, or must be, alleged injury to their inter-
est as taxpayers.
The heart of plaintiffs’ complaint is that the chal-
lenged governmental action caused “injury in fact” to
their shared individuated right to a government that “shall
make no law respecting the establishment of religion.”
Even the plaintiffs themselves would acknowledge that
their allegation of taxpayers status is essentially an as-
sumed role, set forth in response to uncertain pleading
requirements. Plaintiffs have no reason to expect, nor
perhaps do they care about, any personal tax saving that
might result should they prevail. The crux of the interest
at stake, the plaintiffs argue, is found in the Establish-
ment Clause, not in the supposed loss of money, as such.
As a matter of primary identity, the plaintiffs are not so
much taxpayers as separationists, and their main concern
Court of Appeals Opinion Al9
is not a reduction in taxes, but their declared goal of
separation of church and state.
As enunciated in Flast, the doctrine of taxpayer stand-
ing was not meant to qualify the general standing re-
quirement of a “personal stake in the outcome.” To the
contrary, Flast’s purpose was to outline a limited set of
circumstances in which an allegation of financial injury
in the form of increased tax liability by itself might be
considered an acceptable stake on which to predicate
standing, quite apart from eny allegation of individuated
injury to other judicially cognizable interests. Indeed,
the Flast court apparently found itself forced to premise
standing on the plaintiff's taxpayer interest, solely be-
cause it discerned no other allegation of injury that
could supply the requisite personal stake in the outcome.
The Court described its “point of reference” as well as its
“starting point for analysis,” to be “the standing of indi-
viduals who assert only the status of federal taxpayers.” ™
As viewed by the Court, the question presented was
“under what circumstances a federal taxpayer whose in-
terest stemmed solely from the taxes he paid to the Treas-
ury ‘[would] be deemed to have the personal stake and
interest that impart the necessary concrete adverseness to
such litigation so that standing can be conferred on the
taxpayer qua taxpayer consistent with the constitutional
limitations of Article III.’”* In no case outside the
51. 392 U. S. at 91, 102. Although the court apparently under-
stood the plaintiffs to be premising their standing solely on their
status as taxpayers—and decided the case on that basis—the plain-
tiffs in their brief to the Court did assert not only this “pocketbook
injury,” but also “an injury to the right to live under a government
which separates itself strictly from the church and church affairs.”
Brief for Appellant at 37.
52. United States v. Richardson, 418 U. S. 166, 205 (1974)
(Stewart, J., dissenting) (quoting in part Flast v. Cohen, 392 U. S.
83, 101 (1968) ).
A20 Court of Appeals Opinion
context of taxpayer suits, however, has the Supreme Court
demanded a subject matter nexus between the injury as-
serted and the constitutional claim sought to be adjudi-
cated. Indeed, in Schlesinger v. Reservists to Stop the
War the Court explicitly rejected such a broad compass
for the Flast nexus requirement. For the nexus criteria
developed in Flast for taxpayer standing, “were not in-
tended as a litmus test to resolve all conceivable standing
questions in the federal courts.”"* They were fashioned,
rather, “solely as a determinant of standing of plaintiffs
alleging only injury as taxpayers to challenge federal legis-
lation.” The Court recently affirmed this position in
Duke Power Co. v. Carolina Environmental Study Group,
by expressly stating that outside the context of taxpayers’
suits, a litigant must demonstrate nothing more than “in-
jury in fact and a substantial likelihood that the judicial
relief requested will prevent or redress the claimed injury
to satisfy the ‘case or controversy’ requirement.”
The enormous labor spent by the Court to extend
standing to the plaintiff in Flast through the precarious
opening of taxpayer standing is best understood as a -
function of the Court’s acknowledged “point of refer-
ence’—it found no allegation of injury except that
claimed by the litigants in their capacity as a federal tax-
payer. It was this perceived limitation in the pleadings
and nothing else, we believe, which constrained the Court
53. 418 U. S. 208, id. at 225 n. 15 (1974). This requirement,
the Court noted, “is not appropriate on a claim of citizen standing
since the Flast nexus test is not applicable where the taxing and
spending power is not challenged. . . .”
54. United States v. Richardson, 418 U. S. at 205.
55. Schlesinger v. Reservists to Stop the War, 418 U. S. 208,
238 (1974) (Brennan, J., dissenting).
56, 438 U. S. 59, 79 (1978) (footnote omitted).
Court of Appeals Opinion A21
in Flast from deciding that the plaintiffs’ interest in the
establishment issue, without reference to their taxpayer
status, would supply a stake sufficient to support standing.
The underlying justification for according standing in
Flast it seems, was the implicit recognition that the Estab-
lishment Clause does create in every citizen a personal
constitutional right, such that any citizen, including tax-
payers, may contest under that clause the constitutionality
of federal expenditures. As previously suggested, it is
because “each citizen has a personal stake in ensuring
that the Government not establish a religion,” that “a
citizen apparently does suffer a sufficiently personal injury
to confer standing when he is taxed to support a religious
institution.” *’
In contrast to the construction of the plaintiffs’ con-
tentions in Flast, the litigants here do allege injury in
fact to an interest other than the economic interest they
share as taxpayers. They claim that the challenged ac-
tion injures their important concern in the separation of
church and state and that this is within the zone of inter-
ests protected by the Establishment Clause of the First
Amendment. Thus, their appeal squarely presents the
novel and important question posed by Justice Fortas in
Flast, which the Court did not reach and thus did not
decide: whether “the vital interest of a citizen in the
establishment issue, without reference to his taxpayer's
57. Richardson v. United States, 465 F. 2d 844, 865 (3d Cir.
1972) (in banc) (Adams, J., dissenting), rev'd, 418 U. S. 166 (1974).
“[T]he establishment clause was surely intended to protect not
merely or even primarily taxpayers as such, but all citizens of the
new nation who believed in religious liberty and feared enforced
conformity to a state religion; it would therefore seem to follow
that any citizen should have standing in a case like Flast, since each
has a logical nexus between his status as citizen and the claim that
federal programs violate the first amendment.” Scott, supra note
14, at 662.
