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

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IN THE |

Supreme Court of the United States — :

OCTOBER TERM, 19>

No. 89-1242

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ABORTION RIGHTS MOBILIZAT

UN » STATES UA {

On Petition for a Writ of Certiorari to the United states

Court of Appeals for the -econd |

BRIEF OF RESPONDENTI>

UNITED STATES CATHOLIC CONFERENCE AND

NATIONAL CONFERENCE OF CATHOLIC BISHOP>

IN OPPOSITION TO THE PETITION

FOR A WRIT OF CERTIORARI

QUESTION PRESENTED

Do abortion-rights advocates, whose own tax status

is not at issue, have standing to challenge the tax

exemptions of over 30,000 Roman Catholic Church

entities?

TABLE OF CONTENTS

QUESTION PRESENTED

COUNTER-STATEMENT OF THE CASE

REASONS FOR DENYING THE PETITI!

I. THE COURT OF APPEALS’ DE‘

CORDS WITH THIS COURT'S |

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REJECTING THIRD-PARTY TAX

LENGES

THE COURT OF APPEALS’ D

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NOT CONFLICT WITH ANY

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THIS COURT OR OF AN

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TABLE OF AUTHORITIES—Continued

Page

Larson V. Valente, 456 U.S. 228 (1982)... 19, 20

Linda R.S. v. Richard D., 410 U.S. 614 (1973) 8,9

Lujan V. National Wildlife Fed’n, No. 89-640 (cert.

granted Jan. 16,1990) 0. 24

Lynch v. Donnelly, 465 U.S. 668 (1984) 19

Marsh v. Chambers, 463 U.S. 783 (1983) 20

McGowan V. Maryland, 366 U.S. 420 (1961) 20

Regan Vv. Taxation With Representation, 461 U.S.

OD CRN naseee atten ae aeol 23, 24

Schlesinger Vv. Reservists Committee to Stop the

War, 418 U.S. 208 (1974) 2000. eee 10, 13, 14

Shakman V. Dunne, 829 F.2d 1387 (7th Cir. 1987),

cert. denied, 484 U.S. 1065 (1988)... .s«éd2z“ 18

Simon v. Eastern Kentucky Welfare Rights Or-

ganization, 426 U.S. 26 (1976) 7, 9, 10, 22

Texas Monthly, Inc. v. Bullock, 109 S.Ct. 890

CRRA SPE Ore Se . .... I9, 23

Torcaso V. Watkins, 367 U.S. 488 (1961) _._. Setiaess 20

United States Vv. Richardson, 418 U.S. 166 (1974). 13,14

United States v. Saylor, 322 U.S. 385 (1944) 12

United States Catholic Conference v. Abortion

Rights Mobilization, Inc. 487 U.S. 72 (1988) 5, 23

Valley Forge Christian College v. Americans

['nited for Separation of Church and State, 454

U.S. 464 (1982) see ..10, 17, 18

Wallace Vv. Jaffree, 472 U.S. 38 (1985) 20

Warth v. Seldin, 422 U.S. 490 (1975) 2

Wiley v. Sinkler, 179 U.S. 58 (1900) 12

Winpisinger V. Watson, 628 F.2d 133 (D.C. Cir.).

cert. denied, 466 U.S. 929 (1980) 14, 15

Wright Vv. Regan, 656 F.2d 820 (D.C. Cir. 1981),

rev'd, 468 U.S. 737 (1984) 7, 24

CONSTITUTIONAL PROVISIONS

U.S. Const., Art. I, § 6, cl. 2 13, 14

U.S. Const., Art. I, § 9, cl. 7 13

STATUTES AND REGULATIONS

26 U.S.C. § 501(c) (3) 7. 11, 16

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-1242

ABORTION RIGHTS MOBILIZATION, INC., et al.,

Petitioners,

Vv.

UNITED STATES CATHOLIC CONFERENCE, ef a/.,

respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF OF RESPONDENTS

UNITED STATES CATHOLIC CONFERENCE AND

NATIONAL CONFERENCE OF CATHOLIC BISHOPS

IN OPPOSITION TO THE PETITION

FOR A WRIT OF CERTIORARI

COUNTER-STATEMENT OF THE CASE

Petitioners’ statement of the case omits tw

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3

the purported ground that some or all of its over

30,000 separate entities have engaged in impermis-

sible political activities. Amended Complaint (Am.

Compl.’’) © 60.‘ The affected Church entities, all of

which are covered by an annual group exemption

letter, include not only respondents USCC, NCCB,

but also virtually every Catholic diocese, parish, ele-

mentary and high school, college, seminary, hospital,

home for the aged or infirm, orphanage, counseling

center, monastery, retreat house, and refugee assist-

ance group in the country.’ Petitioners’ complaint

also seeks ar. order requiring the IRS to assess and

collect all resulting back taxes, and to notify the

Church's contributors that they may not claim char-

itable tax deductions for their contributions. /hid.

The petitioners allege no IRS enforcement actions,

or threatened enforcement actions, against them-

selves personally or against their churches or organi-

zations. Nor do they seek tax refunds or any change

in their tax status. Their amended complaint alleges

only, “fu]pon information and _ belief, [that]

oman Catholic priests and other Church officia's

have actively and systematically participated in polit-

ical campaigns in all parts of the country... .° Am.

