Freedom From Religion Foundation, Inc. v. LewFreedom From Religion Foundation, Inc. v. Lew
Judith A. Hagley, Erin Healy Gallagher, Tamara W. Ashford, Department of Justice, Washington, DC, Defendant-Appellant.
Kenneth Alan Klukowski, Family Research Council, Washington, DC, for Amicus Curiae Liberty Institute.
Kimberlee Wood Colby, Center for Law & Religious Freedom, Springfield, VA, for Amicus Curiae Evangelical Council for Financial Accountability.
Nathan Lewin, Lewin & Lewin, Washington, DC, for Amicus Curiae National
Laurence Arthur Hansen, Locke Lord LLP, Chicago, IL, for Amicus Curiae American Baptist Churches in the U.S.A.
Erik William Stanley, Alliance Defending Freedom, Scottsdale, AZ, for Amicus Curiae 624 Churches.
Michael W. Durham, Caplin & Drysdale, Washington, DC, for Amicus Curiae Diocese of Chicago and Mid-America of the Russian Orthodox Church Outside of Russia.
John Allen Eidsmoe, Foundation for Moral Law, Inc., Montgomery, AL, for Amicus Curiae Foundation for Moral Law Incorporated.
Nicholas James Little, Center for Inquiry, Washington, DC, for Amicus Curiae American Humanist Association.
Before FLAUM, ROVNER, and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge.
The Freedom from Religion Foundation and its two co-presidents (collectively “the”) filеd this suit to challenge the constitutionality of
We conclude that the plaintiffs lack standing to challenge
I. Background
The parsonage exemption, codified at
Freedom from Religion Foundation (FFRF) is a Wisconsin-based organization of atheists and agnostics. Annie Gaylor and Dan Barker, also plaintiffs in this case, are the co-presidents of FFRF; they receive a portion of their salаries from FFRF in the form of a housing allowance. Because Gaylor and Barker are not ministers, they paid income tax on this portion of their salaries. Neither taxpayer sought
In the district court, the government contended that the court was without jurisdiction to decide the case because the plaintiffs lacked standing. The plaintiffs conceded that they did not have standing to challenge
II. Discussion
The jurisdiction of federal courts is limited by
The “irreducible constitutional minimum of standing” requires the plaintiff to show that he has suffered (or is imminently threatened with) (1) a concrete and particularized “injury in fact” (2) that is fairly traceable to the challenged action of the defendant, and that is (3) likely to be redressed by a favorable judicial decision. Lujan, 504 U.S. at 560-61. Especially important here is the requirement that the plaintiff’s injury be “concrete and particularized,” meaning that “the injury must affect the plaintiff in a personal and individual way.” Id. at 560 n. 1. A “generally available grievance about government—claiming only harm to ... every citizen’s interest in proper application of the Constitution and laws” is not considered an “injury” for standing purposes. Id. at 573-74.
“The concept of a ‘concrete’ injury is particularly elusive in the Establishment Clause context ... because the Establishment Clause is primarily aimed at protecting noneconomic interests of a spiritual, as opposed to a physical or pecuniary, nature.” Vasquez v. Los Angeles Cnty., 487 F.3d 1246, 1250 (9th Cir. 2007) (citation omitted). It is clear, however, that a plaintiff cannot establish standing based solely on being offended by the government’s alleged violation of the Establishment Clause. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 485-86, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (concluding that plaintiffs lacked standing because they “fail[ed] to identify any personal injury suffered by them as a consequence of the alleged [violation of the Establishment Clause], other than the psychological consequence presumably
Although psychic injury alone is insufficient, there are a variety of ways for plaintiffs to demonstrate standing in Establishment Clause cases. For example, the Supreme Court has said that “plaintiffs may demonstrate standing based on the direct harm of what is claimed to be an establishment of religion, such as a mandatory prayer in a public school classroom.” Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 140, 131 S.Ct. 1436, 179 L.Ed.2d 523 (2011). Similarly, being exposed to religious symbols can constitute a direct harm. See Doe v. Cnty. of Montgomery, Ill., 41 F.3d 1156, 1159 (7th Cir. 1994). The plaintiffs here, however, cannot rely on the direct harm doctrine, because
Another way that plaintiffs in Establishment Clause cases often show standing is by relying on the special rule set forth in Flast v. Cohen, 392 U.S. 83, 88, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). As a general rule, standing to challenge the legality of a government expenditure “cannot be based on a plaintiff’s mere status as a taxpayer.” Winn, 131 S.Ct. at 1442. Such suits are typically foreclosed because the harm is too widely shared, the financial injury to any given taxpayer is too slight, and the possibility of rеdress is too speculative to support standing under traditional principles. Id. at 1442-45. In Flast, however, the Supreme Court created an exception to this general rule: “[A] taxpayer will have standing ... when he alleges that congressional action under the taxing and spending clause is in derogation of [the Establishment Clause].” Id. at 105-06. The Court, however, has since clarified the scope of Flast, holding that it only applies to taxpayer challenges involving specific government appropriations; Flast does not give taxpayers standing to challenge the constitutionality of tax credits or other “tax expenditures.” Winn, 131 S.Ct. at 1447; see id. at 1450 (Kagan, J., dissenting) (characterizing the majority’s holding as creating a “distinction in standing law between appropriations and tax expenditures”). As the parsonage exemption is a tax expenditure, plaintiffs cannot rely on the Flast exception to establish standing. See Staff of Joint Comm. on Taxation, 110th Cong., Estimates of Federal Tax Expenditures for Fiscal Years 2007-2011, at 32 (Comm. Print 2007) (identifying the parsonage exemption as a “tax expenditure”).