A22 Court of Appeals Opinion
status, would be acceptable as a basis for [standing to
bring] this [kind of] challenge.” *
The question of “the vital interest of a citizen in the
establishment issue” must be distinguished from the ques-
tion of “citizen standing” as such. The Supreme Court
has consistently admonished that a citizen who suffers
equally with all other citizens will not be heard to raise
generalized grievances about the conduct of the Govern-
ment.” In Reservists, for example, individuals suing as
citizens attempted to prevent certain members of Congress
from serving at the same time as officers of the Armed
Forces reserve.” They alleged that the incompatibility
clause of Article I, § 6 renders members of Congress “in-
eligible to hold a commission in the Armed Forces Reserve
during his [or her] continuance in office.” *' Holding that
the plaintiff lacked standing, the Court stated: “standing
to sue may not be predicated upon an interest of the kind
alleged here which is held in common by all members of
the public, because of the necessarily abstract nature of
the injury all citizens share. Concrete injury whether
actual or threatened, is that indispensable element of a
dispute which serves in part to cast it in a form tradi-
tionally capable of judicial resolution.” All citizens,
58. 392 U. S. at 115-16 (concurring opinion),
59. E.g., Schlesinger v. Reservists Comm. to Stop the War, 418
U. S. 208 (1974); United States v. Richardson, 418 U. S. 166 (1974).
60. 418 U. S. at 227-28. Standing in their capacity as tax-
payers was denied on the basis of Flast v. Cohen, 329 U. S. 83,
102-3 (1968).
61. 418 U. S. 208 (1974). The incompatibility clause states:
“no person holding any office under the United States shall be a
member of either House during his Continuance in Office.” U. S.
Const. art. I, § 6.
62. Id. at 209.
Court of Appeals Opinion A23
the Court noted, share equally an interest in constitutional
government. “In some fashion, every provision of the
Constitution was meant to serve the interests of all.” “
Yet, to recognize “[s]uch a generalized interest” as a suf-
ficient basis for citizen standing to enforce judicially all
constitutional provisions, “simply because citizens are the
ultimate beneficiaries,” the Court concluded, “has no
boundaries.” “
A similar question was raised in United States v.
Richardson.” There, a taxpayer and citizen sought to
challenge a statute that allowed the Central Intelligence
Agency to avoid publicly accounting for its receipts and
expenditures, in alleged violation of Article I, §9’s re-
quirement that “a regular Statement and Account of the
Receipts and Expenditures of all public Money shall be
published from time to time.” Although the Court con-
ceded that the plaintiff had a genuine interest in the use
of public funds, it found his claims “plainly undifferenti-
ated” and “common to all members of the public.” ”
Accordingly, because he had failed to demonstrate a
“personal stake in the outcome, . . . or a particular,
concrete injury . . . in short, something more than ‘gen-
eralized grievances, ”“ the plaintiff was denied standing.
Ideological plaintiffs, with simply “a mere ‘interest in a
problem’ ”,** will not be permitted to assert the public
interest in a constitutional claim.
63. Id. at 226-27.
64. Id. at 227.
65. 418 U. S. 166 (1974).
66. Id. at 177 (quoting Ex parte Levitt, 302 U. S. 633, 634
(1937) (per curiam) ).
67. Id. at 106.
68. Sierra Club v. Morton, 405 U. S. 727, 739 (1972).
A24 Court of Appeals Opinion
The decisions in Reservists and Richardson appear
to be based on the inadequate nature of the plaintiff's al-
leged injury in fact. In both cases, the Court sought to
distinguish the “abstract injury in nonobservance of the
Constitution asserted by respondents as citizens” from
what it described as “direct” or “concrete” injury. As
applied by the Court, however, the “injury in fact” re-
quirement was not independent from the related inquiry
regarding the interest sought to be protected. Thus, in
Schlesinger, the Court noted that, unlike allegations as-
serting violation of “some limitation of the Constitution,”
in which case “it can only be a matter of speculation
whether the claimed violation has caused concrete injury
to the particular complainant,” an allegation of “con-
crete injury” to “fundamental . . . rights” may supply “a
personal stake . . . sufficient to support standing.” In
similar fashion, the Court in Richardson found it “open
to serious question whether the Framers of the Constitu-
tion ever imagined that general directives to the Con-
gress or the Executive would be subject to enforcement
by an individual citizen.” It would appear, therefore,
that the Court's consistent refusal to grant “citizen stand-
ing” to ideological plaintiffs seeking to litigate the public
interest has turned as much on the inadequacy of the
alleged interest sought to be protected as it has on the
deficiency of the injury alleged.”
69. Schlesinger v. Reservists Comm. to Stop the War, 418 U. S.
at 223 n. 15.
70. Id.
71. 418 U. S. at 178 n. 11.
72. In a recent article, Professor Tushnet has argued that a
preference by the Supreme Court for “better” plaintiffs stands as an
implied limitation upon the conferral of standing. See supra note
8, at 690-93. In both Reservists and Richardson, the Supreme
Court recognized a similar argument “that if respondents could not
Court of Appeals Opinion A25
The Supreme Court has often recognized that an al-
legation of “particular concrete injury” to a plaintiffs
fundamental rights, as distinguished from the “abstract
injury” in nonobservance of the Constitution asserted by
litigants as citizens, can supply a personal stake in the
outcome sufficient to support standing.” Thus, in Baker
v. Carr," an asserted injury to the plaintiff's fundamental
right to vote was deemed a sufficient personal stake to
72. (Cont'd. )
obtain judicial review of petitioner's action, ‘then as a practical
matter no one [could]’”; but in each case the Court emphasized
that the lack of a better plaintiff was “irrelevant” to the question of
standing. “The assumption that if respondents have no standing to
sue, no one would have standing,” the Court stressed, “is not a
reason to find standing.” Schlesinger v. Reservists to Stop the War,
418 U. S. at 227; see United States v. Richardson, 418 U. S. at 179.
Much as the lack of a better plaintiff is insufficient by itself to
confer standing on a litigant, the possible availability of a better
plaintiff would also appear irrelevant to the question of an individ-
ual litigant’s standing to maintain a particular claim. Whenever a
party's standing is challenged the question for decision is simply
whether that litigant “has a sufficient stake in an otherwise justi-
ficable controversy to obtain judicial resolution of that controversy.”