Compl. © 25. It further alleges, again “/u]pon in-

formation and belief,” that ‘‘[m]any Catholic priests

and other Church officials . have, from their pul-

pits, regularly and repeatedly urged their congre-

gants to donate to ‘right-to-life’ committees and po-

‘See Joint Appendix in No. 87-416 (“JA”), at pages 5-19

5 The group ruling, which is issued to the USC! ver

entities listed in The Official Catholic Direct

more than 185 dioceses, 19,546 parishes, 7.455 elementam

schools, 1.408 high schools, 238 colleges, 645 hospita "

numerous other Catholic entities. See JA at 24-2

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4

litical parties, to obtain (often in the church park-

ing lot following the service) ‘right-to-life’ campaign

literature, to sign the nominating petitions of ‘right-

to-life’ candidates. At least one church has distrib-

uted ‘right-to-life’ leaflets with the ehurch bulletin.”

Id. £ 26. Petitioners allege that a policy statement

adopted by the NCCB in 1975, the Pastoral Plan for

Pro-life Activities,’ is the “blueprint for the Church's

illegal activities.” Id. { 21.’

Pursuant to this complaint, petitioners served sub-

poenas duces tecum on USCC/NCCB, demanding the

production of voluminous internal Church documents

relating to the Church’s position on abortion and to

its communications with the IRS. The subpoenas de-

manded, among other things: (1) all drafts of the

1975 Pastoral Plan, which states the U.S. bishops’

theological, mora! and social position on abortion, (2)

the minutes of the bishops’ discussions of the Pas-

toral Plan’s proposed contents, and all documents re-

lating to its implementation; (3) all “Church Bulle-

tins, clergy Bulletins, Pastoral letters, directives,

memoranda, or similar documents issued or promul-

gated by any” bishop in the United States to any

other person concerning the Pastoral Plan; (4) all

documents reflecting contact with any candidates for

public office anywhere in the United States; (5) all

documents reflecting financial support or “involve-

ment” of USCC/NCCB, “or any staie Catholic con-

ference, archdiocese, diocese, or parish church,” or

any “church personnel” (defined to include every em-

*The language in the 1975 Pastoral Plan of which the

petitioners complain was amended in 1985.

7USCC/NCCB, of course, concede neither the truth of the

factual allegations of the complaint nor the validity of the

legal conclusions.

5

ployee of each of those organizations), with twelve

national and state pro-life organizations; (6) USCC/

NCCB’s tax or information returns and, “without

limitation, all correspondence, memoranda or other

communications relating to the consideration or ap-

proval by the Internal Revenue Service” of any ap-

plication for section 501(c)(3) status; and (7) the

identities of the presidents and executive secretaries

of the Catholic conferences in sixteen states, and the

identities of the bishops and directors of pro-life ac-

tivities in eighteen dicceses for the years 1975 to

the present. See Joint Appendix in No. 87-416, at

pages 70-71.

USCC/NCCB declined to comply with those sub-

poenas, asserting, inter alia, that petitioners lacked

standing to sue and the district court therefore

lacked judicial power to issue and enforce subpoenas.

The district court held that the petitioners had stand-

ing to sue and held USCC NCCB in contempt, fin-

ing them a total of $100,000 per day for each day the

subpoenaed documents were not produced. The fines

were stayed pending appeal.

The court of appeals initially affirmed the con-

tempt judgment without resolving USCC/NCCB’s

challenge to the petitioners’ standing. The court held

that USCC/NCCB, as witnesses, lacked standing to

challenge the plaintiffs’ standing. In re United

States Catholic Conference, 824 F.2d 156 (2d Cir.

1987). This Court reversed and remanded, directing

the court of appeals to determine whether the plain-

tiffs had standine to challenge the Church’s tax ex-

emption. United States Catholic Conference y. Ahbor-

tion Rights Mobilization, Inc., 487 U.S. 72 (1988).

On remand, the court of appeals held that the peti-

tioners lacked standing to sue, vacated the contempt

6

judgment against USCC/NCCB, and ordered that the

complaint be dismissed. Pet. App. la.

Petitioners moved for rehearing, alleging that the

court of appeals’ decision created an intra-circuit con-

flict with Fulani, supra. The panel rejected that con-

tention and denied rehearing in a unanimous, per

curiam opinion. Pet. App. 85a-86a. The Court later

denied rehearing ev banc. That order, which is

omitted from petitioners’ appendix, notes that no

judge requested a vote on petitioners’ suggestion.

A copy of the order is included as an appendix to this

brief. The present petition followed.

REASONS FOR DENYING THE PETITION

I. THE COURT OF APPEALS’ DECISION ACCORDS

WITH THIS COURT’S DECISIONS REJECTING

THIRD-PARTY TAX CHALLENGES.

Lawsuits challenging the tax status of others “are

rarely if ever appropriate for federal-court adjudica-

tion.” Allen v. Wright, 468 U.S. 737, 760 (1984).

That is so for two reasons. First, private plaintiffs

are seldom, if ever, able to claim a direct injury

based on the government’s alleged failure to enforce

the tax code against another. Second, judicial in-

quiries into the tax status of third parties (in this

case, 30,000 of them), accompanied by all the dis-

covery devices of civil litigation, would disrupt the

elaborate statutory framework established by Con-

gress for enforcing the tax code. That framework

includes authorization for declaratory judgment ac-

tions determining an organization’s eligibility for a

tax-exemption under section 501(c) (3), but such an

action “may be filed... only by the organization the

qualification or classification of which is at issue.”

26 U.S.C. § 7428(b) (1) (emphasis added); see also

28 U.S.C. § 2201(a).

7

The petitioners ignore the two decisions by this

Court that are most relevant to their petition—the

two cases in which the Court has considered, and de-

nied, standing to challenge another entity’s tax ex-

empt status, Allen v. Wright, supra, and Simon v.

