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

No. 06-157

§u the Supreme Court of the United States

JAY F. HEIN, DIRECTOR, WHITE HOUSE OFFICE OF

FAITH-BASED AND COMMUNITY INITIATIVES, ET AL.,

Petitioners,

v.

FREEDOM FROM RELIGION FOUNDATION, INC., ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR AMICI CURIAE AMERICAN CIVIL LIBERTIES

UNION, AMERICANS UNITED *OR SEPARATION OF

CHURCH AND STATE, BAPTIST JOINT COMMITTEE FOR

RELIGIOUS LIBERTY, PEOPLE FOR THE AMERICAN WAY

FOUNDATION, AND ANTI-DEFAMATION LEAGUE

SUPPORTING RESPONDENTS

STEVEN R. SHAPIRO ANNE HARKAVY

DANIEL MACH Counsel of Record

AMERICAN CIVIL LIBERTIES KELLEY BROOKE SNYDER

UNION FOUNDATION CAROLINE ROGUS

125 Broad Street WILMER CUTLER PICKERING

New York, N.Y. 10004 HALE AND DORR LLP

(212) 549-2500 1875 Pennsylvania Ave., N.W.

Washington, D.C. 20006

AYESHA N. KHAN (202) 663-6000

RICHARD B. KATSKEE

AMERICANS UNITED FOR JUDITH E. SCHAEFFER

SEPARATION OF CHURCH PEOPLE FOR THE AMERICAN

AND STAT" WAY FOUNDATION

518 C Street, N.., 2000 M Street, N.W., Suite 400

Washington, D.C. 20002 Washington, D.C. 20036

(202) 466-3234 (202) 467-4999

K. HOLLYN HOLLMAN HOWARD W. GOLDSTEIN

BAPTIST JOINT COMMITTEE STEVEN M. FREEMAN

FOR RELIGIOUS LIBERTY STEVEN C. SHEINBERG

200 Maryland Avenue, N.E. ANTI-DEFAMATION LEAGUE

Washington, D.C. 20002-5797 605 Third Avenue

(202) 544-4226 New York, N.Y. 10158-3560

(212) 885-7743

| ene ema eR ET NE ISNA SEAR, SESE NY

WILSON-EPES PRINTING CO., INC. - (202) 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

a ECs i icecicticissitiinnepinnicnsiittamiinninednania iii

INTERESTS OF AMICI CURIAE .00.000.0.....cecscesssceceeseccecenees 1

SUMMARY OF ARGUMENT...............csccccccoscsosersrsssseceesncnceses 3

ITE cicichusibsstnsciisisiitiestpicaiinainlainiapitiiiiiabiaeeninciddainiagesiatoes 4

I. CHALLENGES BY TAXPAYERS TO EXPENDI-

TURES THAT VIOLATE THE ESTABLISHMENT

CLAUSE COMPORT WITH CONSTITUTIONAL

STANDING REQUIREMENTS .........c.cccsssssssssscecseesssssesssesseees 4

A. Flast Is Consistent With The Limits On

Judicial Power Embodied In Article III

IE TOI ccvcecincnntsinsttcivsitiitiiicatiiensanivinniniane 5

B. The Nature Of A Taxpayer’s Establish-

ment Clause Challenge To Federal Spend-

ing Provides The Requisite Harm To Sat-

isfy The Three Constitutional Standing

ID a cscciiscissepsiiniencicuattinnaibiaittininstaemininncitinion 7

C. Respondents Meet Article III Standing

IN ci cicccccieninttiiptcintenisnipecsstattiiiiiiiiesianiabiiaeitinits 13

II. FLAST PROVIDES AN ADMINISTRABLE RULE

re ee i cieiessitttintatssecintainictintentitiincninaninsinnn 14

A. Flast Has Not Opened The Floodgates Of

Taxpayer Litigation Because It Has Been

Effectively Limited To Establishment

SN Ci ceniesiicntincnstintinamentinisiocnsebiisiauminetasinntnine 15

B. Courts Have Also Limited Standing In

Establishment Clause Cases To Those

Federal Taxpayer Plaintiffs Challenging

Expenditures Appropriated Pursuant To

Congress’s Tax And Spend Power ..............:.sssesee 16

ii

TABLE OF CONTENTS—Continued

1. Circuit courts have denied standing

where potential plaintiffs challenged

conduct unrelated to Congress’s

power to tax and Spen .............sssssssseessesesesnees 16

2. Standing to challenge Executive

Branch expenditures of funds appro-

priated pursuant to the tax and spend

power does not exceed Flas?’s limits............... 17

II]. SETTLED PRINCIPLES OF STARE DECISIS BAR

SNE A ET cediuscsiitihedieenenduiniemsepenmadivaninmaeaatiin 19

CIC de ccesnenevstentennnveisintinsaneninsntignecnsinsissnnieduenpmneananinits 22

TABLE OF AUTHORITIES

CASES

Page(s)

Allen v. Wright, 468 U.S. 737 (1984) .........cccsscsssssecereeseeseeseees 12

American Jewish Congress v. Corporation for Na-

tional & Community Service, 399 F.3d 351

GA, Se Se crlcsiisidlehssetitenccinntaticaniivetatiiatiatiniibeteenpineniiai 17, 18

American Jewish Congress v. Vance, 575 F.2d 939

RRA: et Ce niiiaeihsceisinsictibebilinhinsenicsiinandanislisioussndptesietookesntes 18

Americans United for Separation of Church &

State v. Reagan, 786 F.2d 194 (3d Cir. 1986)............ 16, 18

Bowen v. Kendrick, 487 U.S. 589 (1989) .........ccsseeeeeeeees passim

Brown v. Board of Education, 347 U.S. 483 (1954) .............. 20

DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854

i civintincenictinsestiictteanitinhaaieninnsaviipusitiiniasiniiatiivsncvectd passim

Dickerson v. United States, 530 U.S. 428 (2000) ...........cc000 20

Doe v. Beaumont Independent School Distxct,

- Sy Ff fi. it 3 | SaRRUnceemuuaumencemmnmnne eune 14

Doremus v. Board of Education, 342 U.S. 429

Cee sciiasiiaiheasinsctheistinabitlininieeaipiiesiiasentenéypincinesicncineiniaanis 11, 12, 13

FEC v. Akins, 524 U.S. 11 (1998)............cccccsscssssssereesess 9,10, 11

Flast v. Cohen, 392 U.S. 83 (1968)...........cssssessesssesseeoees passim

Friends of the Earth, Inc. v. Laidlaw Environ-

mental Services (TOC), Inc., 528 U.S. 167

eee ciciecoetsiaihiclasedhsditinndeencncienindessetbincsoninnicscninphinapinliennieet 10

