Amicus Curiae Brief — United States Catholic Conference v. Abortion Rights Mobilization, Inc.

No. 87-416

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

>

UNITED STATES CATHOLIC CONFERENCE and

NATIONAL CONFERENCE OF CATHOLIC BISHOPS,

Petitioners,

—_—vV.—

ABORTION RIGHTS MOBILIZATION, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL LIBERTIES

UNION FOUNDATION, NEW YORK CIVIL LIBERTIES UNION,

NATIONAL ORGANIZATION FOR WOMEN, CATHOLICS FOR A

FREE CHOICE, AND NATIONAL EMERGENCY CIVIL LIBERTIES

COMMITTEE IN SUPPORT OF RESPONDENTS

Arthur N. Eisenberg Steven R. Shapiro

New York Civil Liberties Union (Counsel of Record)

132 West 43 Street John A. Powell

New York, New York 10036 Helen Hershkoff

(212) 382-0557 C. Edwin Baker

American Civil Liberties

Union Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....+. «2 « « «

INTEREST OF AMICI. .

SUMMARY OF ARGUMENT .

De beaut « 6-6: 6 «.¢ «© ¢ © 6 © @

ASSUMING RESPONDENTS MEET THE

CONSTITUTIONAL REQUIREMENTS FOR

ARTICLE III STANDING, THERE ARE

NO PRUDENTIAL REASONS TO DISMISS

THEIR COMPLAINT ON STANDING

GROUNDS . . «. «© «© © © © «© « «

A. The Relief Requested By

Respondents In This Case

Does Not Unduly Intrude On

Executive Authority To

Enforce The Law ...... .

B. The Concept of Prosecu-

torial Discretion Does Not

Bar Relief In This Case ..

C. Respondents Should Not

Be Required To Seek Relief

From The Political Process

When The Essence Of Their

Claim Is That The Political

Process Has Been Skewed

In Favor Of Their Political

Opponents ... +. -e«« «

CONCLUSION ...« ++ « © © © © © © »

TABLE OF AUTHORITIES

Roe v. Wade,

Page 410 U.S. 113 (1973) a. see « & 4 28

Ca

—_ Simon Vv. Eastern Kentucky

: Welfare Rights OF

Allen v. Wrigh Welfare Rights Ord-,

‘ 1.S. SS

468 U.S. 737 (1984) 426 U.S. 26 (1976)

>. _ . >. _ > > — . e 5 ;

Ba Vv Speiser V. Bonda ,

_ & Speiser v. Fandall

, 357 U.S. 513 (1958)

369 U.S. 186 (1962) ....4-6.e. « 12, 33

29

United States V- Carolene Products,

Bob Jones University v. United States

144 (1938 : itt ~« oe, oF

461 U.S. 574 (1983) ..... . — os ogee

va ° isti College v.

Bre oard of Education ; ; 3

347 U S. 183 (1954) , ericans qd Separation

. . . . ° . . . . e * - 17 u =. a n es

: ee ee 19

cammarano v. United states, — :

58 U.S.

U.S. 498 (1959) . .« «© «© © © «© «© «© « 29 Vander Jagt Vv. O'Neill,

fisstv. cohen, 699 F.2d 1166 (D.C. Cir. 1983) +--+ s+: * 11

9 -S. ;

2 U.S. 83 (1968) . . « «© « « « © « «© « 2 Warth v. Seldin,

Heckler v. Chaney, 422 U.S. 490 (1975) . * . . . . . . . . 28

47 e ®

O U.S. 821 (1985) . . « «© « « «© « 25-27 Wayte v. States,

Marbury vy. 470 U.S. 598 (1985) -- sree tt" 27

5 U.S. (1 Cranch) 137 (1803) . . «. « « « 17

Statutes

Regan v. Taxation-with Representation,

461 U.S. 540 (1983) ... . 29 Administrative Procedure Act,

Dum epentey(a) ---- °° °°’ 26

Re Vv.

377 U.S.

U.S. 533 (1964) oo 6 6 6 eee Internal Revenue Code,

Rizzo v. Goode, §501(c) (3), 26 U-S- Cc. §501(c)(3) - + 16, 34

423 U.S. 368 (1076) « «se 22

ii iii

Other Authorities

Ely, Democracy and Distrust (1980) ..