Eastern Kentucky Welfare Rights Organization, 426

U.S. 26 (1976). Together, those cases establish that

“ litigation concerning tax liability is a matter be-

tween taxpayer and IRS, with the door barely ajar

for third party challenges.’ ” Allen, 468 U.S. at 748-

49, quoting 656 F.2d 824, 828 (D.C. Cir. 1981).

In Simon, which petitioners fail to cite, various

indigent persons challenged a revenue ruling that a

non-profit hospital could qualify for recognition as a

charitable organization under § 501(c)(3), even

though it provided only emergency room services to

those unable to afford hcspitalization. This Court

acknowledged the plaintiffs’ interest in obtaining hos-

pital services, and even acknowledged that some

plaintiffs had been injured by the hospitals in ques-

tion. Jd. at 40-41. Nevertheless, the Court held that

these facts were insufficient to establish a case or con-

troversy with the Treasury. It was “purely specula-

tive,” the Court explained, whether the alleged denial

of medical services to indigents “fairly can be traced

to [the IRS’s action] or instead result from decisions

made by the hospitals without regard to the tax im-

plications.” 426 U.S. at 42-43. “|E]qually specula-

tive” was the question whether a judgment against

the IRS would cause the hospitals to provide more

free services or instead to forego their tax exemp-

tions. /d. at 43. Thus, the plaintiffs failed “ ‘to estab-

lish that, in fact, the asserted injury was the conse-

quence of the defendants’ actions, or that prospective

8

relief [would] remove the harm.’” Id. at 45, quot-

ing Warth v. Seldin, 422 U.S. 490, 505 (1975).

In Allen, which the petitioners cite only for the

general proposition that separation of powers prin-

ciples underlie the standing requirements, this Court

held that parents of black public school children

lacked standing to challenge the lawfulness of the

IRS’s grant of tax exempt status to allegedly dis-

criminatory private schools. The plaintiffs in Allen

claimed that they had standing because the govern-

ment’s administration of the tax laws “diminished

[their childrens’] ability to receive an education in

a racially integrated school.” 468 U.S. at 756. The

Court recognized the “serious” nature of that injury,

and “the constitutional importance of curing”’’ it, but

held that the injury could not support standing be-

cause it was “not fairly traceable to” the challenged

granting of tax exemptions. /d. at 756-57. It was

“entirely speculative,” the Court explained, “whether

withdrawal of a tax exemption from any particular

school would lead the school to change its policies.”

Id. at 758. It was “just as speculative whether

any given parent would decide to transfer [his or

her] child to publie school” as a result of the school’s

loss of its tax-exempt status. Jbid. And it was “pure

speculation” whether a sufficiently large number of

“ich decisions would be made in order to have a

“significant impact on the racial composition of the

public schools.” Jbid.*

® This Court has likewise denied standing, outside of the tax

context, to private individuals seeking to challenge govern-

ment decisions not to prosecute a third party. In Linda R:S.

Vv. Richard D., 410 U.S. 614 (1973), the court denied standing

to a woman who wished to challenge the nonprosecution of

her child’s father for failure to pay child support. It was

9

The plaintiffs in Allen also alleged that they were

denigrated ‘“‘by the mere fact of Government financial

aid to discriminatory private schools.” Jd. at 752.

This Court rejected the notion that standing could

be predicated upon such a generalized claim of

stigma. It held that ‘“[t]here can be no doubt that

this sort of noneconomic injury is one of the most

serious consequences of discriminatory government

action and is sufficient in some circumstances to sup-

port standing . . . .Our cases make clear, however,

that such injury accords a basis for standing only to

those persons who are personally denied equal treat-

ment by the challenged discriminatory conduct.” Jd.

at 755 (emphasis added, internal quotations, cita-

tions omitted).

The court of appeals in this case correctly held

that petitioners had ‘“‘not pleaded that they were per-

sonally denied equal treatment,” and that they had

failed to claim any “particularized injury in fact.”

Pet. 24a. Consequently, it never reached the question

whether petitioners’ alleged injuries were fairly

traceable to the IRS or redressable by a judgment

against the IRS. Pet. App. 26a. It is plain, however,

that petitioners’ claim of injury fails on these

grounds as well.

Petitioners claim that their political effectiveness

has been impaired by what they allege to be the

Church’s subsidized political activity. But here, as

in Simon and Allen, ‘“‘{slpeculative inferences are

necessary to connect [petitioner’s alleged] injury to

the challenged actions of [the IRS].” Simon, 426

“only speculative,” Justice Marshall wrote for the Court, that

such prosecution would result in the payment of support.

Id. at 618. And “in American jurisprudence at least, a pri-

vate citizen lacks a judicially cognizable interest in the prose-

cution or nonprosecution of another.” Jd. at 619.

10

U.S. at 45. It is speculative whether, or to what ex-

tent, the Church’s donors would reduce their contri-

butions if the Church’s tax exemption were revoked.

As plaintiffs themselves allege, contributions to the

Church are “religiously-compelled,”” Am. Compl. § 26,

and therefore may not be responsive to tax pressure.

It is equally speculative whether the Church would

decide to stop the religiously motivated activities that

are under attack, such as “distribut[ing] ‘right-to-

life’ leaflets with . . . church bulletin[s],” id. § 46,

and whether, even if it did, its members would not

feel an obligation to fill the void. Finally, it is specu-

lative in the extreme whether all of the foregoing

would lead to fewer pro-life votes.”

In short, it is true here, as it was in Allen and

Simon, that

[flrom the perspective of the IRS, the [plain-

tiffs’ claimed] injury . .. is highly indirect and

“results from the independent action of some

third party not before the court... .”

Allen, 468 U.S. at 757, quoting Simon, 426 U.S. at

42.

