Amicus Curiae Brief — Hein v. Freedom From Religion Foundation, Inc.

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No. 06-157 Le

IN THE

Supreme Court of the Anited States

DENNIS GRACE, Acting Director of the White

House Office of Faith-Based and

Community Initiatives, ef a/.,

Petitioners,

Vv.

FREEDOM FROM RELIGION FOUNDATION, INC., ef al.,

Respondents.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE STATES OF INDIANA, ALABAMA,

COLORADO, KANSAS, MICHIGAN, OHIO, OKLAHOMA,

SOUTH CAROLINA, TEXAS, VIRGINIA, WASHINGTON,

AND WYOMING AS AMICI CURIAE

IN SUPPORT OF THE PETITION

Office of the Indiana STEVE CARTER

Attorney General Attorney General

IGC South, Fifth Floor THOMAS M. FISHER*

302 West Washington Street Solicitor Gencral

Indianapolis, IN 46204 JULIE A. HOFFMAN

(317) 232-6255 Deputy Attorney General

*Counsel of Rec ord Counsel for Respondents

(Additional counsel listed inside cover)

ADDITIONAL COUNSEL

Troy King

Attorney General

State of Alabama

Phill Kline

Attorney General

State of Kansas

Jim Petro

Attorney General

State of Ohio

Henry McMaster

Attorney General

State of South Carolina

Robert F. McDonnell

Attorney General

Commonwealth of Virginia

Patrick J. Crank

Attorncy Gencral

State of Wyoming

John Suthers

Attorney General

State of Colorado

Michael A. Cox

Attorney General

State of Michigan

W.A. Drew Edmondson |

Attorney General

State of Oklahoma

Greg Abbott

Attorney Gencral

State of Texas

Rob McKenna

Attorney General

State of Washington

i

QUESTION PRESENTED

' Whether taxpayers have standing under Article III of the

Constitution to challenge on Establishment Clause grounds

the actions of Executive Branch officials pursuant to an

Executive Order, where the plaintiffs challenge no Act of

Congress, the Executive Branch actions at issue are financed

only indirectly through general appropriations, and no funds

are disbursed to any entities or individuals outside the

government.

ii

TABLE OF CONTENTS

Ree ee IE BTID ciipacencscinensccscnicontnnecncuecenssiogee

TABLE OF AUTHORITIES

CRETE HERETO EEE EHH OED

eee ee eeee

I. Clarifying the Limits of Federal-Taxpayer-

Standing Doctrine Will Likely Aid Lower

Courts with Establishment Clause Cases

Against State Officials as Well ........................