Sierra Club v. Morton, 405 U. S. at 731. In the present appeal, for
instance, it might well be argued that Americans United is not as
“good” a plaintiff as would be a nonsectarian educational institution
that had actually applied for the award of government property in
question, but lost out to the Valley Forge Christian College. Yet
the fact that such an organization might make a “better plaintiff”
cannot justify a denial of standing to plaintiffs here inasmuch as
they in fact allege injury in fact to an individuated right protected
by the Constitution.
73. Abington School Dist. v. Schempp, 374 U. S. 203 (1963);
Baker v. Carr, 369 U. S. 186 (1962); see Schlesinger v. Reservists
Comm. to Stop the War, 418 U. S. 208, 223 n. 13 (1974); United
States v. SCRAP, 412 U. S. 669, 689 n. 14 (1973).
74, 369 U. S. 186 (1962).
A26 Court of Appeals Opinion
support standing. And in Schempp,” the Court sum-
marily affirmed the plaintiffs’ standing to raise substantive
challenges on the basis of the Establishment Clause. In
so doing, the Court noted in particular that “the require-
ments for standing to challenge state action under the
Establishment Clause, unlike those relating to the Free
Exercise Clause, do not include proof that particular re-
ligious ‘freedoms are infringed.” "* Moreover, in Data
Processing the Supreme Court expressly instructed that
“a spiritual stake in First Amendment values [is] suf-
ficient to give standing to raise issues concerning the
Establishment Clause.” This is not to suggest, however,
that a litigant claiming only that a contested action
deprives someone else, or the public generally, of a con-
stitutional right has alleged a personal stake in a contro-
versy sufficient to confer standing. Indeed, the require-
ment of an allegation by plaintiffs that they have suffered
injury in fact “embodies a refusal by Article III courts
to resolve disputes involving only generalized grievances,
or only the rights or interests of third parties.” “
75. 374 U. S. 203 (1963).
76. Id. at 224 n. 9.
77. 397 U. S. at 154.
78. L. Tribe, supra note 36, § 3-19 at 82. See Note, “Standing
to Assert Constitutional Jus Tertii, 88 Harv. L. Rev. 423, 428-30
(1974).
In the case of overbreadth challenges under the free speech
clause of the First Amendment, the Supreme Court has ex-
tended the concept of standing to allow individuals whose con-
duct may be regulated or proscribed by a statute to assert that
the statute is unconstitutionally overbroad with respect to third
parties not before the court. Broadrick v. Oklahoma, 413 U. S.
601 (1973). Moreover, the Court has granted standing in such
cases not only to one who has been charged with a violation of
the statute but also to one merely threatened with such prose-
Court of Appeals Opinion A27
The litigants in the present appeal, however, are de-
cidedly not ideological plaintiffs, lacking any personal
stake in the controversy yet intent on adjudicating their
own generalized views concerning the legality of the
challenged action. On the contrary, plaintiffs hers ad-
vance neither an abstract nor a generalized complaint
but set forth instead a particular and concrete injury to a
right that is allegedly protected by the constitutional
guarantee raised. Nor do the plaintiffs rest their com-
plaint on the claim that the disputed action deprives
someone else, or the public generally, of a legal right.
Their claim, rather, is that the challenged transfer of
government property to a religious institution seriously
injures their individual and personal constitutional right
of religious liberty and separation of church and state.
Unlike the general limitations at issue in Reservists and
Richardson, certain other constitutional provisions, such
as the First Amendment, create legal rights in individuals.
Yet, unless individuals claiming an encroachment of their
legal rights have some recourse other than the political
process for the vindication and protection of those rights,
the proud claim that individual citizens have rights against
the government may be emptied of significance. As the
Supreme Court has stated: “The very purpose of a Bill of
Rights was to withdraw certain subjects from the vicis-
situdes of political controversy, to place them beyond the
78. (Cont'd. )
cution. Dombrowski v. Pfister, 380 U. S. 479 (1965). Even
under this liberalized approach, however, the litigant seeking
to challenge the allegedly overbroad statute must be either
specifically charged or threatened with prosecution under that
statute. A plaintiff not so charged or threatened but who
nonetheless challenges such a statute lacks the personal stake
in the outcome of the controversy for the conferral of standing.
See Laird v. Tatum, 408 U. S. 1 (1972).
A28 Cuurt of Appeals Opinion
reach of majorities and to establish them as legal principles
to be applied by the courts.” ”
The claim that individual citizens are entitled to judi-
cial enforcement of their rights does not, of course, tell
us exactly what Constitutional rights individuals have
against the government. But plaintiffs need not establish
that they actually have a legal right under the Establish-
ment Clause to be free from the kind of governmental
conduct in question. An allegation of injury in fact to an
interest protected by the Establishment Clause is all that
is required for standing. Only if the court determines,
after consideration of the merits, that the governmental
action is barred by the Establishment Clause, will it
thereby recognize legal rights in the plaintiffs. It is cer-
tainly not irrelevant to the prior determination, however,
that the very first words of the Bill of Rights declare that:
“Congress shall make no law respecting an establishment
of religion or prohibiting the free exercise thereof.” The
two clauses do not represent separate and distinct con-
ceptions, but a unified one; together they serve the broad
common purpose of religious liberty. As a means to that
end, we believe it is at the very least arguable that the
79. West Virginia State Bd. of Educ. v. Barnette, 319 U. S. 624,
638 (1943). In particular, the Court indicated that: “One's right to
speech, a free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to vote; they depend on
the outcome of no elections.” Id
80. U. C. Const. amend. I.
As one constitutional scholar has argued: “It is no historical ac-
cident that the two religion-related guarantees of the Bill of
Rights are stated as the very first provisions of that historic
document. . . . the draftsmen of the Bill of Rights, working
in the perspective of a history known to them all, put first
things first.” Jones, Church-State Relations: Our Constitutional
Heritage, in Religion and Contemporary Society 156, 163 (H.
Stahmer ed. 1963).