® Petitioners have effectively conceded as much, arguing that

it is “irrelevant ... whether the Church will continue to be

active politically or if its members will increase their dona-

tions” in the event of a judgment in petitioners’ favor. See Re-

spondents’ Brief in Opposition in No. 87-416, at 54. But if a

judgment against the IRS would not alter the alleged political

activities of the Church and its contributors, then the peti-

tioners would gain nothing other than the psychological pleas-

ure of knowing that the Church has lost something—its tax

exemption. And as this Court has made clear, such vindictive

pleasure alone is insufficient to support standing. Allen, 468

U.S. at 754; Valley Forge Christian College v. Americans

United fer Separation of Church and State, 454 U.S. 464,

482-87 (1982); Schlesinger v. Reservists Committee to Stop

the War, 418 U.S. 208, 217, 226-27 (1974).

11

Of course, the fact that the Church entities whose

alleged political activities have allegedly injured the

plaintiffs, and whose tax status is at issue, are “not

before the court,” ibid., ensures that a judgment in

the plaintiffs’ favor would accomplish virtually noth-

ing. Because the Church entities are not parties,

they would not be bound by any judgment. They

would be entitled to litigate their tax-exempt status

de novo in a separate declaratory judgment action

under 26 U.S.C. § 7428. That fact only underscores

the inappropriateness of allowing this case to go

forward.

In short, there is nothing surprising or noteworthy

about the court of appeals’ decision in this case. In

fact, a contrary decision would have worked a minor

revolution in the law.”

II. THE COURT OF APPEALS’ DECISION DOES NOT

CONFLICT WITH ANY DECISION OF THIS COURT

OR OF ANY OTHER COURT OF APPEALS.

In an attempt to find something about the court of

appeals’ decision to warrant this Court’s attention,

10 The lower courts also have been nearly unanimous in

rejecting third-party challenges to tax exemptions. See Khalaf

v. Regan, 85-1 U.S. Tax Cas. (CCH) {9269 (D.D.C. 1985),

aff'd, No. 83-02963 (D.C. Cir. Sept. 19, 1986) (unpublished

opinion) (individuals and non-exernpt political advocacy

groups lack standing to claim that tax-exempt status accorded

to Jewish organizations disadvantaged them in pursuit of their

political objectives) ; American Society of Travel Agents, Inc.

v. Blumenthal, 566 F.2d 145 (D.C. Cir. 1977), cert. denied, 435

U.S. 947 (1978) (travel agents lack standing to challenge the

tax exempt status of the American Jewish Congress for

engaging in competitive business activity allegedly prohibited

by §501(c)(3)). The sole exception is another opinion of

the Second Circuit that the panel in the present case unani-

mously held did not conflict with its opinion. See supra, at 2,

infra at 20-22 & n.17.

12

petitioners argue that the decision conflicts with

standing decisions of this Court in cases having noth-

ing to do with third-party tax challenges. None of

the petitioners’ supposed “conflicts” withstands

scrutiny.

A. Baker vy. Carr

The lower court’s decision plainly does not con-

flict with Baker v. Carr, 369 U.S. 186 (1962). Un-

like the plaintiffs there, petitioners here do not allege

any diminution in their representation. Nor do they

allege gerrymandering, ballot-box-stuffing, outright

denial of their right to vote, or anything else that

dilutes the strength of their votes."' Petitioners have

thus suffered no injury to their right to vote, and the

court of appeals correctly held “that Baker v. Carr

and its progeny are inapposite and provide no basis

for granting standing to these plaintiffs.” Pet. App.

21a.

As the court of appeals recognized. the petitioners

here do not actually rest their claim of standing upon

their status as voters. Rather, they claim standing

as “political participants” or “competitive advocates,”’

whose effectiveness has allegedly been impaired by a

“distortion in the political process.” As the petition-

ers see it, the content—or, more precisely, the balance

—of the political debate has been tilted by the govern-

ment’s alleged failure to revoke the Catholic Church’s

tax exemption. This claim of “distortion in the politi-

cal process” is a far cry from the direct impairment

of the right to vote that supported the plaintiffs’

"Cf, Davis v. Bandemer, 478 U.S. 109 (1986); Karcher

Vv. Daggett, 462 U.S. 725 (1983) ; Wiley v. Sinkler, 179 U.S. 58

(1900) ; United States v. Saylor, 322 U.S. 385 (1944).

13

standing in Baker v. Carr and its progeny. And no

decision of this Court provides the slightest support

for such a standing claim. To the contrary, this

Court has rejected comparable claims of standing,

based on alleged distortions of political processes, in

Schlesinger v. Reservists Committee to Stop the War,

418 U.S. 208 (1974), and United States v. Richard-

son, 418 U.S. 166 (1974).

In Schlesinger, a group of self-described “citizens”

complained that allowing Armed Forces Reserve

members to sit in Congress violated the Incompatibil-

ity Clause of the Constitution, which states that “no

Person holding any Office under the United States,

shall be a Member of either House during his Con-

tinuance in Office.” U.S. Const., Art. I, $6, cl. 2.

The alleged injury was a distortion of the political

process in the form of “undue influence by the Execu-

tive Branch” on Reservist Members of Congress. 418

U.S. at 212. That allegation, the Court held, although

concededly a matter in which citizens have “an inter-

est,” was “too abstract to constitute a ‘case or con-

troversy’ appropriate for judicial resolution.” Jd. at

226-27.