Nichol, "Abusing Standing:

A Comment on Allen v. Wright,"

133 U.Pa.L.Rev. 635 (1985) .-

Tribe, American Constitutional

Mm (eee bw ec ce: ° e

Tushnet, "The Sociolo

gy of

Article III: aA Response to

Professor Brilmayer,"

93 Harv.L.Rev. 1698 (1980)

iv

INTEREST OF AMICI2/

The American Civil Liberties Union

(ACLU) is a nationwide, non-partisan

organization with over 250,000 members.

The New York Civil Liberties Union (NYCLU)

is its statewide affiliate. The ACLU was

founded in 1920 as an organization

dedicated to the defense of individual

rights. In pursuit of that goal, the ACLU

frequently appears in federal courts

throughout the country. The continued

availability of the federal courts as a

meaningful forum for constitu- tional

litigation is a major institutional

concern of the ACLU.

The National Organization for Women,

Inc. (NOW), founded in 1966, is a national

1/ letters of consent pursuant to Rule 36.2 have

been filed with the Clerk of the Court.

membership organization of 160,000 women

and men in over 750 chapters throughout the

country. NOW has as one of its priorities

the preservation of the right to reproduc-

tive freedom, including abortion, and

believes that access to the courts is an

important means of preserving that right.

Catholics For a Free Choice (CFFC) is

a national educational organization

established in 1973 that supports the right

to legal reproductive health care,

including family Planning and abortion. As

an organization of Catholics, CFFC supports

policies of strict separation of church and

state, based not only on the U.S.

Constitution, but also on the Roman

Catholic Declaration on Religious Liberty

(Vatican II Dignitatif Humanae, 7 December

1965), which declares: "., , the civil

authority must see that the equality of

citizens before the law, which is itself an

element of the common good of society, is

never violated either openly or covertly

for religious reasons and that there is no

discrimination among its citizens."

The National Emergency Civil Liberties

Committee (NECLC) is a not-for-profit

organization dedicated to the preservation

and extension of civil liberties and civil

rights. Founded in 1951, it has brought

numerous actions in the federal courts to

vindicate constitutional rights. Through

its educational work, it likewise has

sought to preserve our liberties. From

time to time, NECLC submits amicus curiae

briefs to the courts when it believes

issues of particular import for civil

liberties are at stake.

The contention that respondents lack

standing to bring the underlying lawsuit

against IRS is based, in amici's view, on

an unduly narrow conception of federal

jurisdiction under Article III. Amici are

especially troubled by what we perceive as

petitioners' attempt to expand the

prudential limitations on Article III

standing.2/ We believe that petitioners’

position in this case reflects a basic

misunderstanding of the relationship

between the concept of standing and the

notion of separation of powers.

The purpose of this brief is to

explore that relationship. To avoid

burdening the Court with repetitious

argument, amici have only briefly addressed

certain other aspects of the standing

2/ Unless otherwise indicated, the term

petitioners" is used throughout this brief to

include the federal defendants who, although

technically aligned as respondents, in fact support

petitioners' standing argument.

inquiry. Amici nonetheless endorse the

conclusion of both courts below that

respondents' standing is adequately

established by the allegations of their

complaint.

SUMMARY OF ARGUMENT

In Allen v. Wright, 468 U.S. 737, 752

(1984), this Court observed that the

requirement of standing is based on "the

idea of separation of powers." The Allen

Court also noted, however, that "the idea

of separation of powers" finds expression

in a variety of legal doctrines that are

quite separate and distinct from the

standing question. Id. at 750.

It is, therefore, wrong to assume

that every concern about separation of

powers automatically translates into a

concern about standing. Yet petitioners

5

make precisely that error in their effort

to raise prudential objections to

respondents' standing in this case.

Resting on a very generalized

statement of the separation of powers,

petitioners argue that the provisions of

the In trnal Revenue Code should be

enforced by IRS and not by the courts. No

one quarrels with that statement, so long

as IRS is complying with congressional

guidelines. In this case, however, the

allegation is that IRS is not complying

with its congressional mandate. Under

those circumstances, it has traditionally

been the role of the courts to see that

the laws are faithfully executed and that

individuals who suffer the consequence of

unlawful action are not left without

remedy.

In similarly misguided fashion,

petitioners assert that the federal courts

should not take over the day-to-day

operation of administrative agencies except

in the most extraordinary circumstances.