Court of Appeals Opinion A29
Establishment Clause creates in each citizen a “personal
constitutional right” to a government that does not estab-
lish religion.“' The essence of the argument, as Justice
Harlan recognized, is “that freedom from establishment is
a right that inheres in every citizen, thus any citizen
should be permitted to challenge any measure that con-
ceivably involves establishment.” “ As a cornerstone of
our government, it may well be that the Establishment
Clause should be enforceable at the demand of every in-
dividual who claims injury to an interest protected thereby.
Justice Brennan, for one, has expressly rejected the sug-
gestion that the Establishment Clause “is not one of the
provisions of the Bill of Rights which in terms protects a
‘freedom’ of the individual. . . . The fallacy in this con-
tention,” he wrote, “is that it underestimates the role of
the Establishment Clause, as a co-guarantor, with the Free
Exercise Clause, of religious liberty.” ™
TV. CoNncLusION
One of the central purposes of judicial review is to
restrain overreaching majorities from violating the rights
81. See Flast v. Cohen, 392 U. S. at 114 (Stewart, J., concur-
ring ).
82. Id. at 129 n. 18 (Harlan, J., dissenting). Justice Harlan’s
major difficulty with the argument was that it might be extewded
to certain other provisions of the constitution—e.g., the Ninth and
Tenth Amendments. “{A]ny doctrine of standing premised upon
the generality or relative importance of a constitutional command
would, [he thought], very substantially increase the number of situ-
ations in which individualized citizens could present for adjudica-
tion ‘generalized grievances’ about the conduct of government.”
He conceded that these Amendments, however, may be merely
“tub[s] for the whale.” And he praised such a doctrine of standing
for “at least be[ing] internally consistent.” Id.
83. Abington School Dist. v. Schempp, 374 U. S. 203, 256
(1963) (Brennan, J., concurring ).
A30 Court of Appeals Opinion
of individuals that the Constitution was designed to
protect. Yet, under the defendants’ view, Congress could
transfer to a particular religious organization such
naticnal facilities as the Naval Observatory or the Army
War College, secure in the knowledge that any individual
citizen attempting to challenge such action as an abridge-
ment of his or her rights under the Establishment Clause
would not even be granted standing to make the claim.
As Chief Justice Marshall wrote long ago in Marbury v.
Madison, “[t]he very essence of civil liberty certainly con-
sists in the right of every individual to claim the protection
of the laws, whenever he receives an injury.” “* The con-
stitutional “injury in fact” complained of by the plaintiffs
here gives them a sufficient “personal stake in the out-
come” to assure a complete perspective of the issues in-
volved. And we are convinced that the interest which
the plaintiffs assert and seek to safeguard here is within
the zone of interests protected by the Establishment
Clause.
Accordingly, the judgment of the district court dis-
missing the complaint for lack of standing will be reversed,
and the case remanded for proceedings consistent with
this opinion.
RosEnn, Circuit Judge, Concurring.
I agree with Judge Adams’ analysis that Americans
United for Separation of Church and State, Inc., (Ameri-
cans United) has standing under the Establishment Clause
to challenge the transfer of surplus government property
to a religious organization. I write separately, however,
because I believe there is an additional reason which
requires that we find standing. Simply stated, I believe
that the plaintiffs have standing because they possess the
84. 5 U. S. 87, 102, 1 Cranch 137, 161 (1803).
Court of Appeals Opinion A31
necessary adversity of interest and, as a practical matter,
no one is better suited to bring this lawsuit and thus
vindicate the freedoms embodied in the Establishment
Clause.
The Establishment Clause, and the first amendment
of which it is a part, operates to protect the rights of po-
litical minorities against abuses by political majorities.
See J. Madison, Memorial and Remonstrance against Re-
ligious Assessments. Thus, the first amendment, with its
protections of fundamental rights, must be enforceable by
the judicial branch of government, for it is by its very
nature and terms designed to protect against possible
abuse by the political branch. See West Virginia State
Board of Education v. Barnette, 319 U. S. 624, 638 (1943).
The first amendment is different from some provisions
of the Constitution which do not depend primarily upon
judicial enforcement for their efficacy and where alleged
violations thereof thus do not give rise to a judicially
cognizable controversy. © 2 Schlesinger v. Reservists
Committee to Stop the War, 418 U. S. 208 (1974); United
States v. Richardson, 418 U. S. 166 (1974).’
The first amendment, however, is unlike the constitu-
tional provisions at issue in Richardson and Schlesinger.
1. In Richardson the Supreme Court held that the plaintiff
lacked standing to bring an action seeking to enforce the provisions
of Article I, § 9, cl. 7 of the Constitution. The Court stated: “It is
therefore open to serious question whether the Framers of the Con-
stitution ever imagined that general directions to the Congress or
the Executive would be subject to enforcement by an individual
citizen.” 418 U. S. at 178 n. 11. Furthermore, the Court noted
that even if a judicial remedy were unavailable, the plaintiff mighi
still obtain relief at the polls, through the operation of the electoral
process. Id. at 179. Similarly, the Court observed in Schlesinger
that “[t]he assumption that if respondents have no standing to sue,
no one would have standing, is not a reason to find standing.” 418
U, S. at 227.
A32 Court of Appeals Opinion
There is no doubt that it is “subject to enforcement by an
individual citizen.” See United States v. Richardson,
supra, 418 U. S. at 178 n. 11. Furthermore, because the
first amendment is designed to protect against abuses by
political majorities, it need not, and indeed must not, de-
pend upon the political process for vindication and pro-
tection.
The fundamental nature of first amendment interests
and their nonmajoritarian nature is reflected in the lib-
eralized standing rules that have been applied to over-
breadth challenges under the Free Speech Clause. Within
certain constraints, one whose conduct may be permissibly
regulated or proscribed may, nevertheless, assert that the
statute is unconstitutionally overbroad with respect to
third parties not before the court. See Broadrick v. Okla-
homa, 413 U. S. 601 (1973). If standing were not al-
lowed in such cases, important rights of free speech would
be rendered unenforceable. The existence of an over-
broad statute may deter parties not before the court from
engaging in constitutionally protected conduct. That
very deterrence or chilling effect might well prevent a ju-
dicially cognizable controversy from arising, thus effec-
tively shielding the statute from review. The more effec-
tively a statute deterred protected activity, the more likely
it would be to escape judicial review. The Free Speech
Clause would thereby be severely weakened.