Il. Taxpayers Frequently Challenge a Wide

Variety of State Programs on Estab-

lishment Clause Grounds .......................-++--es00

Se rsrestnecnsninatidctiinininjanseneinadicenniniinianantiiniiion

ili

TABLE OF AUTHORITIES

Cases

ACLU-Ky. v. Wilkinson, 701 F. Supp. 1296

A RE pi icasttcictintesnasnnsnsitiapciinnnsmmanstinoianuiantestencmnaeiin 9

Americans United for Separation of Church & State

v. Sch. Dist. of Grand Rapids, 546 F. Supp. 1071

ee IEA: Se iccecictidinniiasaibeicantdiendundinedeumiianisiaboanssuisonian 9

ASARCO Inc. v. Kadish, 490 U.S. 605 (1989) .00......cecceceeeeees 6

Birdine v. Moreland, 579 F. Supp. 412 (N.D. Ga. 1983)....... 9

Cammack v. Waihee, 673 F. Supp. 1524 (D. Haw. 1987) .....9

Cammack v. Waihee, 932 F.2d 765 (9th Cir. 1991)............. 10

DaimlerChrysler Corp. v. Cuno, _U.S. _,

a atte UIE GE cities cntsentiicesinietaiidebentesouienpatintns passim

DeStefano v. Emergency Hous. Group, Inc.,

ee ee rs SD icidititcntiscsianlitanicitinnirenpiiccinmannioni 5

Doremus v. Bd. of Educ. of Borough of Hawthorne,

ml 4, 5,6

Everson v. Bd. of Educ. of Ewing Twp.,

6 Ce i cicincnahiiicinicitaisinihensiauainianctnctsininaniciiioniiaintions 5

Flast v. Cohen, 392 U.S. 83 (1968)..........2..2-.:022202eee00s passim

Freedom from Religion Found., Inc. v. Bugher,

| Ee Ee 8

Freedom from Religion Found., Inc. v. Thompson,

920 F. Supp. 969 (W.D. Wis. 1996) .................ccccceeseres 8,9

Frothingham v. Mellon, 262 U.S. 447 (1923)......2..-200.......2, 4

Hinrichs v. Bosma, 400 F. Supp. 2d 1103

Pk SA Se iincecintichpictiniininiahietnbinsecintiibesinatbineidaidemiedias 8

iv

nt’

Korioth v. Briscoe, 523 F.2d 1271 (Sth Cir. 1975)

Minn. Fed'n of Teachers v. Randall, 891 F.2d 1354

(8th Cir. 1989)

Minn. Fed'n of Teachers v. Nelson, 740 F. Supp. 694

GR RE, . SIP cccniiverisaeicinictsnineinanpinntiagniniinpinbinniéiaas

Porta v. Klagholz, 19 F. Supp. 2d 290 (D.N.J. 1998)

Scarpino v. Grosshiem, 852 F. Supp. 798

GS ID aI eciisiinntnsecinrnentinesimbalecniniadandansaiiadabbciiaa

Sch. Dist. of the City of Grand Rapids v. Ball,

473 U.S. 373 (1985), overruled on other grounds,

Agostini v. Felton, 521 U.S. 203 (1997) ...00.. cece

Schlesinger v. Reservists Comm. to Stop the War,

418 U.S. 208 (1974)

Simmons-Harris v. Zelman, 72 F. Supp. 2d 834

(N.D. Ohio 1999), rev'd on other grounds,

DOO ae Ga GRID vencccccsescenscnsscnsinsbovsdnineoranensseetiiees

Stark v. St. Cloud State Univ., 604 F. Supp. 1555

Sets CUED, FGI evsnrticniscnndvcttnediicgiapeptientiiiaplinihiniduamaiadd

Taub v. Kentucky, 842 F.2d 912 (6th Cir. 1988)...........

United States v. Richardson, 418 U.S. 166 (1974) .......

Valley Forge Christian Coll. v. Americans United for

Separation of Church & State, Inc.,

SOG TES. GBS CUP ceeaennensesrctnavennnavenmennsctnisasioniis

Van Zandt v. Thompson, 649 F. Supp. 583

(N.D. Ill. 1986), rev'd on other grounds,

BOF A BSED. ccnecansesinevesvinenecntanisnraspeniasnenpeapiasivociaities

FOOTE EEE EEE EEE THEE EEE EEE ETE EEE EEE EEHEOEEE HEED

Wilder v. Bernstein, 645 F. Supp. 1292 (S.D.N.Y. 1986)......9

Cases (cont'd)

Winkler v. Chicago Sch. Reform Bd. of Trustees,

2000 WL 44126, at *8 (N.D. Ill. 2000)... eee 8

Women's Emergency Network v. Bush, 323 F.3d 937

I TTT iicricenadgrtebachencintpenavinticamensiseonsuesetneanesetnntanen 5

Other Authorities

Nancy C. Staudt, Taxpayers in Court: A Systematic

Study of a (Misunderstood) Standing Doctrine,

SG SE ee 8

tit l visions

U.S. Const. art. 1, § 8, cl.1 (Commerce Clause)................. a7

CK ES RE a passim

INTEREST OF AMICI CURIAE

State officials are frequently sued in federal court by

state taxpayers seeking to enjoin various government actions

on Establishment Clause grounds. And, as the Court

confirmed just last term, state-taxpayer standing is

coterminous with federal-taxpayer standing. See

DaimlerChrysler Corp. v. Cuno, _U.S. _, 1268. Ct. 1854,

1863-64 (2006). Taxpayers generally do not have standing

to challenge government programs in federal court because

any injury to the taxpayer from misappropriation of funds

from the treasury is too remote and too attenuated to meet

the “direct injury” requirement of Article Ill. The history

underlying adoption of the Establishment Clause, however,

has led to an exception from this general rule when taxpayers

bring Establishment Clause challenges to _ legislative

spending. The decision below expanding the circumstances

in which this exception applies affects the states as well as

the federal government.