In Richardson, the Court denied standing to a tax-

payer who wished to challenge a provision of the

Central Intelligence Agency Act of 1949 that per-

mitted the Agency’s budget to be kept secret. The

plaintiff in Richardson argued that such secrecy vio-

lated Art. I, § 9, cl. 7 of the Constitution, which pro-

vides in part, that ‘a regular Statement and Account

of the Receipts and Expenditures of all public Money

shall be published from time to time.” The plaintiff’s

alleged injury was a distortion of the political process

—he claimed that “without detailed information on

CIA expenditures ... he [could] not . . . properly

14

fulfill his obligations as a member of the electorate

in voting for candidates seeking national office.” 418

U.S. at 176. This Court held that alleged impairment

insufficient to confer standing.”* The “distortion in

the political process” that petitioners allege here is no

less amorphous than the alleged distortions found in-

sufficient in Schlesinger and Richardson.

The court of appeals’ decision also agrees with

those of other courts of appeals. In Winpisinger v.

Watson, 628 F.2d 133 (D.C. Cir.), cert. denied, 446

U.S. 929 (1980), the United States Court of Appeals

for the District of Columbia Circuit held that sup-

porters-of Senator Edward Kennedy for the Demo-

cratic presidential nomination lacked standing to

claim that members of President Carter’s administra-

tion had illegally spent federal funds to promote the

2 Ex parte Levitt, 302 U.S. 633 (1937), is to the same

effect. In that case, a citizen and member of this Court’s bar

sought to challenge the President’s appointment and the Sen-

ate’s confirmation of Justice Black as a violation of Art. I,

§ 6, cl. 2 of the Constitution, which provides that “[n]o Sena-

tor or Representative shail, during the Time for which he was

elected, be appointed to any civil Office under the Authority

of the United States, which shall have been created, or the

Emoluments whereof shall have been increased during such

time....” Seating a constitutionally ineligible Justice on this

Court would quite arguably “distort” the judicial process.

Nevertheless, this Court unanimously denied Mr. Levitt’s mo-

tion for a writ of quo warranto, and held that it ‘tis an estab-

lished principle that to entitle a priv-te individual to invoke

the judicial power to determine the validity of executive or

legislative action he must show that he has sustained, or is

immediately in danger of sustaining, a direct injury as the

result of that action and it is not sufficient that he has merely

a general interest common to all members of the public.”” 302

U.S. at 634. See also Richardson, 418 U.S. at 177-78 (sum-

marizing Levitt).

15

President’s renomination. The plaintiffs’ alleged harm

was “the dilution of their efforts on Senator Ken-

nedy’s behalf by the actions of the federal defendants

in utilizing the vast resources available to the Ad-

ministration to promote President Carter’s quest for

renomination.” Jd. at 138. The Court held that there

was no fairly traceable causal connection between the

claimed injury and the challenged conduct. It ex-

plained that

[t]he endless number of diverse factors poten-

tially contributing to the outcome of state presi-

dential primary elections, caucuses and conven-

tions forecloses any reliable conclusion that voter

support of a candidate is “fairly traceable” to any

particular event. In the case before us, whether

[a plaintiff] is viewed in the character of a

voter, contributor, a noncontributing supporter

or a candidate for a delegate post, a court would

have to accept a number of very speculative in-

ferences and assumptions in any endeavor to

connect his alleged injury with activities attrib-

uted to [the defendants]. Courts are powerless

to confer standing when the causal link is too

tenuous.

Id. at 139.

Likewise, in Shakman v. Dunne, 829 F.2d 1387

(7th Cir. 1987), cert. denied, 484 U.S. 1065 (1988),

the Seventh Circuit denied standing to candidates and

voters challenging the politically motivated hiring of

government employees in Chicago. Like the petition-

ers here, the plaintiffs there alleged that the challenged

action “created . . . inequality in the treatment of

communication,” “giving the appellants a significant

advantage in the process of communicating with the

16

electorate.” Jd. at 1396. The Seventh Circuit rejected

that claim as an insufficient basis for standing. Id.

at 1397.

The court of appeals in this case thus broke no new

ground when it held that the “distortion” of the po-

litical process alleged by the petitioners is insufficient

to give them standing.

B. Establishment Clause Cases

Petitioners claim that the court of appeals’ decision

conflicts generally ‘‘with this Court’s definition of in-

jury in Establishment Clause cases.” Pet. 28. It

does no such thing.”*

Under the Establishment Clause, petitioners say,

the “injury is the discrimination itself.” Pet. 29.

But that is nearly identical to the claim expressly

rejected by this Court in Allen. There, the plaintiffs

claimed that the “mere fact of Government financial

aid to discriminatory private schools” caused a

“stigmatizing injury.” 468 U.S. at 752, 755. This

Court rejected that claim, and held that “such injury

accords a basis for standing only to those persons who

are personally denied equal treatment by the chal-

13 Petitioners also include in their question presented the

issue whether they have standing as taxpayers. But they do

not elaborate on that claim in their petition itself. The court

of appeals’ decision that they lack such standing, Pet. App.

17a-19a, is both eminently correct and thoroughly unremark-

able. Unlike the plaintiffs in Bowen v. Kendrick, 487 U.S. 589

(1988), plaintiffs here do not challenge § 501(c) (3), or any

other statute, either on its face or as applied. Instead, they

argue that §501(c) (3) is being violated, and they seek to

enforce it privately.