Frothingham v. Mellon, 262 U.S. 447 (1923) ........cccccseseee 4,11

Grove v. Mead School District No. 354, 753 F.2d

a I SI anak thirssiecieneriteinettesencsicutinidneitiabdnsciteannnnmtetiinis 14

In re United States Catholic Conference,

Oe ee Pe Oi Bei a ccteescescasensncinetnnisninsninaniansiaintn 19

Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985).........scsesseseees 16

Kirby v. HUD, 675 F.2d 60 (3d Cir. 1982) ..........:.csssereeeeseeeees 18

Kurtz v. Baker, 829 F.2d 1133 (D.C. Cir. 1987) ...........:0.sc00+ 16

Lamont v. Woods, 948 F.2d 825 (2d Cir. 1991) .......... 17, 18, 19

Langendorf v. Administrators of the Tulane Edu-

cational Fund, 528 F.2d 1076 (5th Cir. 1976).............. 16

Lewis v. Casey, 518 U.S. 343 (1996) ..........zcccsccsecesscorssscrsesseeses 6

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Lujan v. Defenders of Wildlife, 504 U.S. 555

Ce icctiienccaneniceieiiicapeinaitsditeediibesitpbieariicvingsei 4, 9, 10, 12, 13, 14

McConnell v. FEC, 540 U.S. 93 (2008) ............ccccecccsccseseeeeseseees 5

Mitchell v. United States, 526 U.S. 314 (1999)..........cscceseeees 20

Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974)... cceseeees 22

Patterson v. McLean Credit Union, 491 U.S. 164

SEI ppi ici snsteseesieeesietnssaheipntnichinlepegieniisceadinintiapeneionbiddidalianddenamiveadaine 20

Payne v. Tennessee, 501 U.S. 808 (1991) ........cccesesseeeseeseneesees 21

Phelps v. Reagan, 812 F.2d 1293 (10th Cir. 1987)............00 16

Planned Parenthood of Southeast Pennsylvania v.

Casey, 506 U.S. 833 (1992) .........ccosccossessssecesesseers 20, 21, 22

Pulido v. Bennett, 860 F.2d 296 (8th Cir. 1988).............cc000 17

Schlesinger v. Reservists Committee to Stop the

Se Fak ee UD hein tienentateiniicinnesecesesiniteinnitanasinidapiiiaces 5

Smith v. Organization of Foster Families For

Equality & Reform, 431 U.S. 816 (1977) ....scssescecereeees 10

Steel Co. v. Citizens for a Better Environment,

Ee TI Oe Cee i scescccacsesisinnecieinicansasniidiniiiceasiniaiialaiinks 9, 13

Storino v. Borough of Point Pleasant Beach,

Se ee Be ee ls Se citectesnsciicersincescsveniitcnnepiteiianele 15

Swift & Co. v. Wickham, 382 U.S. 111 (1965)... cesseeseeeeees 21

Troutman v. Shriver, 417 F.2d 171 (5th Cir. 1969)............... 15

United States v. Richardson, 418 U.S. 166 (1974)...........0000 12

United States v. Students Challenging Regulatory

Agency Procedures (SCRAP), 412 U.S. 669

Valley Forge Christian College v. Americans

United For Separation of Church & State,

rh I CE eetircsecctniinsieniciintinininiiatipiienns 4,6, 9,11, 13

Vasquez v. Hillery, 474 U.S. 254 (1986)........sscceseesees 19, 20, 22

Walz v. Tax Commission of City of New York,

Se a COE iecnesiicidectcleastatanrinssnenestiissennciplaienincnietiinien 9

Warth v. Seldin, 422 U.S. 490 (1975)..........ccccccccssseesseeeeeseees 4,5

West Coast Hotel Co. v. Parrish, 300 U.S. 379

Ta erties siceassisdisinsbianeeiitenndiipedeciusnieninicaiaslesinniinsidaapesbindintnianleinn 20

4

IN THE

Supreme Court of the United States

No. 06-157

JAY F. HEIN, DIRECTOR, WHITE HOUSE OFFICE OF

FAITH-BASED AND COMMUNITY INITIATIVES, ET AL.,

Petitioners,

v.

FREEDOM FROM RELIGION FOUNDATION, INC., ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR AMICI CURIAE AMERICAN CIVIL LIBERTIES

UNION, AMERICANS UNITED FOR SEPARATION OF

CHURCH AND STATE, BAPTIST JOINT COMMITTEE FOR

RELIGIOUS LIBERTY, PEOPLE FOR THE AMERICAN WAY

FOUNDATION, AND ANTI-DEFAMATION LEAGUE

SUPPORTING RESPONDENTS

INTERESTS OF AMICI CURIAE'

The American Civil Liberties Union (“ACLU”) is a na-

tionwide, nonprofit, nonpartisan organization with more

than 550,000 members dedicated to the preservation and de-

fense of constitutional rights and civil liberties. Since its

founding in 1920, the ACLU has frequently advocated in

' No counsel for either party authored this brief in whole or in part

and no persons or entities, other than amici, their members or their coun-

sel, made a monetary contribution to the preparation or submission of this

brief. Letters from the parties consenting to the filing of this brief are on

file with the Clerk.

2

support of the religious freedoms guaranteed by the First

Amendment, both as direct counsel and as amicus curiae.

Because this case involves fundamental issues of religious

liberty, and the ability to vindicate those rights in federal

court, its proper resolution is a matter of significant concern

to the ACLU and its members throughout the country.

Americans United for Separation of Church and State is

a 75,000-member national, nonsectarian public interest or-

ganization committed to defending religious liberty and the

separation of church and state. Since its founding in 1947,

Americans United has been involved as a party, as counsel,

or as an amicus curiae in many of the leading church-state

cases that have come before the state and federal courts, in-

cluding this Court. Americans United is currently serving

as counsel in four cases in which the plaintiffs have asserted

taxpayer standing to raise Establishment Clause claims. As

an organization frequently involved in such litigation,

Americans United can offer the Court special insight into

the constitutional issues raised by this case.

The Baptist Joint Committee for Religious Liberty

(“BJC”) is a 70 year-old education and advocacy organization

that serves fourteen cooperating Baptist conventions and

conferences in the United States, with supporting congrega-

tions throughout the nation. BJC deals exclusively with re-

ligious liberty and church-state separation issues and be-

lieves that vigorous enforcement of both the Establishment

and Free Exercise clauses is essential to religious liberty for

all Americans. BJC has participated as amicus curiae in

many of the major religious liberty cases before the Su-

preme Court.

People For the American Way Foundation (“PFAWF”)

is a nonpartisan citizens organization established to promote

and protect civil and constitutional rights. Founded in 1980

by a group of religious, civic, and educational leaders de-

voted to our nation’s heritage of tolerance, pluralism, and

liberty, PFAWF now has more than 750,000 members and

activists nationwide. PFAWF has frequently represented

parties and filed amicus curiae briefs in litigation seeking to

3

defend First Amendment rights, including cases concerning

religious liberty and violations of the Establishment Clause.