Again, that misstates what this case is

about. Respondents have challenged an

administrative decision to grant tax

exempt status to the Catholic Church

despite its alleged political activities.

Proving that claim may involve substantial

discovery. But if that discovery reveals a

legal violation, the appropriate remedy

hardly requires a judicial takeover of IRS.

The fact that this is a "big" case does

not, by itself, render it non-justiciable.

Petitioners also rely on the concept

of prosecutorial discretion to suggest the

inappropriateness of respondents' suit.

The defense of prosecutorial discretion,

however, does not respond to the issue of

standing. Moreover, respondents allege in

their complaint that IRS has misapplied the

law in a politically biased fashion. That

assertion, which must be accepted as true

at this stage of the proceedings, is

sufficient to overcome a claim of

prosecutorial discretion, even in a more

traditional law enforcement context.

Finally, petitioners argue that

respondents' complaint amounts to nothing

more than a generalized grievance that

should be addressed to the political

branches. Although this Court has held

that a mere generalized grievance does not

confer standing, that concern is

inapplicable on the facts of this case.

First, the record as it now stands alleges

more than a mere generalized grievance.

Second, and more significantly, the

separation of powers principle that

ordinarily channels political disputes into

the political system cannot be rigidly

enforced, through standing doctrine or

otherwise, when the legal claim is that the

political system has itself been skewed in

favor of one side to the dispute, thereby

diminishing the possibility of political

redress.

ARGUMENT

ASSUMING RESPONDENTS MEET THE

CONSTITUTIONAL REQUIREMENTS FOR

ARTICLE III STANDING, THERE ARE

NO PRUDENTIAL REASONS TO DISMISS

THEIR COMPLAINT ON STANDING GROUNDS

Petitioners' effort to erect a

prudential barrier to respondents' standing

in this case rests on the misapplication of

two undisputed principles. First,

petitioners correctly assert that the

standing doctrine articulated in this

9

Court's decisions "subsumes a blend of

constitutional requirements and prudential

considerations." Vv Forge Christian

Co v. Ameri ited eparation

of Churc nd State c., 454 U.S. 464,

471 (1982). Second, petitioners cite this

Court's decision in Allen v. Wright, 468

U.S. 737, 752 (1984), for the proposition

that "the law of Article III standing is

built on... the idea of separation of

powers."

The flaw in petitioners' logic lies in

its conclusions rather than its premises.

Specifically, the prudential aspect of

petitioners' standing argument proceeds

something like this: standing includes

prudential considerations; standing also

reflects separation of powers concerns;

therefore, all separation of powers

concerns can be incorporated into the

10

standing inquiry. It is a classic case of

faulty reasoning, akin to arguing that

elephants and humans are identical since

both are mammals.

Allen v. Wright hardly supports such a

strained result. To the contrary, Allen

specifically notes that the requirement of

standing is only one of a series of

“doctrines that cluster about Article III,"

including "ripeness, political question,

and the like." 468 U.S. at 750, quoting

Vander Jaaqt v. O'Neill, 699 F.2d 1166, 1178

(D.C.Cir. 1983) (Bork, J., concurring). All

of these doctrines may share a common

heritage to the extent that each represents

an effort to reconcile the role of the

judiciary in a representative government.

Id. But each of these doctrines has also

developed its unique own set of defining

rules.

11

For example, the central inquiry in

political questions cases is whether a

legally-framed dispute has been textually

committed to another branch of government

and, if not, whether there are judicially

manageable standards for resolving it.

E.g., Baker v. Carr, 369 U.S. 186, 217

(1962). This issue may arise in a case

that also raises standing problems. But it

is obviously distinct from the question of

whether the party seeking relief has

alleged "a personal stake in the outcome of

the controversy." Id. at 204. See also

Flast v. Cohen, 392 U.S. 83, 100-01 (1968)

(distinguishing between standing and the

political question doctrine as separate

aspects of Article III justiciability).

In one sense, of course, the proper

relationship between the idea of separation

of powers and the doctrine of standing was

12

expressly debated by this Court in Allen v.

Wright. However, the majority's conclusion

that the requirements of standing must be

understood in light of the principle of

separation of powers, 468 U.S. at 761-62 &

n.26, falls far short of a holding that

the two doctrines are functionally

indistinguishable.