17

lenged discriminatory conduct.” Jd. at 755 (emphasis

added, interna! quotations and citation omitted) .™

The same standard applies with equal force under

the Establishment Clause. In Valley Forge Christian

College v. Americans United for Separation of Church

and State, 454 U.S. 464 (1982), the Court denied

standing to individual citizens who wished to chal-

lenge the government’s conveyance of surplus federal

property to a religious college. The Court explicitly

rejected the notion “that enforcement of the Estab-

lishment Clause demands special exceptions from the

requirement that a plaintiff allege ‘distinct and

palpable injury to himself’? ... that is likely to be

redressed if the requested relief is granted.” 454

U.S. at 488 (citations omitted). Thus, the Court em-

phasized that a claimed “spiritual stake” in the gov-

ernment’s alleged preference for a particular religion

cannot support standing unless the plaintiffs can

show that they were “ ‘directly affected by the laws

and practices against which their complaints are di-

rected.’”? 454 U.S. at 486-87 n.22, quoting Abington

School District v. Schempp, 374 U.S. 203, 224 n.9

(1963) (emphasis added).

The schoolchildren in Schempp were “directly af-

fected” by the schools’ Bible-reading programs be-

cause they “‘were subject to unwelcome religious ex-

ercises or were forced to assume special burdens to

14 The suggestion of stigma or denigration in this case (see

note 15, infra), pales by comparison to the comparable allega-

tion rejected in Allen. The plaintiffs in Allen complained of

racial discrimination, which historically has carried with it an

undeniable mark of perceived inferiority. The allegation of

stigma in Allen, while too generalized to support standing, was

nonetheless genuine. By contrast, the suggestion of “denigra-

tion” here is baseless.

18

avoid them.” 454 U.S. at 487 n.22. By contrast, the

plaintiffs in Valley Forge lacked standing because

they

failfed] to identify any personal injury suffered

by them as a consequence of the alleged consti-

tutional error, other than the psychological con-

sequence presumably produced by observation of

conduct with which one disagrees. That is not

an iniury sufficient to confer standing under

Art. III, even though the disagreement is phrased

in constitutional terms.

454 U.S. at 485-86 (emphasis in original). The court

of appeals here correctly determined that the peti-

tioners’ complaint suffers from the same fatal defect.

Petitioners have not been “personally denied equal

treatment,” Allen, 468 U.S. at 755, nor have they

been “directly affected by the . . . practices against

which their complaints are directed.” Valley Forge,

454 U.S. at 486-87 n.22. Their claim of standing

rests ultimately on their assumption—unsupported

by any alleged facts—that the government would

treat them differently from the Catholic Church if

they behaved as they say the Catholic Church has.

Such speculation, however, cannot provide a basis for

standing.”

‘5 Petitioners’ statement that they are “not ... seeking

standing as ‘clergy qua clergy’ with all the negative implica-

tions” of that argument (Pet. at 32 n.10), is somewhat mysti-

fying. That has always been their claim in the past. For

example, in their previous brief on the merits in this Court,

petitioners insisted that the clergy plaintiffs suffered injury

“in the daily practice of [their] ministries, in their ability to

gain public acceptance of their religious beliefs and to minister

to their congregations’ particular needs ... .” U.S. Catholic

19

Nor does the court of appeals’ opinion conflict with

any of the other cases cited by petitioners. Although

this Court did not address any question of standing

in County of Allegheny v. A.C.L.U. Greater Pitts-

burgh Chapter, 109 S.Ct. 3086 (1989), or Lynch vy.

Donnelly, 465 U.S. 668 (1984), the records in those

cases make clear that they were predicated upon

municipal taxpayer standing, not upon the nebulous

theory offered by the petitioners here. See Joint Ap-

pendix in No. 87-2050, Amended Complaint "{ 2-9,

16, 23; Joint Appendix in No. 82-1256, Amended

Complaint %{1, 4-7, 14. Texas Monthly, Inc. v.

Bullock, 109 S.Ct. 890 (1989), was a challenge,

under the Press and Establishment Clauses, to a stat-

utory tax exemption enjoyed only by religious periodi-

cals. It was brought by a secular newspaper in the

context of its own demand for a tax refund. Id. at

895. And Larson v. Valente, 456 U.S. 228 (1982),

Conference V. Abortion Rights Mobilization, Inc., No. 87-416,

Brief for Respondents at 75. And in their initial filing with

the court of appeals, they quoted with approval from the

district court’s description of the alleged injury they suffer:

The clergy plaintiffs have devoted their lives to religious

communities and beliefs that are denigrated by govern-

ment favoritism to a different theology. They provide

spiritual leadership to and care for the spiritual needs

of their congregations. As part of these duties, they must

counsel those in their care in accordance with religious

laws which command consideration of abortion as the

morally required response to pregnancy.

Abortion Rights Mobilization, Inc. v. Baker, No. 85-3056 (2d

Cir.), Respondents’ Brief at 37.

If petitioners are now abandoning their claim of “clergy

standing,” it is unclear on what basis they do seek standing

under the Establishment Clause.

20

was a suit brought by a religious denomination that

was required by statute to file certain fundraising

reports from which other religions were statutorily

exempted. Here, both petitioners and respondents

are equally subject to the terms of § 501(c)(3) and

to all related regulations. None of the petitioners

seeks a tax refund or any change in tax status. And

just as the government has taken no enforcement ac-

tion against USCC /NCCB, neither has it taken any

against any of the petitioners.”

In short, not only does the court of appeals’ deci-

sion not conflict with this Court’s Establishment

Clause precedents, it is squarely in their mainstream.