PF AWF has joined in filing this amicus brief in order to help

defend the important principles of standing and access to

justice at stake in this case.

Organized in 1913 to advance good will and mutual un-

derstanding among Americans of all creeds and races to

combat racial, ethnic, and religious prejudice in the United

States, the Anti-Defamation League (“ADL”) is today one of

the world’s leading organizations fighting hatred, bigotry,

discrimination, and anti-Semitism. The League brings to

this case a unique national perspective, acquired from day-

to-day experience serving constituents across the United

States, which sets it apart from the parties directly involved.

Decades of work on issues related to the First Amendment’s

religion clauses have reinforced ADL’s core belief in the im-

portance of strict adherence to the separation of church and

state as a means of reserving religious freedom and protect-

ing our democracy. Because taxpayer standing is critically

important to enforcing separation and seeking redress for its

violation, ADL believes that taxpayer access to the courts is

fundamental to preserving religious liberty and democracy.

SUMMARY OF ARGUMENT

Petitioners and their amici seek to erode, if not jettison,

Flast v. Cohen, 392 U.S. 83 (1968). But Flast is a simple,

straightforward application of longstanding principles that

the lower courts have been able to apply with ease. The un-

dersigned amici support affirmance of the Seventh Circuit’s

decision, and submit this brief to demonstrate that Fast is

consistent with, and remains vital to, this Court’s standing

jurisprudence.

When taxes levied and appropriated by Congress are

spent in violation of the Establishment Clause, a taxpayer

may constitutionally challenge such expenditures because he

suffers a direct and concrete injury that is caused by the il-

legal expenditure and that would be redressed by enjoining

it. This principle—recognized in Flast v. Cohen, 392 U.S. 83

4

(1968), clarified in Bowen v. Kendrick, 487 U.S. 589 (1989),

and confirmed last Term in DaimlerChrysler Corp. v. Cuno,

126 S. Ct. 1854 (2006)—is not a doctrinal anomaly but rather

a straightforward application of the well-settled constitu-

tional standing requirements of injury, causation, and re-

dressability. Moreover, because this principle is entirely

consistent with this Court’s general standing jurisprudence,

it has been easily administrable by lower courts.

ARGUMENT

I. CHALLENGES BY TAXPAYERS TO EXPENDITURES THAT VIO-

LATE THE ESTABLISHMENT CLAUSE COMPORT WITH CONSTI-

TUTIONAL STANDING REQUIREMENTS

The standing recognized in Flast and Kendrick is fully

consistent with this Court’s broader standing jurisprudence.

Taxpayers who invoke Flast to challenge Establishment

Clause violations must make the same individualized show-

ing of injury, causation, and redressability required of all

plaintiffs seeking standing in Article III courts. See Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).

Although the term “taxpayer standing” typically refers

to a type of standing sought by plaintiffs who rely solely on

their status as taxpayers and who cannot meet the constitu-

tional elements of standing, see Frothingham v. Mellon, 262

U.S. 447, 485-486 (1923); see also Warth v. Seldin, 422 U.S.

490, 508-511 (1975); Valley Forge Christian Coll. v. Ameri-

cans United for Separation of Church & State, 454 U.S. 464,

476-482 (1982), the mere fact that a plaintiff objects as a tax-

payer to a federal expenditure does not automatically pre-

clude standing. Frothingham’s rejection of “taxpayer stand-

ing” is a proxy—a generalization about the application of

constitutional principles to plaintiffs who suffer no concrete,

distinct injury. “Taxpayer standing” is not an independent

constitutional bar,’ and it does not trump a court’s obligation

? When the Flast Court undertook what it called a “fresh examina-

tion of the limitations upon standing to sue in a federal court and the ap-

plication of those limitations to taxpayer suits,” it expressly rejected the

5

to evaluate standing based on the nature of the particular

claims asserted in a specific case. See Warth, 422 U.S. at 500

(explaining that standing “often turns on the nature and

source of the claim asserted”); see also McConnell v. FFC,

540 U.S. 93, 227 (2003) (same). While Flast may represent a

departure from the general prohibition against taxpayer

standing, it is not an exception to Article III’s requirements.

Under Flast and its progeny, plaintiffs who are taxpayers

and who challenge federal spending as violative of the Es-

tablishment Clause do not need—and do not receive—any

special dispensation from Article III’s standing require-

ments.

A. This Court’s Cases Make Clear That Flast Is Consis-

tent With The Limits On Judicial Power Embodied

In Article III Standing Doctrine

Far from being “out of step with the rest of Article III

standing doctrine,” State Attorneys General Br. 15, Flast

emphasized the constitutional constraints on the federal ju-

diciary and linked those constraints to limits on standing.

Flast expressly recognized the “dual limitation placed upon

federal courts by the case-and-controversy doctrine,” which

includes both “limit{ing] the business of federal courts to

questions presented in an adversary context and in a form

historically viewed. as capable of resolution through the judi-

cial process,” and “defin{ing] the role assigned to the judici-

ary in a tripartite allocaticn of power to assure that the fed-

eral courts will not intrude into areas committed to the other

branches of government.” 392 U.S. at 95. In so doing, Flast

Government’s assertion that “the constitutional scheme of separation of

powers ... present(s! an absolute bar to taxpayer suits challenging the

validity of federal spending programs.” 392 U.S. at 94, 98. No subsequent

case has disturbed this determination. See Kendrick, 487 U.S. at 619-620

(granting standing to taxpayers in Establishment Clause case);

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974)

(explaining that, under Flast, taxpayer status can “supply the personal

stake essential to standing”). Accordingly, the general rule against tax-

payer standing has no force apart from the constitutionally required ele-

ments of standing.

6

rejected the roving “private attorneys-general” model of

standing that Justice Douglas would have permitted, id. at

108 (Douglas, J., concurring), observing that the case-or-

controversy requirement is not met “where a taxpayer seeks

to employ a federal court as a forum in which to air his gen-

eralized grievances about the conduct of government or the

allocation of pe wer in the Federal System.” Jd. at 106.