Writing for the Court in Allen,

Justice O'Connor specifically recognized

that the standing determination in any

particular case must be rooted in the

allegations of the complaint. In Allen

itself, the Court concluded that the

generalized grievance stated in plaintiffs'

complaint either could not be remedied by

the judicial branch or, alternatively,

could only be remedied by "a restructuring

of the apparatus established by the

13

Executive Branch to fulfill its legal

duties." 468 U.S. at 761.

Upon those distinctive facts, the

Allen Court held that standing could not be

conferred without violating the principle

of separation of powers inherent in Article

111.3/ Allen does not hold that every

objection to a complaint that can be framed

in separation of powers terms is, ipso

facto, relevant to the standing inquiry.

3/ The basis for the Court's conclusion in Allen

is somewhat ambiguous. Under well-settled law, the

three criteria for constitutional standing are

personal injury, causation, and redressability.

See Simon v. ights

426 U.S. 26, 38 (1976). In Allen, the Court

expressed concern about all three elements. The

Court also expressed concern about the

intrusiveness of any judicial remedy. However, as

various commentators have noted, the requested

relief would have been just as intrusive even if

Causation were clearly established. E.g., Nichol,

"Abusing Standing: A Comment on Allen v. Wright,"

133 U.Pa.L.Rev. 635, 646 (1985). Thus, it is not

entirely clear what the Court meant when it said

that the scope of the remedy is relevant to the

determination of causation.

-7

14

The danger of that approach, which

petitioners at least implicitly advocate in

this case, is that it "obscure[sj" the

multifaceted nature of the justiciability

question under Article III. See Tushnet,

"The Sociology of Article III: A Response

to Professor Brilmayer," 93 Harv.L.Rev.

1698, 1726 (1980). In so doing, it

undermines the principle of separated

powers that it purports to promote by

increasing the likelihood that the federal

courts will, through a process of

unexamined erosion, forfeit their role in

protecting individual rights against

official overreaching. See generally,

Tribe, American Constitutional Law §3-14

(1988).

15

A. The Relief Requested By Respondents In

This Case Does Not Unduly Intrude On

Executive Authority To Enforce The Law

Relying on Allen v. Wright,

petitioners contend that the complaint in

this case should be dismissed on standing

grounds. According to petitioners, the

relief requested by respondents violates

the principle of separation of powers

because, if granted, it would require IRS

to "restructure" its enforcement apparatus

under §501(c)(3) of the Internal Revenue

Code, 26 U.S.C. §501(c) (3).

As demonstrated below, petitioners'

characterization of the lawsuit is

factually inaccurate. See pp.22-24,

infra. Legally, petitioners' separation of

powers argument, even assuming it is

relevant to the standing inquiry, vastly

overstates the applicable law.

16

Public officials are frequently

directed to "restructure" their activities

if necessary to conform to statutory or

constitutional requirements. Our system of

government demands no less. In the famous

words of Chief Justice Marshall: "It is

emphatically the province and duty of the

judicial department to say what the law

is." Marbury v. Madison, 5 U.S. (1 Cranch)

137, 177 (1803).

Moreover, there are numerous instances

in which this Court has insisted on a

dramatic "restructuring" of government

programs in order to secure compliance with

the law. School desegregation, see Brown

v. Board of Education, 347 U.S. 483 (1954),

and redistricting, see Reynolds v. Sims,

17

377 U.S. 533 (1964), are only two examples

of this phenomenon. 4/

It is simply impossible, therefore, to

read Allen v. Wright as holding that

standing must be denied whenever the

requested relief would require the

government to "restructure" its activities.

And indeed, the Court expressly noted in

Allen that it did not accept "the more

general proposition that no consequence of

the allocation of administrative enforce-

ment resources is judicially cognizable."

468 U.S. at 761 n.26.

4/ As Justice Stevens observed in his dissenting

opinion in Allen v. Wright, 468 U.S. at 792 n.10:

"[S)tanding doctrine has never stood as a barrier

to such 'restructuring.'" Admittedly, neither

Brown nor Reynolds involved the "restructuring" of

a federal program. However, the Allen majority did

not rely on this federal-state distinction in its

discussion of separation of powers. See 468 U.S.

at 760.

18

The line between judicial abdication

and judicial usurpation is not easy to

find amidst these conflicting signposts.