Maintaining proper limits on this exception is necessary

in light of the Constitution’s horizontal and vertical

structural limits on the exercise of government power.

Vigilance concerning Article III standing is required to avoid

using “a federal court as a forum in which to air...

generalized grievances about the conduct of government or

the allocation of power in the Federal System.” See Flasi v.

Cohen, 392 U.S. 83, 106 (1968). It is also necessary to

prevent federal courts from becoming state fiscal monitors.

See DaimlerChrysler, 126 S. Ct. at 1864. Accordingly, the

amici states, like the Federal Government, have a strong

interest in ensuring that federal courts are limited to their

proper judicial role, as justified by the text, history, and

structure of Article Ill and the First Amendment, in

adjudicating Establishment Clause casc..

2

REASONS FOR GRANTING THE PETITION

1. Clarifying the Limits of Federal-Taxpayer-Standing

Doctrine Will Aid Lower Courts with Establishment

Clause Cases Against State Officials as Well

State-taxpayer-standing doctrine, like its federal-taxpayer

counterpart, is a staple of Establishment Clause cases. And

while some lower court decisions have treated state and

federal taxpayers differently, the Court confirmed last term

in DaimlerChrysler Corp. v. Cuno, _ U.S. __, 126 S. Ct.

1854 (2006), that they should be treated the same with

respect to federal-court standing. The need is all the greater,

therefore, for the Court to clarify the historical rationale for,

and the contours of, taxpayer-standing doctrine in

Establishment Clause cases.

1. The Court initially rejected the notion that individuals

could have standing to sue cither federal or state officials in

federal court simply because they are taxpayers. In

Frothingham v. Mellon, 262 U.S. 447, 487 (1923), the Court

observed that the relation between a federal taxpayer and the

federal treasury is too remote and too speculative to confer

Article Lil standing. The Court rejected federal-taxpayer

standing because allowing it would open the floodgates for

taxpayers to challenge “every . . . appropriation act and

statute whose administration requires the outlay of public

money.” /d. Relying on separation-of-powers doctrine, the

Court observed that it has “no power per se to review the

annul acts of Congress on the ground that they are

unconstitutional” and that it may only consider such

questions when there is “direct injury” that creates a

justiciable issue. /d. at 488.

The Court first permitted federal-taxpayer standing in

Flast v. Cohen, 392 U.S. 83, 103 (1968). In Flast, the Court

held that a federal taxpayer has standing to challenge an act

of Congress only when the taxpayer can demonstrate that

3

“the challenged enactment exceeds specific constitutional

limitations imposed upon the exercise of the congressional

taxing and spending power.” /d. at 102-03.

The only relevant “specific constitutional limitation” on

the spending power for these purposes, of course, is the

Establishment Clause. This is so because historically “one

of the specific evils feared by” the Founders “was that the

taxing and spending power would be used to favor one

religion over another or to support religion in general.” /d. at

103. The Founders’ concern was that “religious liberty

ultimately would be the victim if government could employ

its taxing and spending powers to aid one religion over

another or to aid religion in general.” /d. at 103-04. Thus,

the Court held that a federal taxpayer had standing to assert

that a congressional act exceeded Congress’s powers to tax

and spend because the act violated the Establishment Clause.

Id. at 105-06. This narrow exception to the general rule

denying taxpayer standing was intended solely to address the

historical concerns of the Framers.

For this reason, the Court has rejected federal-taxpayer

standing in cases raising other theoretical limits on the

spending power. See United States v. Richardson, 418 U.S.

166, 174-75 (1974) (holding that taxpayer did not have

standing to challenge statutes regulating the CIA’s

accounting process because taxpayer did not allege any

specific constitutional limitation on Congress’s taxing and

spending power). And, more critical for this case, the

historical rationale for taxpayer standing also implies limits

on the type of government action—congressional

spending—that taxpayers may target. See Valley Forge

Christian Coll. v. Americans United for Separation of

Church & State, Inc., 454 U.S. 464, 480 (1982) (holding that

because the Framers were concerned about use of the

spending power, taxpayer standing did not extend to

challenging an executive decision to transfer a parcel of

federal property); see also Schlesinger v. Reservists Comm.