Indeed, tnis Court’s Article III analysis last Term in

DaimlerChrysler confirms Flast’s continuing significance

and its consistency with modern standing doctrine. First,

DaimlerChrysler relies on language from Flast to explain

the link between standing rules and preserving separation of

powers. See 126 S. Ct. at 1861 (“This Court has recognized

that the case-or-controversy limitation is crucial in maintain-

ing the ‘tripartite allocation of power’ set forth in the Consti-

tution.”) (quoting Valley Forge quoting Flast). Second,

DaimlerChrysler echoes Flast’s identification of the suscep-

tibility of a dispute to judicial resolution as an essential ele-

ment of a “case” or “controversy.” Flast makes clear that

Article III limits the federal judicial power not only “to

those disputes which confine federal courts to a rule consis-

tent with a system of separated power,” but also to those

“which are traditionally thought to be capable of resolution

through the judicial process.”’ Flast, 392 U.S. at 97; see also

Valley Forge, 454 U.S. at 472 (quoting this language from

Flast). Likewise, DaimlerChrysler describes a dispute that

> This analysis makes clear that Flast acknowledges the separation

of powers component in the Article III case-or-controversy requirement

that forms the basis for the standing doctrine. Any indication to the con-

trary in Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996), was dicta, and, in any

event, was subsequently corrected in DaimlerChrysler, 126 S. Ct. at 1861.

Furthermore, the principle elucidated in Flast—that the Establishment

Clause is a specific limitation on the tax and spend power—provides as-

surance that “the federal courts will not intrude into areas committed to

the other branches of government.” Flast, 392 U.S. at 96; see also Daim-

lerChrysler, 126 S. Ct. at 1861. The judicial branch is permitted to decide

a taxpayer’s claim only when the taxpayer asserts that an identifiable and

articulated limit on the tax and spend power has been exceeded. See Ken-

drick, 487 U.S. at 619; Flast, 392 U.S. at 102-103.

7

satisfies constitutional standing principles as “a controversy

between parties which ha[s] taken a shape for judicial deci-

sion” and is “of a Judiciary Nature.” 126 S. Ct. at 1861.

Thus, notwithstanding Petitioners’ amici’s description of

Flast as a “withered husk,” State Attorneys General Br. 23,

that is “manifest{ly] inconsisten[t] with the rest of Article

III caselaw,” American Center for Law and Justice Br. 13,

this Court’s reliance on Flast in DaimlerChrysler confirms

Flast’s continuing relevance and conclusively refutes the

charge that it is disconnected from Article III jurisprudence.

B. The Nature Of A Taxpayer’s Establishment Clause

Challenge To Federal Spending Provides The Req-

uisite Harm To Satisfy The Three Constitutional

Standing Requirements

Contrary to the assertions of several of Petitioners’

amici, see, e.g., American Center for Law and Justice Br. 9;

State Attorneys General Br. 14-15; Foundation for Moral

Law, Inc. Br. 9-10, plaintiffs who rely on Flast allege stand-

ing based on a concrete and direct harm. The Establish-

ment Clause itself provides protection against a specific in-

jury: the improper expenditure of taxpayer funds. See

Flast, 392 U.S. at 104 (Establishment Clause was designed

“as a specific bulwark” against potential abuses of govern-

mental power and “operates as a specific constitutional limi-

tation” on the tax and spend power”); id. at 114 (Stewart, J.

concurring) (stating that because the Establishment Clause

“plainly prohibits taxing and spending in aid of religion,

every taxpayer can claim a personal constitutional right not

to be taxed for the support of a religious institution”); see

also DaimlerChrysler, 126 S. Ct. at 1865.

In Flast, the taxpayers had standing to bring suit under

the Establishment Clause, claiming that Executive Branch

officials had used funds that were appropriated by Congress

to finance instruction in religious schools. See 392 U.S. at 85-

87. The F'last Court observed:

Our history vividly illustrates that one of the spe-

cific evils feared by those who drafted the Estab-

lishment Clause and fought for its adoption was

8

that the taxing and spending power would be used

to favor one religion over another or to support re-

ligion in general.

Id. at 103. Consequently, a taxpayer challenging govern-

ment action under the Establishment Clause has “a clear

stake” in the outcome of the action, because a “logical nexus”

exists between the plaintiff's taxpayer status and his claim

of Establishment Clause violation. Jd. at 102-106. The tax-

payer’s stake assured the Flast Court of the presence of

“that concrete adverseness which sharpens the presentation

of issues upon which the court so largely depends for illumi-

nation of difficult questions,” and which fulfills Article III’s

requirement that there be a case or controversy “in a form

historically viewed as capable of resolution through the judi-

cial process.” Jd. at 95, 99 (internal quotations and citations

omitted).

As in Flast, the taxpayers in Kendrick were permitted

to challenge Executive Branch officials’ use of funds that

Congress had appropriated for disbursement under a federal

program for social services. 487 U.S. at 618. There, the

Government argued that the taxpayers’ suit was in actuality

a challenge to executive action, and not to an exercise of

congressional authority under Article I, § 8—the same ar-

gument the Government makes here. /d. at 619. The Court

rejected this argument. It explained that the taxpayers’

claim that federal funds were being used improperly by in-

dividual grantees was no less a challenge to congressional

tax and spend power “simply because the funding authorized

by Congress has flowed through and been administered by

the Secretary.” Jd. As the Kendrick Court recognized, the

appropriate inquiry is not whether the challenged expendi-

tures required action by the Executive Branch, but whether

there is “a sufficient nexus between the taxpayer’s standing

as a taxpayer and the congressional exercise of taxing and

spending power.” /d. at 619-620. The participation of Ex-

ecutive Branch officials in disbursing those monies has no

bearing on the standing analysis. Where plaintiffs “call into

question how the funds authorized by Congress are being

9

disbursed pursuant co the ... statutory mandate,” they are

challenging the tax and spend power. See id. at 619-620. Cf.

Valley Forge, 454 U.S. at 489-490 (no taxpayer standing

where Article I, § 8 powers not challenged, such that there

was no congressional action but only an Executive Branch

decision); Kendrick, 487 U.S. at 619 (distinguishing Valley

Forge as a case “where the challenge was to an exercise of

executive authority pursuant to the Property Clause” and

not Article I, § 8).

The “constitutional minimum” of standing contains

three elements: the plaintiff must have suffered an injury in

fact; there must be a causal connection between the injury

and the conduct complained of; and it must be likely that the

injury will be redressed by a favorable decision. Lujan, 504

U.S. at 560-561. The type of standing recognized in Flast

and Kendrick is entirely consistent with this “constitutional

minimum.”

1. Flast and its progeny require plaintiffs to demon-

strate the requisite injury in fact, “a requirement that helps

assure that courts will not pass upon abstract, intellectual

problems, but adjudicate concrete, living contests between

adversaries.” FEC v. Akins, 524 U.S. 11, 20 (1998) (internal

citations and quotations omitted); see Lujan, 504 U.S. at 560

(injury must be “an invasion of a legally protected interest”

that is concrete and particularized and actual or imminent);

see also DaimlerChrysler, 126 S. Ct. at 1862 (same); Steel

Co. v. Citizens for a Better Env't, 523 U.S. 88, 103 (1998)

(same). Each taxpayer plaintiff is directly injured by the

improper expenditure of tax dollars, which is the precise

harm that the Establishment Clause was designed to pre-

vent. Walz v. Tax Comm’n of City of New York, 397 U.S.