Recognizing this dilemma, Allen largely

abandons the search for a universal formula

to determine standing. 2/ Thus, even under

Allen, petitioners' repeated and quite

generalized insistence on the need to

preserve administrative independence is not

particularly helpful. Rather, Allen

emphasizes, "the standing inquiry requires

careful judicial examination of a

complaint's allegations to ascertain

whether the particular plaintiff is

entitled to an adjudication of the

5/ We need not mince words when we say that the

concept of 'Art. III standing' has not been defined

with complete consistency in all of the various

cases decided by this Court which have discussed

it, mor when we say that this very fact is probably

proof that the concept cannot be reduced to a one-

senter.xe or one-paragraph definition." Valley

Forge, 454 U.S. at 475.

19

eee ee

particular claims asserted." 468 U.S. at

752.

In short, it is critical to look at

the facts. For obvious reasons,

petitioners take a far less detailed

approach. Minimizing any differences

between Allen and this case, petitioners

stress that both cases involved a challenge

to the tax enforcement policies of IRS.

Thus, petitioners argue, if the requested

relief in Allen was too intrusive to permit

standing, the result in this case must be

the same. The two cases, however, are

easily distinguishable, even when measured

on the uncertain scale of judicial

intrusiveness.

Plaintiffs in Allen brought a nation-

wide class action alleging that IRS was

failing to enforce its own regulations

denying tax exempt status to racially

20

segregated private schools. Plaintiffs

further alleged that the existence of these

white academies frustrated efforts to

desegregate the public schools that

plaintiffs' children attended. The class

definition reflected this broad legal

theory. It embraced several million black

children living in school districts that

were, or someday might be, subject to

judicial desegregation orders. 468 U.S. at

743.

The scope of the relief corresponded

to the scope of the class in Allen. Thus,

plaintiffs' complaint was not directed at

specific schools, although specific schools

were named in the complaint as illustrative

of the problem. Id. at 744. Rather,

plaintiffs sought an injunction compelling

IRS to develop and implement procedures for

identifying racially discriminatory schools

21

anywhere in the country that were

improperly receiving the benefits of tax

exemption.

This Court clearly believed that

supervision of that decree would have

required a significant degree of judicial

monitoring. As the Court noted:

{[Plaintiffs'] complaint, which

aims at nationwide relief and does

not challenge particular identified

unlawful IRS actions, alleges no

connection between the asserted

desegregation injury and the

challenged IRS conduct sufficient

to overcome the substantial

separation of powers barriers to

a suit seeking an injunction to

reform administrative procedures.

468 U.S. at 766. See also Rizzo v. Goode,

423 U.S. 362 (1976).

The complaint in this case is substan-

tially different. Unlike Allen, its chal-

lenge is limited to "particular identified

unlawful IRS action." Moreover, a judicial

order requiring IRS to rescind the tax

22

exempt stats of the Catholic Church so

long as it engages in political activity

would not require the sort of intrusive

supervision that troubled the Allen Court.

Indeed, the prohibitory injunction

plaintiffs seek here would be relatively

straightforward, assuming the allegations

in their complaint could be proved.

In an effort to create a closer fit

between this case and Allen, petitioners

have noted that there are thousands of

local parishes and schools that receive the

benefit of ;the Church's tax exempt status

and that the activities of each of these

entities are subject to examination if the

lawsuit goes forward.

While that may be true for discovery

purposes, it is not relevant to the

remedial issue that petitioners have

raised. IRS has granted the Catholic

23

Church a single, "umbrella" tax

exemption.§/ If that exemption is

inappropriate because the Church or its

constituent entities has engaged in

prohibited political activity, only one tax

exemption need be revoked. Unlike Allen,

there is no need to develop new procedures

that will then have to be applied to

numerous other, unknown organizations. Nor

is there any problem in identifying the

alleged violator.

In short, plaintiffs neither seek nor

require "an injunction to reform

administrative procedures." Allen, 468

U.S. at 766. What they seek is an order

direct’ .a IRS to enforce the law in one

specific instance. The role of the courts

&/ Gov't Brief at 2, n.1. The letter conferring

this tax exemption is reprinted in the Joint

Appendix at 24-27.

24

in determining the propriety of that order

is no more intrusive than the role the

courts played when an analogous order was

challenged by the taxpayer in Bob Jones

University v. United States, 461 U.S. 574

(1983).