The scope of the liberalized standing rules in the free
speech area is, I suggest, governed in part by the Court's
realization of the need for an available plaintiff. When
an individual has himself been charged with a violation
of a statute, the Court is willing to allow him to challenge
it, even though his conduct is permissibly regulable, be-
cause of the Court’s concern that it will not otherwise have
an opportunity to examine the challenged statute. See
Broadrick v. Oklahoma, supra, 413 U. S. at 612. The indi-
Court of Appeals Opinion A33
vidual charged under the statute has an obvious interest
in demonstrating its validity. This assures the requisite
adversity necessary for judical decisionmaking.
Statutes alleged to violate the Free Speech or Free
Exercise Clauses are likely to have a perceptible impact
or focus upon individual conduct. Thus, even though all
citizens may be said to have a generalized interest in free
speech or free exercise values, that is insufficient to confer
standing. There is normally an available class of likely
plaintiffs better situated to challenge the offending statute.
Similarly, statutes allegedly violative of the Establishment
Clause may also be directed at the regulation of individual
conduct. In Abington School District v. Schempp, 374
U. S. 205 (1963), for example, a state statute required
the reading of Bible passages to public school students.
There, students and their parents brought suit, challenging
the statute under the Establishment Clause. The Court
found that the children and their parents were directly
affected by the statute and thus had standing to complain.
374 U. S. at 224 n. 9.
Unlike statutes allegedly violative of the Free Exer-
cise and Free Speech Clauses statutes alleged to violate
the Establishment Clause may not have an individual
impact sufficient to confer standing in the traditional sense.
Rather, such statutes may have the more general effect
or purpose of aiding religion. In such circumstances,
there is not an available class of likely plaintiffs whose
conduct has been or will be circumscribed by the existence
of the offending statute and who will thus have standing
to seek judicial review. In Flast v. Cohen, 392 U. S. 83
(1968), however, the Supreme Court largely filled this
gap by granting taxpayer standing to those challenging
actions under the taxing and spending clause of the Con-
stitution which are alleged to violate the Establishment
Clause.
A34 Court of Appeals Opinion
In the case before us, we are presented with a statute
that does not arise under the taxing and spending power.
Thus, I agree that there is not taxpayer standing. Further-
more, the statute at issue here is not directed at the
regulation of individual conduct. Although it is possible
to conceive of economic interets that might give rise to
a plaintiff who meets traditional standing requirements,
that will be relatively rare and is certainly not the case
here.*? Americans United is likely to be the best available
plaintiff. If they do not have standing, it is probable
that the transfer of property at issue here, and other simi-
lar transfers (of which there are apparently a substantial
number, maj. op. at A2) would be placed beyond judicial
review. In respect to such actions, the Establishment
Clause would be rendered virtually unenforceable.
It is apparent that Americans United and those four
of its directors named as individual plaintiffs, possess the
requisite adversity of interest necessary to insure legiti-
mate and effective judicial decisionmaking. Americans
United is a non-profit organization some 90,000 strong
with a historic and documented commitment to vindica-
tion of Establishment Clause interests. As stated by its
Articles of Incorporation, Americans United’s purpose is
2. Judge Adams observes that:
In the present appeal, for instance, it might well be argued
that Americans United is not as “good” a plaintiff as would be
a nonsectarian educational institution that had actually applied
for the award of government property in question, but lost out
to the Valley Forge Christian College. Yet the fact that such
an organization might make a “better plaintiff’ cannot justify a
denial of standing to Americans United. . . .
Maj. op. at A25. I agree. I would however further observe
that the record contains no indication that there was any applicant
other than the appellee competing for the transfer of the property.
Nor do I believe that there ordinarily will be such a “better”
plaintiff.
Court of Appeals Opinion A35
“to defend, maintain and promote religious liberty and
the constitutional principle of the separation of church
and state.” Organizational purpose is, by itself, normally
an insufficient basis on which to rest standing. See Sierra
Club v. Morton, 405 U. S. 727, 739 (1972). Nevertheless,
in the context of the case before us, and the need to pro-
vide a judicial forum for the vindication of Establishment
Clause interests, I believe that it provides an additional
indication that Americans United and the individual plain-
tiffs meet applicable standing requirements. Accordingly,
I join Judge Adams in reversing the judgment of the
district court.
Wels, Circuit Judge, dissenting.
The majority concedes, and I agree, that the plaintiffs
do not have taxpayer standing. I also agree that the rules
of standing are at best far from clear. Nevertheless, it
seems to me that the grant of standing to the plaintiffs
runs contra to the Supreme Court’s pronouncements in
this complex area of the law.
Although the Court has expanded the categories of
assertible injuries to include such matters as aesthetic and
environmental well-being, United States v. Students Chal-
lenging Regulatory Agency Proceedings (SCRAP), 412
U. S. 669, 686-87 (1973), it has not abandoned its insist-
ence upon the presence of “injury in fact,” Duke Power
Co. v. Carolina Environmental Study Group, Inc., 438
U. S. 59, 72-74 (1978). This factor has been said to be
based on the necessity that the plaintiff have “such a per-
sonal 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 . . . questions.” Baker v. Carr,
369 U. S. 186, 204 (1962). It has also been held at various
times that injury in fact is a necessary predicate to the
A36 Court of Appeals Opinion
Article III requirement of case or controversy. Both
reasons have been subjected to critical commentary.’
Analysis of the raison d'etre of the injury in fact pre-
requisite may be interesting, but it does not provide much
enlightenment in resolving standing questions. No general
definition of injury in fact has been particularly conclusive,
with such descriptions as “specific,” “concrete,” and “per-
sonal” having found their way into opinions. The cases
depend to a very large extent upon their factual back-
grounds, furnishing but little effective guidance for future
determinations.
Out of the morass that is the American law of stand-
ing, however, several principles emerge. First, a general-
ized grievance brought by concerned citizens seeking to
enforce a particular constitutional guarantee has been
deemed too abstract to satisfy the injury in fact com-
ponent of standing. Schlesinger v. Reservists Committee
to Stop the War, 418 U. S. 208 (1974); United States v.