664, 668 (1970) (“For the men who wrote the Religion

Clauses of the First Amendment the ‘establishment’ of a re-

ligion connoted sponsorship, financial support, and active

involvement of the sovereign in religious activity.”).’ As this

* The Flast Court observed:

10

Court recognized last Term, the injury suffered by the tax-

payer in Establishment Clause challenges to federal spend-

ing is “the very ‘extract[ion] and spen[ding]’ of ‘tax money’

in aid of religion alleged by a plaintiff.” DaimlerChrysler,

126 S. Ct. at 1865. Moreover, the injury is the fact that the

taxpayer’s “money is being extracted and spent in violation

of specific constitutional protections against such abuses of

legislative power.” Fast, 392 U.S. at 106.

Furthermore, the taxpayer’s injury, as a “concrete and

particularized” harm, Lujan, 504 U.S. at 560, fits squarely

within the realm of cognizable injuries sufficient for Article

III standing. Indeed, outside the Establishment Clause con-

text, this Court has granted standing for plaintiffs with far

more attenuated injuries. See, e.g., Friends of the Earth,

Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 181-

182 (2000) (standing established where environmental plain-

tiffs averred that defendant’s activities directly affected

plaintiffs’ recreational and aesthetic interests in affected

area); Akins, 524 U.S. at 21 (injury in fact consisted of vot-

ers’ inability to obtain relevant financial information regard-

ing organization alleged to be a political committee); Lujan,

504 U.S. at 566-567 (a person who observes or works with a

particular animal threatened by a federal decision “is facing

perceptible harm” for standing purposes); Smith v. Organi-

zation of Foster Families For Equality & Reform, 431 U.S.

816, 841 (1977) (foster parents had standing to raise the

James Madison, who is generally recognized as the leading ar-

chitect of the religion clauses of the First Amendment, ob-

served in his famous Memoria] and Remonstrance Against Re-

ligious Assessments that “the same authority which can force a

citizen to contribute three pence only of his property for the

support of any one establishment, may force him to conform to

any other establishment in all cases whatsoever.” The concern

of Madison and his supporters was quite clearly that religious

liberty ultimately would be the victim if government could em-

ploy its taxing and spending powers to aid one religion over an-

other or to aid religion in general.

Flast, 392 U.S. at 103-104 (internal citations omitted).

11

rights of children); United States v. Students Challenging

Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 688-

689 (1973) (alleged harm from inability to use natural re-

sources was “specific and perceptible harm” for standing

purposes).

The concrete and particularized harm recognized in

Flast and Kendrick contrasts sharply with the harms al-

leged in cases in which this Court has denied standing to

taxpayers. In Frothingham, for example, a taxpayer com-

plained that an appropriation violated the Tenth Amend-

ment. 262 U.S. at 479. This improper expenditure, she ar-

gued, caused her direct harm because the appropriations

might increase “the burden of future taxation.” J/d. at 486.

But, as this Court recognized, any possible injury from an

increased tax burden “is shared with millions of others, is

comparatively minute and indeterminable, and ... so re-

mote, fluctuating and uncertain” that it cannot serve as the

concrete injury necessary for standing in federal courts. /d.

at 487. In contrast, taxpayers who claim that expenditures

were made in violation of the Establishment Clause suffer

an immediate and direct harm from the expenditure itself,

without regard for the speculative effect on their overall tax

burden. See DaimlerChrysler, 126 S. Ct. at 1865.°

2. The standing recognized in Flast also satisfies the

causation element of Article III standing. Where taxpayers

are challenging government misuse of funds appropriated

under Congress’s tax and spend power, there is a direct link

between the conduct and the harm suffered—“the very ‘ex-

tract[ion] and spen{ding]’ of ‘tax money’ in aid of religion.”

DaimlerChrysler, 126 S. Ct. at 1865; see Akins, 524 U.S. at

25 (voters’ inability to obtain financial information regarding

organization was a harm that was “fairly traceable” to the

* Although they brought Establishment Clause claims, the plaintiffs

in Doremus v. Board of Education, 342 U.S. 429, 433 (1952), and Valley

Forge, 454 U.S. at 480—unlike Respondents in this case—were unable to

identify any appropriated funds that they alleged had been misused, and

therefore were also unable to demonstrate an injury in fact.

12

FEC’s decision that such organization was not a political

committee).° Accordingly, the taxpayer’s injury is “not the

result of the independent action of some third party not be-

fore the court” but is instead “fairly traceable” to the gov-

ernment’s alleged illegal expenditure. Lujan, 504 US. at

560 (internal quotation marks omitted).

Flast makes clear that the requisite causal link is estab-

lished when taxpayers challenging appropriated expendi-

tures on Establishment Clause grounds satisfy the “logical

nexus” test, which requires a link between taxpayer status

and the type of program challenged, as well as a nexus be-

tween that status and the precise nature of the constitu-

tional infringement alleged. Flast, 392 U.S. at 102-103. Be-

cause Establishment Clause challenges to disbursements of

congressional appropriations are directed at “identifiable

Government violations of law,” Allen v. Wright, 468 U.S.

737, 759-760 (1984), the constitutional requirement is satis-

fied. See Flast, 392 U.S. at 102 (“[I]}t is both appropriate and

necessary to look to the substantive issues . . . to determine

whether there is a logical nexus between the status asserted

and the claim sought to be adjudicated.”); see also United

States v. Richardson, 418 U.S. 166, 174 (1974) (quoting

Flast).

In contrast, Establishment Clause plaintiffs who fail to

show a direct link between the government action and their

taxpayer status consistently have been denied standing. In

Doremus v. Board of Education, 342 U.S. 429 (1952), this

Court refused to grant standing to taxpayers complaining

about Bible reading in public schools because they made no

claims that the Bible reading was supported by any “meas-

urable appropriation or disbursement of school-district funds

” This link between the alleged misconduct and the harm suffered is

no less direct when the funds pass through the hands of Executive Branch

officials. For purposes of Article III standing analysis, the touchstone

event is when the appropriation is used, by any branch of the government,

to fund religious activity. See Flast, 392 U.S. at 87-88 (upholding taxpayer

challenge to executive officials’ expenditure of federal funds); Kendrick,

487 US. at 589 (same).

13

occasioned solely by the activities complained of.” Jd. at 434.

With no allegation that the complained of conduct used ap-

propriated funds, the plaintiffs were unable to show the req-

uisite causal relationship. Jd. at 434-435 (“It is not a ques-

tion of motivation but of possession of the requisite financial

interest that is, or is threatened to be, injured by the uncon-

stitutional conduct.”). Similarly, the plaintiffs in Valley

Forge challenged government action pursuant to the Prop-

erty Clause, rather than the Tax and Spend Clause, elimi-

nating any nexus between the complained of conduct and the

plaintiffs’ standing as taxpayers. Valley Forge, 454 U.S. at

480; see also Kendrick, 487 U.S. at 619.