© All of the Court’s other Establishment Clause cases have

likewise been predicated either on taxpayer standing or some

other sort of direct injury. See, e.g., Jimmy Swaggart Min-

istries V. Bd. of Equalization, 110 S.Ct. 688 (1990) (sales tax

levied against religious organization) ; Heryandez v. Commis-

sioner, 109 S.Ct. 21386 (1989) (taxpayers denied deduction

for payments for church services) ; Corporation of Presiding

Bishop v. Amos, 483 U.S. 327 (1987) (employee allegedly

victimized by religious discrimination) ; Estate of Thornton

Vv. Caldor, Inc., 472 U.S. 703 (1985) (employer required by

statute to grant employees Sabbath leave) ; Wallace v. Jaffree,

472 U.S. 38 (1985) (children subjected to religious exercise) ;

Marsh v. Chambers, 463 U.S. 783 (1983) (legislator subjected

to legislative Chaplain’s prayers) ; Larkin v. Grendel's Den,

Inc., 459 U.S. 116 (1982) (restaurant denied liquor license) ;

Epperson V. Arkansas, 393 U.S. 97 (1968) (public school

teacher forbidden to teach evolution) ; Abington School Dist.

v. Schempp, 374 U.S. 203 (1963) (schoolchildren subjected to

Bible reading) ; Engel v. Vitale, 370 U.S. 421 (1962) (school-

children subjected to prayer); Torcaso v. Watkins, 367 U.S.

488 (1961) (candidate for office required to affirm faith in

God); McGowan v. Maryland, 366 U.S. 420 (1961) (retail

clerks convicted of doing business on Sunday).

21

Ill. THERE IS NO INTRA-CIRCUIT SPLIT IN THE

SECOND CIRCUIT.

Petitioners insist that there is a conflict within the

Second Circuit that warrants this Court’s attention.

They claim—incorrectly—that the present case is ir-

reconcilable with Fulani v. League of Women Voters

Educ. Fund, 882 F.2d 621 (2d Cir. 1989). Of

course, the place to resolve an intra-circuit split is in

the Circuit itself, not in this Court. See Davis v.

United States, 417 U.S. 333, 340 (1974). Recogniz-

ing that fact, the petitioners sought rehearing in the

court of appeals on this ground, but even the dissent-

ing judge on the panel found no conflict. See Pet.

App. 85a-86a.""

17In Fulani, a divided panel of the court of appeals held

that an independent presidential candidate, Dr. Laura B.

Fulani, had standing to challenge the tax exempt status of

the League of Women Voters, which had left her out of its

nationally televised candidate debates leading up to the Demo-

cratic and Republican presidential nominations. 882 F.2d at

623. Nevertheless, the court affirmed the district court’s dis-

missal of the complaint for failure to state a claim. The Sec-

ond Circuit’s rvling on standing was explicitly rejected in a

substantially identical suit brought by Dr. Fulani in the Dis-

trict Court for the District of Columbia. Fulani v. Brady,

727 F. Supp. 158 (D.D.C. 1990), notice of appeal filed (Feb. 27,

1990). Whichever of the two Fulani decisions is correct, the

cases are distinguishable from this case. In Fulani, at least,

one of the defendants, the League of Women Voters, had in

fact treated the plaintiff differently from other candidates. It

had denied her the opportunity to participate in its debates.

Here, by contrast, there has been no unequal treatment of any

of the plaintiffs by any of the defendants. Moreover, in Fulani,

the requirements of 11 C.F.R. §§ 1.10.13, 114.4(e) (1988), that

the League maintain its tax-exempt status in order to sponsor

candidate debates, at least arguably supplied the elements of

“traceability” and “redressability” necessary for standing—

22

IV. THE COURT OF APPEALS’ OPINION IS NARROW

AND FACT-BOUND.

Petitioners mistakenly suggest that the court of

appeals’ opinion is an expansive one. It is not. In

fact, the court of appeals was careful to stress the

narrowness of its holding: “[w]e do not foreclose

the possibility that political competitors might state

a cognizable injury; instead, we simply hold that the

theory cannot be sustained here.” Pet. App. 26a.

The court explained that its decision adhered closely

to “the pleaded facts and established law, and [did]

not venture out any further” than was necessary. /d.

In short, the court’s opinion is both narrow and fact-

bound.

What is more, the facts to which the court’s opinion

is bound are extreme. Petitioners are not candidates,

or even supporters of candidates for any particular

office, much less in any particular election. None of

the petitioners is a disappointed applicant for a tax

exemption of its own. None is the target of IRS en-

forcement activities. And none seeks a tax refund.

The court of appeals deliberately decided only that

these plaintiffs, on this complaint, do not have stand-

ing. It did not decide whether any of the above

permutations would make a difference to its decision,

and it certainly did not rule on any of the fanciful

hypotheticals posited by petitioners’ amici.’*

if the League lost its tax exemption, it could not sponsor a

candidate debate. Here, as in Simon and Allen, it is entirely

speculative whether the conduct of the Catholic Church and

its contributors would change in any way, much less in a way

agreeable to petitioners, in the wake of a revocation of the

Church’s tax-exempt status.

18 Additional abortion-rights groups have filed an amicus

brief supporting the petitioners. Only a few of amici’s argu-

23

CONCLUSION

The court of appeals’ decision does not conflict with

any decision of this Court or of any court of appeals.

Instead, the court of appeals simply applied this

Court’s precedents to a narrow set of facts and left

ments warrant a response. First, amici recite a litany of

hypothetical horribles in which the IRS purposefully permits

tax-exempt organizations to support candidates advocating all

sorts of causes—from legalizing racial segregation to outlaw-

ing traditional religions. Brief Amicus Curiae of Population

Planning Associates, Inc. (“Br. Am. Cur.”), at 6. As noted

above, the short answer to all those hypotheticals is that the

court of appeals expressly refused to decide that political com-

petitors would never have standing. It thus left many ques-

tions—including all of amici’s hypotheticals—for another day.