B. The Concept of Prosecutorial Discretion

Does Not Bar Relief In This Case

Petitioners' second prudential attack

on respondents' standing in this case rests

on a claim of prosecutorial discretion. In

petitioners' view, the decision whether to

enforce the provisions of the tax code

against the Catholic Church is one for IRS

officials alone and cannot be dictated by

the courts.

In support of that proposition,

petitioners rely on the following passage

from Heckler v. Chaney, 470 U.S. 821, 831-

32 (1985):

25

[A]n agency decision not to enforce

(the law] often involves a compli-

cated balancing of a number of

factors which are peculiarly within

its expertise. Thus, the agency

must not only assess whether a

violation has occurred, but

whether agency resources are best

spent on this violation or another,

whether the agency is likely to

succeed if it acts, whether the

particular enforcement action

requested best fits the agency's

overall policies, and indeed,

whether the agency has enough

resources to undertake the action

at all. An agency generally cannot

act against each technical viola-

tion of the statute it is charged

with enforcing. The agency is far

better equipped than the courts to

deal with the many variables

involved in the proper ordering of

its priorities.

Chaney, of course, was not a standing

case. It was a case construing the

"committed to agency discretion" language

of the Administrative Procedure Act, 5

U.S.C. §701(a)(2). Although petitioners

minimize the importance of this distinc-

tion, it is in fact significant.

26

As the Chaney factors illustrate, the

reviewability of prosecutorial decisions

does not generally turn on the identity or

stake of the person mounting the challenge.

Indeed, most often the claim of prosecu-

torial abuse is raised by the alleged

victim of the abuse, whose stake in the

controversy cannot be disputed. Rather,

the rationale for insulating enforcement

decisions from judicial review is the lack

of judicially manageable standards.

The rule of non-reviewability,

however, is not absolute. Its limits were

summarized by this Court in Wayte v. United

States, 470 U.S. 598, 608 (1985) (citations

omitted):

(A]jlthough prosecutorial discretion

is broad, it is not "'unfettered. '

Selectivity in the enforcement of

criminal laws is . subject to

constitutional constraints." In

particular, the decision to

prosecute may not be "'deliberately

based upon an unjustifiable

27

_ . —

standard such as race, religion,

or other arbitrary classifica-

tion,'" including the exercise of

protected statutory or constitu-

tional rights.

In this case, respondents allege that

the failure of IRS to revoke the tax exempt

status of the Catholic Church reflects a

conscious decision by government officials,

whose subsidizing impact effectively

supports the political agenda of those

groups and individuals opposed to the

constitutional holding of Roe v. Wade, 410

U.S. 113 (1973).

Accepting those allegations as true,

Warth v. Seldin, 422 U.S. 490, 501 (1975),

the government's unwillingness to enforce

the provisions of the Internal Revenue Code

in an evenhanded manner exceeds the

permissible limits of prosecutorial discre-

tion. That is so, moreover, precisely

because the First Amendment requirement of

28

content-neutrality creates the judicially

manageable standard lacking in most

challenges to the exercise of prosecutorial

discretion.

This Court has repeatedly held that

the government's tax subsidies may not be

"aimed at the suppression of dangerous

ideas." Cammarano v. United States, 358

U.S. 498, 513 (1959); Speiser v. Randall,

357 U.S. 513, 519 (1958). Applying that

principle in Regan v. Taxation with Repre-

sentation, 461 U.S. 540, 548 (1983), this

Court upheld a statutory exemption that

permitted lobbying by the Veterans for

Foreign Wars, but not by other tax exempt

organizations, upon "find{ing] no indica-

tion that the statute was intended to

suppress any ideas or any demonstration

that it had that effect."

29

The record in this case does not

permit a similarly benign finding.

Whatever prudential concerns are embodied

in the notion of prosecutorial discretion,

therefore, do not apply here.

C. Respondents Should Not Be Reguired To

Seek Relief From The Political Process

When The Essence Of Their Claim Is That

iti s s kewed

Petitioners' final and most substan-

tial objection to respondents' standing

rests on the prudential doctrine that

federal courts should not adjudicate

generalized grievances that are more

properly addressed to the political

branches. That doctrine, however, is

inapplicable to this case for two reasons.