4

to Stop the War, 418 U.S. 208, 227-28 (1974) (holding that

taxpayers did not have standing to challenge executive-

branch action allowing members of Congress to maintain

reserve status in the military).

2. Meanwhile, with respect to state-taxpayer standing,

Doremus v. Bd. of Educ. of Borough of Hawthorne, 342 U.S.

429 (1952), set the same course as Frothingham. “[Wle

reiterate what the Court said of a federal statute as equally

true when a state Act is assailed: ‘The party who invokes the

power must be able to show, not only that the statute is

invalid, but that he has sustained or is immediately in danger

of sustaining some direct injury as a result of its

enforcement, and not merely that he suffers in some

indefinite way in common with people generally.”” /d at

434 (quoting Frothingham, 262 U.S. at 488). The Court

stressed that a taxpayer case could satisfy Article III “only

when it is a good-faith pocketbook action.” /d.

No Establishment Clause case from this Court since

Doremus has fully addressed state-taxpayer standing,’ but

Flast expressly declared its taxpayer/spending nexus test to

be “consistent with the limitation imposed upon state-

taxpayer standing in federal courts in Doremus ....” Flast,

392 U.S. at 102-03. Filast thus fully embraced the

understanding that state taxpayers have the same limited

ability as federal taxpayers to raise Establishment Clause

challenges.

' But see Sch. Dist. of the City of Grand Rapids v. Ball, 473

U.S. 373, 380 n.5 (1985) (collecting cases and summarily

affirming state-taxpayer standing notwithstanding Flast

based on “the numerous cases in which we have adjudicated

Establishment Clause challenges by state taxpayers to

programs for aiding nonpublic schools”), overruled on other

grounds, Agostini v. Felton, §2\ U.S. 203 (1997).

5

Consistent with this understanding, some lower courts

expressly apply Fast to state-taxpayer-standing claims. The

Eighth Circuit has commented that, because Everson v. Bd.

of Educ. of Ewing Twp., 330 U.S. | (1947), “indicated that

the establishment clause limits state spending powers as well

... the effect of Flast was to harmonize in some respects

federal and state taxpayer standing” after Doremus. Minn.

Fed'n of Teachers v. Randall, 89\ F.2d 1354, 1357 (8th Cir.

1989) (citing Everson, 330 U.S. at 16); see also Women's

Emergency Network v. Bush, 323 F.3d 937, 943 (11th Cir.

2003); DeStefano v. Emergency Hous. Group, Inc., 247 F.3d

397, 405 (2d Cir. 2001); Korioth v. Briscoe, 523 F.2d 1271,

1276-77 & n.16 (Sth Cir. 1975) (all applying Flast to state-

or local-taxpayer-standing claims). Some circuits have even

inferred that the requirement in Doremus of a “good-faith

pocketbook action,” 342 U.S. at 434, simply parallels the

general Article III direct-injury requirement. See Taub v.

Kentucky, 842 F.2d 912, 917 (6th Cir. 1988); Korioth, 523

F.2d at 1277 n.16. These cases confirm that state-taxpayer

suits are governed by the same standard as federal-taxpayer

suits.

3. Last term’s decision in DaimlerChrysler Corp. v.

Cuno, _ U.S. __., 126 S. Ct. 1854 (2006), resolved any

lingering doctrinal differences between state- and federal-

taxpayer standing. There, the Court barred state taxpayers

from suing to enjoin tax-credit incentives—-which were

designed to lure foreign businesses to the state—as violative

of the Commerce Clause. See id at 1859. The Court

rejected the theory that taxpayers are directly injured because

tax credits deplete the general fisc and impose greater

burdens on them. See id. at 1862-63.

in reaching this decision, the Court relied on cases that

have “denied federal taxpayers standing under Article III to

object to a particular expenditure of federal funds simply

because they are taxpayers.” /d at 1862. Indeed, the

“rationale for rejecting federal taxpayer standing applics with

6

undiminished force to state taxpayers,” and state taxpayers

have no argument “different from similar claims by federal

taxpayers we have already rejected under Article III as

insufficient to establish standing.” /d. at 1863; see also

ASARCO Inc. v. Kadish, 490 U.S. 605, 613 (1989) (plurality

opinion) (stating that the Court has “likened state taxpayers

to federal taxpayers” for purposes of standing and denied

Article Ill standing where taxpayers cannot establish the

requisite direct injury).