3. The standing permitted in Flast and its progeny also

satisfies the redressability prong of this Court’s general

standing analysis. The possibility of redress for the injury

“must be likely, as opposed to merely speculative.” Lujan,

504 U.S. at 561 (internal quotations and citations omitted);

see Steel Co., 523 U.S. at 106-110 (holding that the relief

sought by the plaintiff must serve to remedy the plaintiff's

alleged injury caused by the actions of the defendant). As

this Court expressly observed last Term, ordering the cessa-

tion of the improper government expenditure provides the

proper redress for taxpayers claiming harm to their interest

under the Establishment Clause: “an injunction against the

spending would of course redress that injury, regardless of

whether lawmakers would dispose of the savings in a way

that would benefit the taxpayer-plaintiffs personally.”

DaimlerChrysler, 126 S. Ct. at 1865 (citing Valley Forge,

454 U.S. at 514 (Stevens, J., dissenting)).

Accordingly, this Court has made clear that the ele-

ments of Article III standing are satisfied by an Establish-

ment Clause challenge to government expenditures of ap-

propriated funds.

C. Respondents Meet The Article III Standing Re-

quirements

Respondents claim that the government’s expenditures

of tax dollars for activities such as the sponsorship of confer-

ences that give preference to faith-based organizations vio-

14

late the Establishment Clause. See Pet. App. 73a, 76a, 80a.

Because this alleged misuse of funds directly causes a con-

crete injury to Respondents as taxpayers and can be reme-

died by the injunction that they are seeking, they have

standing to bring this claim. Respondents’ allegations de-

scribe the government’s use of federal tax funds to support

the establishment of religion. This “extract[ion] and

spen[ding] of ‘tax money’ in aid of religion,” DaimlerChrys-

ler, 126 S. Ct. at 1865, is a cognizable, direct injury to Re-

spondents.

Similarly, Respondents allege that the funds come from

dollars appropriated under the tax and spend power, Pet.

App. 73a, 76a, 80a, so the alleged misconduct has a “logical

nexus” to the plaintiffs’ status as taxpayers. See Flast, 392

U.S. at 102-103. Thus, the harm is “fairly traceable” to the

challenged conduct. See Lujan, 504 U.S. at 560.

Finally, Respondents seek, among other remedies, an

injunction to prevent expenditures of tax funds that violate

the Establishment Clause. Pet. App. 80a. As this Court

recognized in DaimlerChrysler, 126 S. Ct. at 1865, the impo-

sition of such an injunction would serve as a complete rem-

edy to the harm suffered by Respondents as taxpayers.

Il. FLAST PROVIDES AN ADMINISTRABLE RULE TO THE LOWER

COURTS .

Taxpayer standing in Establishment Clause cases is

rare. We have been able to identify fewer than two dozen

cases in the nearly four decades since Flast was decided in

which federal courts of appeals have granted plaintiffs

standing to bring Establishment Clause claims based solely

on their status as federal taxpayers. Taxpayer standing is

rare both because plaintiffs may allege other bases for

standing, see, e.g., Doe v. Beaumont Indep. Sch. Dist., 240

F.3d 462, 499 n.83 (5th Cir. 2001) (en banc) (Wiener, J., con-

curring in part and dissent’ng in part) (explaining that the

majority did not need to reach the issue of taxpayer standing

because it found another basis for standing); Grove v. Mead

Sch. Dist. No. 354, 753 F.2d 1528, 1532 (9th Cir. 1985) (not

reaching taxpayer standing because other plaintiffs had a

15

separate basis for standing), and because, as explained be-

low, courts have carefully stayed within Flast’s—and thus,

Article III’s—bounds.

A. Flast Has Not Opened The Floodgates Of Taxpayer

Litigation Because It Has Been Effectively Limited

To Establishment Clause Cases

For nearly forty years, this Court has recognized that

taxpayers have standing to challenge government expendi-

tures they claim violate the Establishment Clause. Recogni-

tion of that principle has not resulted in a flood of litigation

or an erosion of traditional standing doctrine. Indeed, Flast

provides a clear barrier to any expansion of standing to

those bringing suit based on hypothetical or conjectural

harms, because it requires federal taxpayers to show that

the challenged expenditures “exceed[] specific constitutional

limitations imposed upon the exercise of the congressional

taxing and spending power.” Fast, 392 U.S. at 102-103. As

discussed above, the Establishment Clause acts as just such

a limit. Jd. at 104.

We are unaware, however, of any other constitutional

provision that the courts of appeals have found to be a simi-

lar limit on the tax and spend power. This Court recognized

as much in DaimlerChrysler, noting that “only the Estab-

lishment Clause’ has supported federal taxpayer suits since

Flast.” 126 S. Ct. at 1864 (internal citations omitted). This

limitation provides a clear, bright-line rule for the lower

courts that allows for quick dismissals of cases involving

plaintiffs who do not allege direct injury of the sort suffered

in Establishment Clause cases. See Storino v. Borough of

Point Pleasant Beach, 322 F.3d 293, 298 n.2 (3d Cir. 2003)

(“At present, the only acknowledged exception to this rule

[prohibiting taxpayer standing] arises when a plaintiff chal-

lenges a government expenditure as violating the Estab-

lishment Clause.”); Troutman v. Shriver, 417 F.2d 171, 173

(5th Cir. 1969) (listing an Establishment Clause claim as one

of Flast’s requirements).

16

B. Courts Have Also Limited Standing In Establish-

ment Clause Cases To Those Federal Taxpayer

Plaintiffs Challenging Expenditures Appropriated

Pursuant To Congress’s Tax And Spend Power

1. Circuit courts have denied standing where

potential plaintiffs challenged conduct unre-

lated to Congress’s power to tax and spend

Flast provides another safeguard against widespread

reliance on taxpayer standing by requiring plaintiffs to chal-

lenge expenditures of funds appropriated pursuant to Con-

gress’s tax and spend power. Flast, 392 U.S. at 102. In

Kurtz v. Baker, 829 F.2d 1133 (D.C. Cir. 1987), for example,

the plaintiff sought to challenge the constitutionality of a

congressional guest chaplaincy program. The D.C. Circuit

determined that he lacked taxpayer standing because the

program operated under the rules of the ind’vidual houses of

Congress, rather than through the tax and spend power. /d.

at 1140. Similarly, in Langendorf v. Administrators of Tu-

lane Educational Fund, 528 F.2d 1076 (5th Cir. 1976), the

Fifth Circuit refused to grant taxpayer standing to plaintiffs

because the expenditures at issue—although made by a pub-

lic institution—were funded entirely by private donations

and therefore had no connection to the tax and spend power.

Id. at 1077.