A third way for individuals to establish standing in аn Establishment Clause case, which plaintiffs rely on here, is to demonstrate that “they have incurred a cost or been denied a benefit on account of their religion. Those costs and benefits can result from alleged discrimination in the tax code, such as when the availability of a tax exemption is conditioned on religious affiliation.” Winn, 131 S.Ct. at 1440 (majority opinion). As an example, the Winn Court cited to its decision in Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 5-8, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989) (plurality opinion), which held that a general-interest secular magazine—which had paid sales taxes on its subscription sales under protest and later sued to rеcover those payments—had standing to challenge a Texas sales tax exemption for periodicals that were published by a religious faith and consisted “wholly of writings promulgating the teaching of the faith.” This approach does not rely on intangible psy-chic
The plaintiffs here argue that they have standing because they were denied a benefit (a tax exemption for their employer-provided housing allowance) that is conditioned on religious affiliation.2 This argument fails, however, for a simple reason: the plaintiffs were never denied the parsonage exemption because they never asked for it.3 Without a request, there can be no denial. And absent any personal denial of a benefit, the plaintiffs’ claim amounts to nothing more than a generalized grievance about
Though the Supreme Court has never squarely addressed the issue presented here, the Court’s precedent supports our conclusion. In Allen v. Wright, 468 U.S. 737, 745, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014), the plaintiffs sued the IRS for failing to deny tax-exempt status to racially discriminatory private schools. The plaintiffs, parents of African-American children attending public schools, attempted to show standing by arguing that they were “harmed directly by the mere fact of Government financial aid to discriminatory private schools.”4 Id. at 752. The Court found that they did not have standing. Id. at 766. Even if the plain-
tiffs’ asserted
The Allen Court pointed to its holding in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), as support for this conclusion. In that case, the Court determined that the plaintiff, an African-American, did not have standing to challenge a club’s racially discriminatory membership policies because he had never applied for membership, and therefore “was not injured by Moose Lodge’s membership policy.” Id. at 166-67. It apparently did not matter to the Court that such an application would have been futile because the club’s bylaws only allowed Cauсasians to become members. Futile or not, a request for membership was necessary to establish standing because, without it, no injury had occurred. In contrast, the Moose Lodge plaintiff did have standing to challenge the lodge’s refusal to serve him when he attended the club as a guest because, in that instance, he had requested and was denied a benefit. Id. at 165, 170.
Like the plaintiffs in Allen and Moose Lodge, the plaintiffs here are members of a group (in this case, the non-religious) that is allegedly suffering illegal discrimination. But the mere fact that discrimination is occurring is not enough to establish standing, absent being “personally denied equal treatment.” Allen, 468 U.S. at 755.5 Allowing members of discriminated-against groups who have not suffered a particularized injury to bring suit would not only be unconstitutional, it would also create practical difficulties by opening the door to constitutional challenges to any tax exemption that a given individual suspects he may not be entitled to—without first giving the IRS and the Tax Court the opportunity to determine the proper construction and appliсation of the law.