Critically, DaimlerChrysler also relied on Doremus as

authority for the proposition that state taxpayers have no

better Article II] footing than federal taxpayers. See

DaimlerChrysler, 126 S.Ct. at 1863. In fact, the Court

reaffirmed that F/ast—not Doremus—has created for

Establishment Clause cases a limited exception to the Article

II] direct-injury rule. See id-at 1864-65.

The Court has thus made it clear that federal and state

taxpayers must satisfy substantially the same standing

requirements when suing in federal court. Full exposition of

the limits of Filast, therefore, is important not only for

federal-taxpayer lawsuits, but also for state-taxpayer

lawsuits. The amici states’ related interest in limiting the

scope of permissible taxpayer standing to bring such lawsuits

further justifies granting review.

4. Because state-taxpayer standing in Establishment

Clause cases is subject to the same limits as federal-taxpayer

standing, the decision below broadening taxpayer standing

implicates not only federal government separation-of-powers

concerns, see Pet. 27-28, but also vertical federalism

concerns. As the Sixth Circuit has observed, “when State

taxpayers attack state spending in federal court, another

major consideration operates: the integrity of our

government's federalist structure.” Tauwh, 842 F.2d at 919.

7

The Court acknowledged essentially this point in

DaimlerChrysler when it mentioned the affront to state

sovereignty that occurs when federal courts stray beyond

their ken to sit in judgment of state officials without a

genuine Article III basis for review. Lax standards for state-

taxpayer lawsuits “would interpose the federal courts as

virtually continuing monitors of the wisdom and soundness

of state fiscal administration, contrary to the more modest

role Article 4 envisions for federal courts.”

DaimlerChrysler, 126 S.Ct. at 1864.

This concern arises every bit as much in Establishment

Clause cases as it does in Commerce Clause or other types of

constitutional challenges. By definition, the government

function at stake in all taxpayer-standing cases is

government spending, and “[a] sovereign must have the

authority to determine how tax revenues are to be spent, or

the power to tax is illusory.” Taub, 842 F.2d at 919. This

same core sovereign act is at issue in taxpayers’

Establishment Clause challenges. That is, whether the basis

for a taxpayer’s federal-court challenge to state spending

arises from the First Amendment or elsewhere, the

federalism value of judicial restraint—requiring forbearance

absent weil-established grounds for exercising jurisdiction—

remains the same.

For these reasons, a decision in this case may benefit the

states in terms of maintaining proper federal-state comity. If

the Court grants review, reverses, and thereby narrows the

circumstances when federal-court standing is available, it

will have the concomitant effect of alleviating some vertical

federalism concerns by reducing the number of taxpayer

cases that could be brought against states in federal court.

8

II. Taxpayers Frequently Challenge a Wide Variety of

State Programs on Establishment Clause Grounds

As things stand, state-taxpayer Establishment Clause

challenges arise relatively frequently. According to a recent

law-review article, federal district and appellate courts

decided at least 50 such claims between 1982 and 2003. See

Nancy C. Staudt, Taxpayers in Court: A Systematic Study of

a (Misunderstood) Standing Doctrine, 52 Emory L.J. 771,

819 (2003). Additionally, since 1920, state taxpayers have

been plaintiffs in at least 17 Establishment Clause cases that

have received plenary review by this Court. See id. at 815-

16.

State taxpayers bring Establishment Clause challenges

against everything from school-voucher and charter-school

programs to Boy Scout sponsorships, Good Friday holidays,

prison-rehabilitation programs, prayer rooms, legislative

prayer, monuments, nativity scenes, student-teacher

programs, dual enrollment of public school students in

religious Schools, and other similar state-government

programs.”