Indeed, the lower courts have so rigorously applied this

requirement that in some Establishment Clause cases they

have erroneously rejected taxpayer standing even where

the challenged appropriations were authorized by Article I,

§ 8, simply because the expenditures were supported by

other congressional powers as well. Americans United for

Separation of Church & State v. Reagan, 786 F.2d 194, 199-

200 (3d Cir. 1986) (denying taxpayer standing to challenge

government funding of diplomatic relations with the Vatican

because the authorization for the expenditures were not

“found only in article I, section 8, clause 1”) (emphasis

added); see also Phelps v. Reagan, 812 F.2d 1293, 1294 (10th

Cir. 1987) (rejecting similar claim because the expenditures

were “not solely dependent upon the taxing and spending

clause”). But see Katcoff v. Marsh, 755 F .2d 223, 231 (2d Cir.

17

1985) (adopting the reasoning of the lower court, which al-

lowed taxpayers to challenge the constitutionality of the

Army’s chaplaincy program because the funds were author-

ized at least in part by the tax and spend power). These

overly restrictive cases, improperly denying standing to

plaintiffs who meet Flast’s requirements, clearly demon-

strate that the lower courts are not prone to lax, expansive

applications of Fast.

2. Standing to challenge Executive Branch ex-

penditures of funds appropriated pursuant to

the tax and spend power does not exceed

Flast’s limits

Flast’s requirement that plaintiffs challenge the use of

funds appropriated pursuant to Congress’s Article I, § 8

power does not, as this Court has recognized, preclude chal-

lenges to the Executive Branch’s expenditure of those funds.

See Kendrick, 487 U.S. at 619 (explaining that plaintiffs have

standing to challenge the Executive’s use of appropriated

funds); Flast, 392 U.S. at 86-87 (explaining that plaintiffs

were challenging specific expenditures made pursuant to a

broad appropriations statute). The lower courts have fol-

lowed this guidance. See American Jewish Congress v. Cor-

poration for Nat'l & Cmty. Servs., 399 F.3d 351, 355-56 (D.C.

Cir. 2005); Lamont v. Woods, 948 F.2d 825, 829-31 (2d Cir.

1991); Pulido v. Bennett, 860 F.2d 296, 297-298 (8th Cir.

1988) (stating that Kendrick “makes clear that federal tax-

payers do have standing to raise Establishment Clause chal-

lenges to executive administration of congressional spending

programs” and allowing a taxpayer to challenge expendi-

tures of appropriated funds by the Secretary of Health and

Human Services).

Although Petitioners assert that the Seventh Circuit in-

troduced conflict on this issue in the lower courts, see Pet.

23, we have been unable to identify a single circuit in which a

federal taxpayer is currently prohibited from bringing a

claim that the Executive’s authorized use of funds appropri-

18

ated pursuant to Article I, § 8 violated the Establishment

Clause.’ Petitioners point in particular to conflicts with the

D.C. and Second Circuits. Pet. 23-25. No such conflict ex-

ists.

Although the D.C. Circuit decided in American Jewish

Congress v. Vance, 575 F.2d 939 (D.C. Cir. 1978), that fed-

eral taxpayers could not bring Establishment Clause chal-

lenges to Executive action, that case was decided prior to

this Court’s decision in Kendrick. In American Jewish Con-

gress v. Corporation for National & Community Service,

399 F.3d 351 (D.C. Cir. 2005), the D.C. Circuit explicitly con-

cluded, in light of Kendrick, that the Flast rule encompassed

taxpayer Establishment Clause claims based on “the manner

in which the Executive Branch is administering” a tax-and-

spend statute. /d. at 355. Such a challenge satisfies Flast’s

“nexus” requirement because “[a] ‘claim that funds appro-

priated by Congress are being used improperly by individual

grantees’ is no less ‘a challenge to congressional taxing and

spending power simply because the funding authorized by

Congress has flowed through and been administered by’ an

executive official.” Jd. (quoting Kendrick, 487 U.S. at 619).

Similarly, the Second Circuit, in Lamont v. Woods, con-

cluded that federal taxpayers had standing to bring an Es-

tablishment Clause claim against specific grants made by the

Executive Branch from appropriated funds. 948 F.2d at 830.

’ The Third Circuit, in a case decided before Kendrick, noted that

this Court stated in Valley Forge that “Flast did not even reach Execu-

tive Branch actions.” Americans United for Separation of Church &

State, 786 F.2d at 200; see also Kirby v. HUD, 675 F.2d 60, 65 n.9 (3d Cir.

1982) (noting in dicta that plaintiffs would not have taxpayer standing to

bring a non-Establishment Clause claim in part because “Flast limits tax-

payer standing to challenges of exercises of congressional power and is

not applicable to the action of administrative agencies such as HUD which

are extensions of the Executive Branch”). Not only does Kendrick clearly

foreclose the Third Circuit’s reasoning, but that statement is merely dicta

in any event; the court concluded that the plaintiffs lacked standing be-

cause the funding was appropriated pursuant to the Necessary and

Proper Clause, rather than the tax and spend power. Americans United

for Separation of Church & State, 786 F 2d at 199.

19

In doing so, the court distinguished Jn re United States

Catholic Conference, 885 F.2d 1020 (2d Cir. 1989), a case that

Petitioners argue is in conflict with the Seventh Circuit’s

decision below. Pet. 24. Unlike the Lamont plaintiffs, the

federal taxpayers in Catholic Conference “claimed the

agency was acting ultra vires in its statutory authority.”

Lamont, 948 F.2d at 831; see also Catholic Conference, 885

F.2d at 1028 (“The complaint centers on an alleged decision

made solely by the Executive Branch that in plaintiffs’ view

directly contravenes Congress’ aim.”). Therefore, because

the Catholic Conference plaintiffs “did not impugn Con-

gress’s exercise of its taxing and spending powers, their

status as federal taxpayers was insufficiently linked to their

claim,” and the court concluded they lacked standing. /d.

The federal taxpayers in Lamont, by contrast, challenged

allegedly unconstitutional expenditures by the Executive

Branch that were “permitted, but . . . not mandate[d]” by the

appropriations statute. Lamont, 948 F.2d at 830 n.2. Thus

those plaintiffs “fit[] the traditional Flast model of taxpayer

standing.” Pet. Reply 9 n.4.

Although Catholic Conference appears to depart from

Flast, see Flast, 392 U.S. at 90, 109 (finding standing without

distinguishing between plaintiffs’ claims that the funds were

used improperly under the act and, in the alternative, that

the act was unconstitutional to the extent it permitted such

use), it turns on an issue not presented by the case before

the Court because the plaintiffs here have made no allega-

tion that the Executive’s use of appropriated funds contra-

vened congressional funding statutes. Where, as here, plain-

tiffs challenge Executive Branch expenditures that are con-

sistent with the appropriations statute, they have demon-

strated a nexus with the tax and spend power and thus have

standing to bring an Establishment Clause claim. Kendrick,

487 U.S. at 619-620; see also Lamont, 948 F.2d at 843.

Ill. SETTLED PRINCIPLES OF STARE DECISIS BAR OVERRULING

FLAST

Those seeking to overturn Flast bear a “heavy burden.”