First, seupentents* complaint alleges

more than a mere generalized grievance, as

the district court properly understood.

30

Second, the complaint in this case alleges

a defect in the political process itself.

For at least fifty years, this Court has

recognized that the federal courts have an

important role to play under these

circumstances -- not in dictating the

outcome of the political debate but in

assuring that the debate proceeds according

to fair rules.

Respondents seek nothing more from

this lawsuit. Thus, it is true, as

petitioners note, that respondents have not

identified any candidates that have been

defeated or any legislative battles that

have been lost as a result of the tax

exempt status conferred on the Catholic

Church. But petitioners are wrong in

arguing that the absence of these

allegations demonstrates the lack of any

injury-in-fact.

31

The injury-in-fact that respondents

have suffered, assuming once again that th

allegations of their complaint are accepted

as true, is the necessity of fighting their

political battle on an uneven playing

fielad.2/ In conceptual terms, it is no

different than a direct federal subsidy

limited to anti-abortion candidates.

Clearly, such a subsidy would be vulnerable

to equal protection attack even if its

challengers could not conclusively

establish that any specific election was

lost as the result of the government's

improper bias.

For similar reasons, petitioners'

causation argument is flawed. According to

petitioners, the election or defeat of any

7/ This brief does not address the separate issue

of clergy standing, which respondents have also

alleged.

32

candidate (even assuming that abortion was

a major campaign issue), is the result of

myriad decisions by individual voters that

cannot be traced to any particular cause.

That argument, however, proves too much.

If accepted, it would mean that even a

losing candidate could not challenge a

campaign finance plan that was openly based

on ideological concerns.

Here, as in Baker v. Carr, 369 U.S.

186, 208 (1962) (citations omitted),

[respondents] are asserting "a

plain, direct and adequate interest

in maintaining tne effectiveness of

their votes," not merely a claim of

"the right, possessed by every

citizen, to require that the

Government be administered

according to law."

Petitioners attempt to distinguish

Baker on the grounds that this is not an

election case. The distinction is

unpersuasive, however. In Baker and the

reapportionment cases that followed, the

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essential claim was that plaintiffs' vote

was being diluted by malapportionment.

Here, the essential claim is that

respondents' vote is being diluted because

the opposing side in the abortion debate

has been granted a federal subsidy to seek

electoral support. The result in each

instance is an unfair distortion of the

electoral system that can and should be

remedied by the federal courts.

Using the language of separation of

powers, petitioners' contend that any

claim of political bias in the §501(c) (3)

program must be addressed to the political

branches and not to the judiciary. In

fact, that argument undermines the very

system of checks and balances that the

separation of powers was meant to preserve.

As Professor Ely has written, the role

of the courts in our constitutional system

34

may be analogized to the role of a referee,

who “intervene[s]} only when one team is

gaining an unfair advantage, not because

the 'wrong' team has scored." Ely,

Democracy and Distrust 103 (1980). In

United States v. Carolene Products, 304

U.S. 144, 152 n.4 (1938), this Court made a

similar point when it recognized, in now

classic fashion, the indispensable role of

the federal courts in ensuring the fairness

and inclusiveness of "those political

processes that can ordinarily be expected

to bring about [relief]... _"8/

8/ Respondents' describe this as a case of

alleged "competitor" standing. By failing to

distinguish between economic and political

competition, however, that description does not

appreciably advance the analysis. At least since

Carolene Products, the fairness of political

competition has been recognized as an appropriate

concern of the judiciary. By contrast, the

fairness of economic competition is generally a

matter for legislative determination.

a2

This case involves precisely the

situation envisioned by Carolene Products.

Respondents are not complaining about the

results of the political process but about

the "unfair advantage" given their

political opponents. They are entitled to

have that claim heard and decided in

federal court.

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CONCLUSION

For the reasons stated herein, this

Court should uphold respondents' standing

to bring the underlying lawsuit, assuming

that question is reached in this case.

Respectfully submitted,

Steven R. Shapiro

(Counsel of Record)

John A. Powell

Helen Hershkoff

C. Edwin Baker

American Civil Liberties

Union Foundation

132 West 43 Street

New York, NY 10036

(212) 944-9800

Arthur N. Eisenberg

New York Civil Liberties

Union

132 West 43 Street

New York, NY 10036

(212) 382-0557

Dated: March 11, 1988

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