* See, e.g., Freedom from Religion Found., Inc. v. Bugher,

249 F.3d 606, 610 (7th Cir. 2001) (permitting taxpayer

challenge to grants to religious schools); Hinrichs v. Bosma,

400 F. Supp. 2d 1103, 1114 (S.D. Ind. 2005) (permitting

state taxpayers to challenge legislative prayer); Winkler v.

Chicago Sch. Reform Bd. of Trustees, 2000 WL 44126, at *8

(N.D. Ill. 2000) (allowing Illinois taxpayers to challenge

state agency expenditures to sponsor Boy Scouts); Simmons-

Harris v. Zelman, 72 F. Supp. 2d 834 (N.D. Ohio 1999)

(allowing Ohio taxpayers to challenge state’s payment of

tuition to private schools through voucher program), rev ‘d on

other grounds, 536 U.S. 639 (2002); Porta v. Klagholz, \9 F.

Supp. 2d 290, 295-96 (D.N.J. 1998) (addressing state-

taxpayer challenge to statute funding charter schools

operating out of church-owned buildings); Freedom from

9

This trend supports the need for review here. Like the

decision below, some federal courts have permitted state-

taxpayer-standing challenges not only to legislative-spending

programs, but also to executive action funded by general

legislative appropriations. See, e.g., Stark v. St. Cloud State

Univ., 604 F. Supp. 1555, 1557 (D. Minn. 1985) (“Funds for

operation of the University program are provided in part

Religion Found., Inc. v. Thompson, 920 F. Supp. 969 (W.D.

Wis. 1996) (allowing state taxpayers to challenge Good

Friday state holiday); Scarpino v. Grosshiem, 852 F. Supp.

798, 801 (S.D. lowa 1994) (permitting ICLU to represent

taxpaying members in challenge to prison-rehabilitation

program); Minn. Fed'n of Teachers v. Nelson, 740 F. Supp.

694 (D. Minn. 1990) (allowing state-taxpayer challenge to

statute allowing public-school students to take coursework at

_ religious post-secondary institutions); ACLU-Ky. v.

Wilkinson, 701 F. Supp. 1296, 1302-03 (E.D. Ky. 1988)

(holding state taxpayers had standing to challenge nativity

scene at state capitol); Cammack v. Waihee, 673 F. Supp.

1524, 1527 (D. Haw. 1987) (allowing state taxpayers to

challenge Good Friday state holiday); Van Zandt v.

Thompson, 649 F. Supp. 583, 587 (N.D. Ill. 1986), rev'd on

other grounds, 839 F.2d 1215 (holding taxpayer had

standing to challenge prayer room in the capitol building);

Wilder v. Bernstein, 645 F. Supp. 1292, 1309-11 (S.D.NLY.

1986) (holding that state taxpayers have standing under

Flast), Stark v. St. Cloud State Univ., 604 F. Supp. 1555,

1557 n.2 (D. Minn. 1985) (finding state-taxpayer standing to

challenge state vuniversity’s student-teacher program);

Birdine v. Moreland, 579 F. Supp. 412, 415 (N.D. Ga. 1983)

(concluding state taxpayers had standing to challenge

proposed monument); Americans United for Separation of

Church & State v. Sch. Dist. of Grand Rapids, 546 F. Supp.

1071, 1075-76 (W.D. Mich. 1982) (allowing Michigan

taxpayers to challenge school district’s “shared time”

program).

10

from the State of Minnesota's general operating fund.”); cf

Cammack v. Waihee, 932 F.2d 765, 771 (9th Cir. 1991)

(permitting taxpayer attack on Good Friday state holiday and

stating that “[l]egislative enactments are not the only

government activity which the taxpayer may have standing

to challenge”). A decision in this case, therefore, is not only

of theoretical importance to the amici states, but also is likely

to resolve issues that actually arise in cases brought against

state officials.

CONCLUSION >

The petition for a writ of certiorari should be granted.

Respectfully submitted,

STEVE CARTER

Office of the Indiana Attorney General _

Attorney General THOMAS M. FISHER*

IGC South, Fifth Floor Solicitor General

302 West Washington Street JULIE A. HOFFMAN

Indianapolis, IN 46204 Deputy Attorney General

(317) 232-6255

* Counsel of Record Counsel for Respondents

——>

Dated: August 31, 2006