Vasquez v. Hillery, 474 U.S. 254, 266 (1986). Stare decisis

20

“contributes to the integrity of our constitutional system of

government.” Jd. at 265. It “carries such persuasive force”

that this Court has “always required a departure from

precedent to be supported by some special justification.”

Dickerson v. United States, 530 U.S. 428, 443 (2000) (internal

quotation marks omitted). No such justification exists here.

This Court has looked to four factors to help guide its

decision about whether an earlier case should be overturned:

(1) whether the development of the law has left the original

decision “no more than a remnant of abandoned doctrine”;

(2) whether the understanding of the factual premise for the

earlier decision has so changed “as to have robbed the old

rule of significant application or justification”; (3) whether

the rule is unworkable; and (4) whether reversal would cause

harm to or inflict inequity on those who have relied on it.

Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833,

854-855 (1992). This assessment strongly supports uphold-

ing Fast.

“Intervening development of the law” is the “primary

reason” for this Court’s reversals. See Patterson v. McLean

Credit Union, 491 U.S. 164, 173 (1989). As explained above,

Flast was—and is—consistent with traditional principles of

standing, and it was reaffirmed by this Court as recently as

last Term. See DaimlerChrysler, 126 S. Ct. at 1861. Recent

standing cases cannot be said to have “removed or weakened

the conceptual underpinnings” from Flast or to have “ren-

dered [F last] irreconcilable with competing legal doctrines

or policies.” Patterson, 491 U.S. at 173; see also Mitchell v.

United States, 526 U.S. 314, 331-332 (1999) (Scalia, J., dis-

senting, noting that “wide acceptance in the legal culture”

would be an “adequate reason” not to overrule precedent).

See supra Parts I.A and I.B.

This Court has also overturned precedent when the fac-

tual premise underlying the older case has been found to be

invalid. See Casey, 505 U.S. at 864 (explaining that West

Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), and Brown

v. Board of Educ., 347 U.S. 483 (1954), were valid departures

from principles of stare decisis because “each rested on facts,

21

or an understanding of facts, changed from those which fur-

nished the claimed justifications for the earlier constitutional

resolutions”). But the factual basis for Flast remains valid

today. Indeed, when this Court reaffirmed Flast’s legal con-

clusion, it also reaffirmed the factual premise on which that

conclusion was based: the understanding that the Estab-

lishment Clause was designed to address the specific con-

cern “that the taxing and spending power would be used to

favor one religion over another or to support religion in gen-

eral.”” DaimlerChrysler, 126 S. Ct. at 1865 (quoting Flast,

392 U.S. at 103). Thus, Flast’s holding is not “somehow ir-

relevant or unjustifiable in dealing with the issue it ad-

dressed.” Casey, 505 U.S. at 855.

Nor has Flast “proven to be intolerable simply by defy-

ing practical workability.” See Casey, 505 U.S. at 854. As

discussed above, the lower courts have faced no particular

difficulty in assessing taxpayer standing questions in Estab-

lishment Clause cases, and “the required determinations fall

within judicial competence.” Jd. at 855. See supra Part

II.B.1. Flast provides a clear, administrable, and narrow

rule that recognizes the Establishment Clause’s unique yet

important role while guarding against widespread reliance

on taxpayer standing. It has presented no problems that

would support its overruling. Compare Swift & Co. v.

Wickham, 382 U.S. 111, 115-116 (1965) (finding an earlier

decision unworkable where this Court found its application

“as elusive as did the District Court”).

This Court has recognized that the reliance interests

that support stare decisis are not limited to cases involving

economic reliance. See Casey, 505 U.S. at 855-856. Indeed,

stare decisis is “even more critical in adjudication involving

constitutional liberties than in adjudication involving com-

mercial entitlements.” Payne v. Tennessee, 501 U.S. 808

852-853 (1991) (Marshall, J., dissenting). Individuals seeking

to challenge the will of the majority on constitutional

grounds—including those claiming that elected representa-

tives have used taxpayer funds to support the establishment

of religion—have a strong interest in ensuring that this

22

Court’s decisions do not shift with changes in popular senti-

ment. Mitchell v. W.T. Grant Co., 416 U.S. 600, 63€ (1974)

(Stewart, J., dissenting) (“A basic change in the law upon a

ground no firmer than a change in our membership invites

the popular misconception that this institution is little dif-

ferent from the two political branches of the Government.

No misconception could do more lasting injury to this Court

and to the system of law which it is our abiding mission to

serve.”); see also Casey, 505 U.S. at 868 (“The promise of

constancy, once given, binds its maker for as long as the

power to stand by the decision survives and the understand-

ing of the issue has not changed so fundamentally as to ren-

der the commitment obsolete.”).

Where, as here, Petitioners and supporting amici have

“offered no reason to believe that any . .. metamorphosis has

rendered the Court’s long commitment to [Flast] outdated,

ill-founded, unworkable, or otherwise legitimately vulner-

able to serious reconsideration,” Vasquez, 474 U.S. at 266,

there is no ground for overturning a precedent that has

withstood the test of almost forty years of consistent and

workable application.

CONCLUSION

For the foregoing reasons, amici respectfully request

that the decision of the United State Court of Appeals for

the Seventh Circuit be affirmed.

STEVEN R. SHAPIRO

DANIEL MACH

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, N.Y. 10004

(212) 549-2500

AYESHA N. KHAN

RICHARD B. KATSKEE

AMERICANS UNITED FOR

SEPARATION OF CHURCH

AND STATE

518 C Street, N.E.

Washington, D.C. 20002

(202) 466-3234

K. HOLLYN HOLLMAN

BAPTIST JOINT COMMITTEE

FOR RELIGIOUS LIBERTY

200 Maryland Avenue, N.F.

Washington, D.C. 20002-5797

(202) 544-4226

FEBRUARY 2007

23

Respectfully submitted.

ANNE HARKAVY

Counsel of Record

KELLEY BROOKE SNYDER

CAROLINE ROGUS

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 663-6000

JUDITH E. SCHAEFFER

PEOPLE FOR THE AMERICAN

WAY FOUNDATION

2000 M Street, N.W., Suite 400

Washington, D.C. 20036

(202) 467-4999

HOWARD W. GOLDSTEIN

STEVEN M. FREEMAN

STEVEN C. SHEINBERG

ANTI-DEFAMATION LEAGUE

605 Third Avenue

New York, N.Y. 10158-3560

(212) 885-7743