Richardson, 418 U. S. 166 (1974). Second, a taxpayer’s
standing to promote constitutional governance has been
confined to situations where a specific limitation on the
congressional taxing and spending power has been alleged.
This narrow opening to standing was expounded in Flast
v. Cohen, 392 U. S. 83 (1968), where a taxpayer was
granted standing to challenge an expenditure of federal
funds for sectarian schools on the premise that the estab-
lishment clause is a limitation on Congress’s power over
the fisc. But in United States v. Richardson, supra, the
Court rejected an attempt to expand taxpayer standing
1. See, e.g., Bogen, Standing Up For Flast: Taxpayer and
Citizen Standing to Raise Constitutional Issues, 67 Ky. L. J. 147
(1978); Davis, Standing: Taxpayers and Others, 35 U. Cu. L. Rev.
601 (1968). See also United States Parole Commission v. Geraghty,
— U.S. —, —, 48 U. S. L. W. 4296, 4302 (U. S. March 19, 1980)
(Powell, J., dissenting ).
Court of Appeals Opinion A37
to reach disputes over issues other than the taxing and
spending power because of a lack of any causal connec-
tion between plaintiff's status and the asserted injurious
conduct.
In the case at bench, the majority essentially finds a
different kind of “citizen standing” derived from “a shared
individuated right to a government that ‘shall make no
law respecting the establishment of religion.” Manu-
script at 17. Although there is respected scholarly com-
mentary approving that approach, it does not find support
in the United States Reports.
In Flast v. Cohen, supra, Justice Fortas, in a con-
currence, floated the idea that “[p]erhaps the vital interest
of a citizen in the establishment issue, without reference
to his taxpayer's status, would be acceptable as a basis
for this challenge.” 392 U. S. at 115-16. It is obvious
that there were not enough votes approving this concept,
for otherwise the majority would not have found it nec-
essary to construct the complicated and detailed formula
it used to bypass the venerable prohibition against tax-
payer standing. Certainly, the opinion would have been
simpler had a majority of the Court approved the Fortas
concept.
It does not suffice to say that the Flast Court was
limited by the plaintiffs’ pleadings to a consideration only
of the taxpayer issue. In the three-judge district court,
Judge Frankel, in dissent, urged that the plaintiffs be
given standing, not because they alleged that their tax
dollars were being distributed unconstitutionally, but
because they were asserting violations of the establishment
clause—the same argument made by the majority here.
See Flast v. Gardner, 271 F. Supp. 1, 11-13 (S. D. N. Y.
1967). In their brief filed with the Supreme Court, more-
over, the Flast plaintiffs disclaimed that their principal
motive was to keep taxes down. They sued, in their
words,
A38
Court of Appeals Opinion
“to prevent a pocketbook injury but only because
that is part of what they deem a much graver injury,
an injury to the right to live under a government
which separates itself strictly from the church and
church affairs.”
Brief for Appellant at 37.
The briefs of several amici reflect the same approach:
“[T]he rights advanced here are not primarily mone-
tary in nature. . . . [T]he dominant inducement for
this action is the protection of individual and social
freedom. .. .”
Brief for National Council of Churches at 9.
“Thus, as Judge Frankel suggested, an economic
analysis of the plaintiff's interest is inappropriate in
a case of this kind. Ibid. The proper analysis must
comprehend the nature of the rights confirmed by the
Establishment Clause, and the identity of the party
upon whom these rights are conferred. . . . [T]he
plaintiffs in this case, as citizens, contend that the
Elementary and Secondary Education Act infringes
the rights conferred upon them by the First Amend-
ment. Their status as injured citizens, and nothing
else, gives them the requisite interest to maintain
their suit.”
Brief for Americans for Public Schools at 8. It cannot be
said,
therefore, that the Supreme Court was not strongly
urged to adopt the theory that the majority here now
advances.
If as the majority suggests, however, the Flast Court
felt itself bound by the pleadings, then that same limita-
tion
must necessarily apply to us as well. The amended
complaint, upon which the district court reached its deci-
Court of Appeals Opinion A39
sion, identifies the plaintiffs as “taxpayers.” The corporate
plaintiff is described as an organization of taxpayers, and
each individual is listed as a taxpayer who “would be de-
prived of the fair and constitutional use of his (her) tax
dollar for constitutional purposes in violation of his (her)
rights under the First Amendment...” (App. 9.)
The Flast complaint also identified the plaintiffs as
taxpayers and protested the use of federal funds to finance
instruction in sectarian schools. Thus, there is no sub-
stantial difference between the two complaints, certainly
none that would permit consideration of citizen standing
in one case and not in the other.
The plaintiffs do not allege any direct injury that the
transfer of the property has inflicted upon them or any
direct benefit that will accrue to them as a result of the
requested judicial action. Their freedom of religion is not
alleged to be affected in any respect. Rather, the com-
plaint alleges that the granting of the property is a viola-
tion of the establishment clause and asks that the con-
veyance be declared void or that the college be required
to return the property to the government. Neither of
these actions would directly affect any of the plaintiffs.
The lack of cognizable injury to the plaintiffs places
them in the same posture as those in Schlesinger v. Re-
servists Committee to Stop the War, supra. There, the
Court reiterated the requirement that the party seeking
review must himself have suffered an injury and said:
“Abstract injury is not enough.” Id. at 219, quoting
O’Shea v. Littleton, 414 U. S. 488, 494 (1974). That hold-
ing was made in the face of a complaint that sought to
force members of Congress to act in conformity with the
incompatibility clause—“an interest shared by all citizens.”
Id. at 217. “[T]hat claimed nonobservance, standing
alone, would adversely affect only the generalized interest
A40 Court of Appeals Opinion
of all citizens in constitutional governance, and that is
an abstract injury.” Id. (footnote omitted).