Second, it is simply inaccurate to say, as amici do, that

this Court “expressly acknowledged” in its prior opinion in

this case that the petitioners’ standing “‘is at least ‘colorable.’ ”

Br. Am. Cur. at 15. What the Court said—in the fourth sen-

tence of its opinion—is that the court of appeals in its prior

opinion ruled “that a non-party witness’ jurisdictional chal-

lenge is limited to a claim that the District Court lacks even

colorable jurisdiction, a standard not met here.” 487 U.S. at

74 (emphasis added). Quite obviously, the Court was simply

describing the court of appeals’ ruling, not offering its own

assessment of the plaintiffs’ standing.

Third, amici announce that “in some respects, the standing

of the plaintiffs in this case follows a fortiori from the stand-

ing of the plaintiffs” in Arkansas Writers’ Project, Inc. v.

Ragland, 481 U.S. 221 (1987). Br. Am. Cur. at 10. Hardly.

In Ragiand, the plaintiff raised its constitutional challenge to

other publications’ tax exemptions in the context of its own

claim to an exemption and its own suit for a tax refund. See

481 U.S. at 225. The plaintiffs in Ragland could plausibly allege

that they had been treated differently by the government by

being denied the exemptions granted to the others. See also

Texas Monthly, supra; Regan v. Taxation With Representa-

24

the state of the law exactly as it found it—“ ‘sug-

gest[ing] that litigation concerning tax liability is

a matter between taxpayer and IRS, with the door

barely ajar for third party challenges.’” Allen, 468

U.S. at 748-49, quoting 656 F.2d 820, 828 (D.C. Cir.

1981). Cf. Pet. App. 26a. Accordingly, the petition

should be denied.

tion, 461 U.S. 540 (1983). Here, no petitioner has been denied

any exemption and none seeks any refund.

Fourth, amici mistakenly suggest that Lujan v. National

Wildlife Fed’n, No. 89-640, which is currently set for oral

argument on April 16, 1990, is somehow relevant to this

case. Br. Am. Cur. at 20. As amici concede, however, “Lujan

arises in the context of environmental litigation and is in

other respects dissimilar from this case.” Ibid. Lujan arises

under the Administrative Procedure Act, under which pru-

dential standing limitations play far less of a role. See Clarke

v. Securities Industry Ass’n, 479 U.S. 388, 400 n.16 (1987).

Here, however, they could well play an important role, see

Allen, 468 U.S. at 751, and the court of appeals expressly left

those prudential standing questions open. Pet. App. 26a. In

addition, the governmental actions challenged in Lujan are

formal decisions, published in the Federal Register, opening

public lands to private mining interests. They are, in short,

the classic sort of decisions reviewable under the APA. The

only question in Lujan is whether the particular plaintiffs in

that case are the proper parties to invoke judicial review.

Here, there is no governmental action at all, merely an absence

of enforcement, against petitioners or respondents. In con-

trast to the garden-variety challenge to administrative acts at

issue in Lujan, the question in this case is one that is “rarely

if ever appropriate for federal-court adjudication.” Allen,

468 U.S. at 760.

* Counsel of Record

April 6, 1990

25

Respectfully submitted,

KEVIN T. BAINE *

RICHARD S. HOFFMAN

CHARLES H. WILSON

KEVIN J. HASSON

WILLIAMS & CONNOLLY

839 17th Street, N.W.

Washington, D.C. 20006

(202) 331-5000

MARK E. CHOPKO

General Counsel

PHILLIP H. HARRIS

Solicitor

UNITED STATES CATHOLIC

CONFERENCE

3211 4th Street, N.E.

Washington, D.C. 20017

(202) 541-3000

Counsel for Respondents

United States Catholic

Conference and

National Conference of

Catholic Bishops

APPENDIX

eA

la

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United

States Courthouse in the City of New York, on the

thirteenth day of November one thousand nine hun-

dred and eighty-nine.

Docket No. 86-6092

IN RE: UNITED STATES CATHOLIC CONFERENCE and

NATIONAL CUNFERENCE OF CATHOLIC BISHOPS,

Appellants,

ABORTION RIGHTS MOBILIZATION INC., LAWRENCE

LADER, MARGARET QO. STRAHL, M.D., HELEN W.

EpEY, M.D., RuTH P. SMITH, NATIONAL WOMENS

HEALTH NETWORK, INC., LONG ISLAND NATIONAL

ORGANIZATION FOR WOMEN-NASSAU, INC., RABBI

ISRAEL MARGOLIES, REVEREND BFA BLAIR, RABBI

BALFOUR BRICKNER, REVEREND ROBERT HARE,

REVEREND MARVIN G. LUTZ, WOMENS CENTER FOR

REPRODUCTIVE HEALTH, JENNIE ROSE _ LIFRIERI,

EILEEN WALSH, PATRICIA SULLIVAN LUCIANO,

MARCELLA MICHALSKI, CHRIS NIEBRZYDOWSKI,

JUDITH A. SEIBEL, KAREN DECROW and SUAN

SHERER,

Plaintiffs-A ppellees,

eV,

JAMES A. BAKER, III, Secretary of the Treasury, and

RoOscoE L. EGGER, JR., Commissioner of Internal

Revenue,

Defendants.

2a

A petition for rehearing [having been] filed herein

by counsel for the plaintiffs-appellees, ABOI.TION

RIGHTS MOBILIZATION INC., ET AL., and the

panel that heard the appeal having denied said peti-

tion for rehearing in an opinion filed on October 4,

1989,

It is further noted that the suggestion for rehear-

ing in banc has been transmitted to the judges of the

court in regular active service and to any other judge

that heard the appeal and that no such judge has

requested that a vote be taken thereon.

ELAINE B. GOLDSMITH

Clerk

By /s/ Tina Eve Brier

TINA EVE BRIER

Chief Deputy Clerk