Plaintiffs, apparently recognizing the constitutional and practical problems of extending standing to anyone that is part of an allegedly discriminated-against group,
We reject this proposal for multiple reasons. First, it fails to address the heart of our standing inquiry here—whether plaintiffs have suffered a constitutionally cognizable injury. Being part of a small group that suffers no injury is no different from being part of a large group that suffers no injury; the size of the group makes no difference. See Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Norton, 422 F.3d 490, 496 (7th Cir. 2005). Second, there is, of course, a crucial difference, other than religious belief, between the plaintiffs and the ministers who take advantage of
The district court concluded that the plaintiffs in this case do have standing for a number of reasons, none of which we find persuasive. First, the district court wоrried that the government’s view might insulate
Second, the district court thought that it would “serve no legitimate purpose to require plaintiffs to claim the exemption and wait for the inevitable denial of the claim” because the “plaintiffs’ alleged injury is clear from the face of the statute and ... there is no plausible аrgument that the individual plaintiffs could qualify for an exemption.” Freedom From Religion Found., Inc. v. Lew, 983 F.Supp.2d 1051, 1055-56 (W.D. Wis. 2013). Requiring the plaintiffs to formally request the parsonage exemption, the district court said, would be a “waste” of “time,” and would be “unnecessary busy work.” Freedom from Religion Found., Inc. v. Lew, No. 11-cv-0626, at 8-9 (W.D. Wis. Aug. 29, 2012) (order denying defendants’ motion to dismiss). In support of this view, the district court cited a Fourth Circuit case, Finlator v. Powers, 902 F.2d 1158 (4th Cir. 1990), which rejected a standing argument similar to the one the government makes here. Finlator involved a North Carolina law exempting “Holy Bibles” from the state sales tax. Id. at 1159. The plaintiffs—purchasers of various secular and (non-Christian) sacred books that were taxed at the regular rate—sued the North Carolina Secretary of Revenue, contending that the law was unconstitutional. Id. The Secretary argued that the court lacked jurisdiction because the plaintiffs had not taken necessary “minimal steps to ensure their standing,” such as refusing to pay the tax or paying the tax under protest and subsequently contesting their liability. Id. at 1161.
The Fourth Circuit concluded that the plaintiffs had standing. The court based its holding largely on prudential grounds:
Rеalistically, if this court were to deny standing in this case, the appellants would simply protest the payment and collection of the State’s sales tax, and refile their suit. We do not believe that this additional requirement would ... contribute in any way to our ability to decide a question presented and contested by parties having a demonstrated interest and stake in its resolution.
Id. at 1162. The court also believed that “it would be an untenable waste of judicial resources to deny the [plaintiffs] standing in this case given thе patent unconstitutionality” of the challenged exemption. Id.
Insofar as the district court and the Fourth Circuit in Finlator suggest that asking for and being denied a tax exemption should not be a requirement for establishing standing because doing so would be a waste of time, we cannot agree. Perhaps these courts are correct that requiring the plaintiffs to request and be denied the parsonage exemption will be a “futile exercise,”6 Freedom from Religion Found., No. 11-cv-0626, at 8-9, that will not improve the court’s ability to resolve the constitutional challenge, but this is beside the point. The Constitution does not allow federal courts to hear suits filed by
The Finlator court, however, concluded that the plaintiffs in that case had standing for an аdditional reason: they “did suffer actual injury” because Bible purchasers automatically received a sales tax exemption, while purchasers of other texts could receive the exemption only by taking the extra step of protesting payment or filing a refund suit. 902 F.2d at 1162. “Simply stated,” the court said, “an injury is created by the very fact that the [government] imposes additional burdens on the [plaintiffs] not placed on purchasers of ‘Holy Bibles.’” Id. In the case before us, neither party explains how a taxpayer actually goes about “claiming” the parsonage exemption, and the plaintiffs do not argue that they face any additional burden in claiming the exemption that ministers do not.
Finally, the district court observed that the Supreme Court has frequently reached the merits in cases where a plaintiff challenged a tax exemption under the Establishment Clause, even when it was not clear that the plaintiff had been personally denied the exemption before filing suit. For example, in Walz v. Tax Commission of the City of New York, 397 U.S. 664, 666-67, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970), an ownеr of real estate challenged a New York property tax exemption for religious, educational, or charitable nonprofit organizations. Nothing in the Court’s opinion indicates that the plaintiff sought a property tax exemption prior to filing his suit which the Court rejected on the merits. Id. at 680. But the Walz Court never discussed standing. Thus, the case has no force in the standing context: “When a potential jurisdictional defect is neither noted nor discussed in a federal decision, the decision does not stand for the proposition that no defect existed.” Winn, 131 S.Ct. at 1448.
To summarize, plaintiffs do not have standing to challenge the constitutionality of the parsonage exemption. A person suffers no judicially cognizable injury merely because others receive a tax benefit that is conditioned on allegedly unconstitutional criteria, even if that person is otherwise “similarly situated” to those who do receive the benefit. Only a person that has been denied such a benefit can be deemed to have suffered a cognizable injury. The plaintiffs here have never been denied the parsonage exemption because they have never requested it; therefore, they have suffered no injury.
III. Conclusion
Because the plaintiffs do not have standing to challenge the parsonage exemption, we VACATE the judgment of the district court and REMAND with instructions to dismiss the complaint for want of jurisdiction.