Similarly, in United States v. Richardson, supra, the
Court repeated the necessity for the plaintiffs’ allegations
of “particular concrete injury as a result of the operation
of this statute,” id. at 177, the statute in question being
one authorizing private accounting by the Central Intel-
ligence Agency. In that case the Court took pains to
dispel the notion that standing should be conferred
simply because if the plaintiff could not litigate the issue,
no one could. Id. at 179. As the Richardson majority ob-
served, such a situation supports the argument that the
issue is one “committed to the surveillance of Congress,
and ultimately to the political process.” Id.
I, for one, am unwilling to believe that Congress, re-
sponsive as it is to public opinion, is likely to give away
either the Naval Observatory or the Army War College.’
To my mind, the Schlesinger and Richardson observations
apply just as clearly to the generalized complaints of the
plaintiffs here. Accordingly, I can find no principled
basis for distinguishing the cases.
In light of this authority, I do not find persuasive the
argument that the establishment clause creates a right
capable of being enforced by all citizens. As Justice Har-
lan indicated in his Flast dissent, premising standing on
a hierarchical view of constitutional commands would
increase, without any logical basis, “the number of situa-
tions in which individual citizens could present for ad-
judication ‘generalized grievances about the conduct of
2. The Valley Forge hospital was originally constructed in
1942 to treat wounded servicemen during World War II. As one
real estate appraiser wrote, “[T]hese buildings were constructed
several years ago for one purpose only, that is for an army hospital,
and it is my feeling that they have little or no use, generally speak-
ing, for other purposes.” (App. 242.)
Court of Appeals Opinion A4l
government.” 392 U. S. at 129-30 n. 18, quoting id. at
106 (majority opinion). Nor do other cases relied on by
the majority support its position. Both Abington School
District v. Schempp, 374 U. S. 203 (1963), and Baker v.
Carr, supra, are readily distinguished because the plain-
tiffs there suffered particularized injuries. In Schempp,
the parents and their children were directly affected by
the presence of classroom prayer. And in Baker, the harm
alleged was the devaluation of plaintiffs’ individual votes.
See L. Tree, AMERICAN ConsTITUTIONAL Law § 3.19, at
86-87 (1978).
The majority has embraced a concept of standing
presented to the Court in 1968 and not accepted by it at
that time, or since. If the basic principles of standing
prove to be unworkable or undesirable, then it is the Su-
preme Court and not a court of appeals that has the right
to change them. See Hicks v. Miranda, 422 U. S. 332,
343-45 (1975). I find no indication in Reservists and
Richardson that the Court has gone beyond what Flast
contained, and I would therefore affirm the district court.
A42 District Court Order
Order of the United States District Court for the Eastern
District of Pennsylvania, Americans United For Sepa-
ration of Church and State, Inc., Andrew Leigh Gunn,
Edward E. Doerr, Gioele Settembrini, and E. Mallary
Bins, Plaintiffs v. The United States Department of
Health, Education and Welfare, The United States of
America, and Valley Forge Christian College, De-
fendants, Civil Action No. 77-1321, Filed December
15, 1978.
IN THE
UNITED STATES DISTRICT COURT
For THE EASTERN District OF PENNSYLVANIA
Civi. Action No. 77-1321
AMERICANS UNITED FOR SEPARATION OF
CHURCH AND STATE, INC. ANDREW LEIGH
GUNN, EDWARD E. DOERR, GIOELE SETTEM-
BRINI, AND E. MALLARY BINNS,
Plaintiffs
v.
THE UNITED STATES DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE THE UNITED
STATES OF AMERICA, AND VALLEY FORGE
CHRISTIAN COLLEGE,
Defendants
ORDER
Anp Now, this 15th day of December, 1978, after
consideration of the arguments and briefs of counsel, the
District Court Order A43
motions of defendant Department of Health, Education
and Welfare to dismiss the complaint and of defendant
Valley Forge Christian College for summary judgment
are granted for the reason that plaintiffs lack standing to
maintain this action.
1. The only basis advanced by the individual plain-
tiffs in support of their claim to standing is their status as
taxpayers; the only basis advanced by the organizational
plaintiff in support of its claim to standing is the status of
its members as taxpayers;
2. It is well established that in order to achieve tax-
payer standing, plaintiffs’ cause of action must be a chal-
lenge to a Congressional exercise of the taxing and spend-
ing power, U. S. Const. Art. I, §8. Flast v. Cohen, 392
U. S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968).
3. Plaintiffs challenge is to a transfer of property
pursuant to the Federal Property and Administrative Serv-
ices Act of 1949, 40 U. S. C. § 471 et seq.
4. A transfer of property pursuant to the Federal
Property and Administrative Services Act is an exercise of
Congressional property power, U. S. Const., Art. IV, § 3,
cl. 2; see United States v. Cassiagnol, 420 F. 2d 868, 876
(4th Cir.), cert. denied, 397 U. S. 1044, 90 S. Ct. 1364
(1970); Kern Copters, Inc. v. Allied Helicopter Service,
Inc., 277 F. 2d 308, 313 (9th Cir. 1960).
5. Since plaintiffs do not challenge an exercise of
Congressional taxing and spending power, they lack stand-
ing to maintain this action; Flast v. Cohen, supra; Mease
v. Heinz, No. 78-1106 (E. D. Pa. Oct. , 1978).
6. Plaintiffs have also failed to allege that they have
suffered any actual or concrete injwry beyond a general-
ized grievance common to e!’ taxpayers; for this reason
A44 District Court Order
also, plaintiffs lack standing to bring this action; see
Schlesinger v. Reservists Committee to Stop the War, 418
U. S. 208, 94 S. Ct. 2925, 41 L. Ed. 2d 706 (1975); Mease
v. Heinz, supra.
By THE COURT:
J. Witt1aM Dirter, Jr.,
J.
12/15/78
Copy TO:
J. T. Action, Esq.
R. S. Forster, Esq. (Asst. U. S. Atty.)
Ball & Skelly
C. C. Hodgson, Esq.
Court of Appeals Judgment A45
Judgment of the United States Court of Appeals for the
Third Circuit, Americans United for Separation of
Church and State, Inc., Gunn, Andrew, Leight, Doerr,
Edward D., Settembrini, Gioele, Binns, E. Mallary,
Appellants v. The United States Department of
Health, Education and Welfare, The United States of
America, Northeast Bible College, a/k/a Valley Forge
Christian College, No. 79-1221, Dated April 8, 1980.
UNITED STATES COURT OF APPEALS
For THE Tuirp Circuit
No. 79-1221
AMERICANS UNITED FOR SEPARATION OF
CHURCH AND STATE, INC., GUNN, ANDREW,
LEIGH, DOERR, EDWARD D., SETTEMBRINI,
GIOELE, BINNS, E. MALLARY,
Appellants
v.
THE UNITED STATES DEPARTMENT OF HEALTH,
EDUCATION and WELFARE, THE UNITED
STATES OF AMERICA, NORTHEAST BIBLE
COLLEGE, A/K/A VALLEY FORGE CHRISTIAN
COLLEGE
(D. C. Civil Action No. 77-1321)
On ApPeEAL From THE UNITED States District Covat
For THE EASTERN District OF PENNSYLVANIA
A46 Court of Appeals Judgment
Present: ApAmMs, RosENN and Weis, Circuit Judges
JUDGMENT
This cause came on to be heard on the record from
the United States District Court for the Eastern District
of Pennsylvania and was argued by counsel on October 12,
1979 and reassigned February 7, 1980.
On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said
District Court, filed December 15, 1978, be, and the same
is hereby reversed and the cause remanded for further
proceedings consistent with the opinion of this Court.
Costs taxed against appellees.
ATTEST:
/s/ THomas F. Quinn
Clerk
April 8, 1980
Court of Appeals Order Denying Rehearing A47
Order Denying Petition for Rehearing En Banc of the
United States Court of Appeals for the Third Circuit,
Americans United for Separation of Church and State,
Inc., et al, Appellants v. The United States Depart-
ment of Health, Education and Welfare, et al. No.
79-1221, Dated June 3, 1980.
UNITED STATES COURT OF APPEALS
For THE Tuirp Circuit
No. 79-1221
AMERICANS UNITED FOR SEPARATION OF
CHURCH AND STATE, INC., et al,
Appellants
v.
THE UNITED STATES DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE, et al.
SUR PETITION FOR REHEARING
EN BANC
Present: Seitz, Chief Judge, Aupisent, ADAMS, GIBBONS,
RosENN, Hunter, Weis, GARTH, HIGGINBOTHAM and
SLovitER, Circuit Judges.
The petition for rehearing filed by Appellee, Valley
Forge Christian College, in the above entitled case having
been submitted to the judges who participated in the de-
cision of this court and to all the other available circuit
A48 Court of Appeals Order Denying Rehearing
judges of the circuit in regular active service, and no judge
who concurred in the decision having asked for rehearing,
and a majority of the circuit judges of the circuit in regu-
lar active service not having voted for rehearing by the
court in banc, the petition for rehearing is denied.
By THE COURT,
/s/ Artin M. Apams,
Circuit Judge
Dated: June 3, 1980
Constitutional and Statutory Provisions A49
United States Constitution, Relevant Articles and Amend-
ments.
ARTICLE I, Section 8, CLAUsE 1
The Congress shall have Power
To lay and collect Taxes, Duties, Imposts and Excises,
to pay the Debts and provide for the common Defence
and general Welfare of the United States; but all Duties,
Imposts and Excises shall be uniform throughout the
United States; .. .
ARTICLE III, Section 2, CLause 1
The judicial Power shall extend to all Cases, in Law
and Equity, arising under this Constitution, the Laws of
the United States, and Treaties made, or which shall be
made, under their Authority;—to all Cases affecting Am-
bassadors, other public Ministers and Consuls;—to all
Cases of admiralty and maritime Jurisdiction;—to Con-
troversies to which the United States shall be a Party;—
to Controversies between two or more States;—between a
State and Citizens of another State; between Citizens of
different States;—between Citizens of the same State
claiming Lands under Grants of different States, and be-
tween a State, or the Citizens thereof, and foreign States,
Citizens or Subjects. . . .
ARTICLE IV, Section 3, CLAUSE 2
The Congress shall have Power to dispose of and
make all needful Rules and Regulations respecting the
Territory or other Property belonging to the United States;
and nothing in this Constitution shall be so construed as
to Prejudice any Claims of the United States, or of any
particular State.
A50 Constitutional and Statutory Provisions
AMENDMENT 1
Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.
Federal Property and Administrative Services Act of 1949,
40 U. S. C. § 471 et seq. (1970), Relevant Provisions.
40 U. S. C. § 484. Disposal of surplus property—Super-
vision and direction
(a) Excert as otnerwise provided in this section, the
Administrator shall have supervision and direction over
the disposition of surplus property. Such property shall
be dispoced wf to such extent, at such time, in such areas,
by such agencies, at such terms and conditions, and in
such manner, as may be prescribed in or pursuant to this
Act....
(k)(1) Under such regulations as he may prescribe,
the Administrator is authorized, in his discretion, to assign
to the Secretary of Health, Education, and Welfare for
disposal such surplus real property, including buildings,
fixtures, and equipment situated thereon, as is recom-
mended by the Secretary of Health, Education, and Wel-
fare as being : -eded for school, classroom, or other educa-
tional use, or for use in the protection of public health,
including research.
(A) Subject to the disapproval of the Admin-
istrator within thirty days after notice to him by the
Secretary of Healtn, Education, and Welfare of a
proposed transfer of property for school, classroom,
or other educational use, the Secretary of Health,
Education, and Welfare, through such officers or em-
Statutory Provisions A51
ployees of the Department of Health, Education, and
Welfare as he may designate, may sell or lease such
real property, including buildings, fixtures, and equip-
ment situated thereon, for educational purposes to
the States and their political subdivisions and instru-
mentalities, and tax-supported educational institutions,
and to other nonprofit educational institutions which
have been held exempt from taxation under section
101(6) of Title 26... .
(C) In fixing the sale or lease value of property
to be disposed of under subparagraph (A) and sub-
paragraph (B) of this paragraph, the Secretary of
Health, Education, and Welfare shall take into con-
sideration any benefit which has accrued or may
accrue to the United States from the use of such
property by any such State, political subdivision, in-
strumentality, or institution. . . .
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.