Lead Opinion
Four Indiana taxpayers, Anthony Hinrichs, Henry Gerner, Lynette Herold and Francis White Quigley, brought this action against the Speaker of the House of Representatives of the Indiana General Assembly, challenging the House’s practice of opening each session with a prayer. The district court agreed with the plaintiffs that the practice of legislative prayer as implemented by the House violated the Establishment Clause and issued a permanent injunction. The Speaker timely appealed and sought a stay of the district court’s ruling pending full briefing before this court. We denied the stay but noted that our decision was based only on a preliminary understanding of the facts surrounding Indiana’s practice. See Hinrichs v. Bosma,
I
BACKGROUND
A. Facts
Indiana’s legislative authority is vested in the Indiana General Assembly, which is composed of the Senate and the House of Representatives. The House of Represen
House Rule 10.2 calls for a prayer or invocation to be given each meeting day before the House conducts any business. For the 188 years prior to the time the plaintiffs instituted this action, the Indiana House of Representatives opened each day with an invocation. The invocation occurs immediately after the Speaker’s call to order. No legislative business takes place until the prayer is finished, and no one is required to remain in the House chamber during the prayer.
The invocation frequently is delivered by visiting clergy who have volunteered to pray and are nominated by a representative. On occasion, representatives have sponsored clergy who do not share their own religious affiliation. To nominate a member of the clergy, a representative fills out a “Minister of the Day” form setting forth the dates when the clergy member is available. The representative then submits the form to the Majority Caucus Chair, who schedules the cleric to deliver the invocation. No minister who has requested sponsorship ever has been turned down.
Prior to the date on which the visiting clergy member is to offer the invocation, a House staff member sends a letter setting forth the logistical details of the visit. The letter also states:
The invocation is to be a short prayer asking for guidance and help in the matters that come before the members. We ask that you strive for an ecumenical prayer as our members, staff and constituents come from different faith backgrounds. Thank you for your consideration.
R.16, Att. 2. No further guidance is provided and no review of the content of the prayer is conducted prior to its being given; typically, the Speaker does not know the identity of the minister until a few minutes prior to his or her introduction.
When a visiting clergy member has not been designated to give the prayer for a legislative session, a representative has given the invocation. On such an occasion, the representative does not receive guidance from anyone associated with the House concerning the form or content of the prayer. No one associated with the House ever has advised, corrected or admonished a minister or representative about the religious content of an invocation.
During the 2005 House session, the invocation was delivered by priests, Protestant ministers, several representatives, a rabbi and an imam. Of the forty-five prayers offered during this session for which text is available, twenty-nine prayers referenced “Jesus” or “Christ”; others invoked “God,” “Lord,” “Almighty God,” or “Heavenly Father.” Id. Att. 6 at 3, 7 (prayers of January 10 and 13, 2005 and February 17, 2005). At least one prayer was not ad
Several prayers were overtly Christian in content. For instance, one visiting cleric quoted several verses from a book of the New Testament as part of his prayer, see id. at 8 (prayer of February 28, 2005); still others referred to the “saving power of Jesus Christ,” id. at 13 (prayer of March 28, 2005), to “our lord and savior Jesus Christ,” id. at 14 (prayer of April 5, 2005), or to Jesus Christ as the son of God, id. at 16 (prayer of April 11, 2005). Many of these references were limited to the doxology at the end of the prayer. There also were invocations given that were not tied to any specific faith or denomination. For instance, the prayer offered on April 14, 2005, referenced Buddha, the Zen masters, a philosopher and a story from the Bible. See id. at 16-17. Still others invoked only “God” or “Lord” and simply requested wisdom for the Assembly or blessings for the State. See, e.g., id. at 18 (prayer of April 19, 2005); id. at 14 (prayer of March 31, 2005). Some prayers were offered as the personal prayer of the clergy member, see, e.g., id. at 14-15 (prayer of April 5, 2005); others purported to be offered on behalf of those assembled, see, e.g., id. at 17 (prayer of April 18, 2005).
Although minimal, there were costs associated with the practice of offering the invocation. The initial letter sent to clergy cost $.54 per mailing. Before a session commenced, the House members sometimes took photographs with the clergy scheduled to give the invocation. These photographs cost $.68 per print and were mailed at a cost of $1.60 per print. A thank-you letter sometimes was sent to visiting clergy, also at a cost of $.54 per mailing. Additionally, the sessions of the Indiana House are broadcast on the Internet at a cost of $112.85 per hour, or $1.88 per minute; each prayer, whether offered by a member of the clergy or by a representative, lasted a few minutes. All funds used to cover these costs came from the general budget; no funds were appropriated specifically to cover these expenses.
B. District Court Proceedings
On May 31, 2005, four Indiana taxpayers, Anthony Hinrichs, Henry Gerner, Lynette Herold and Francis White Quigley, brought this action for declaratory and injunctive relief challenging the existing practice of the Indiana House of Representatives to allow sectarian prayers to be given prior to each legislative session. The Speaker of the House of Representatives of the Indiana General Assembly was named as the defendant. In the complaint, the plaintiffs stated that they did not object to the practice of legislative prayer, but claimed that the practice of the Indiana House of Representatives violated the First Amendment because it allowed overtly sectarian prayers to be offered. The Speaker answered the complaint and, among other matters, asserted lack of standing.
On October 28, 2005, the district court conducted a trial on stipulated facts and written submissions of the parties. On November 30, 2005, the district court entered a final order declaring the Speaker’s practice of allowing sectarian prayer to be violative of the Establishment Clause and permanently enjoining the Speaker from “permitting sectarian prayers to be offered as part of the official proceedings of the House of Representatives.” R.31 at 1.
In this case the House’s prayer practice is indeed paid for by taxpayer funds, through confirmation and thank-you letters and photographs sent to clergy, and additional web-streaming time. Though these costs are not directly attributable to the content of the invocations, they are directly attributable to the practice of legislative prayer that plaintiffs challenge. Because the plaintiffs are Indiana taxpayers who have proven “a measurable appropriation or disbursement of [public] funds occasioned solely by the activities complained of,” Doremus [v. Board of Education], 342 U.S. [429,] 434,72 S.Ct. 394 ,96 L.Ed. 475 [(1952)], all four plaintiffs have standing under Article III to challenge the constitutionality of the official legislative prayers.
R.30 at 24. The district court then turned to the question of the constitutionality of the House’s “Minister of the Day” program. It summarized its findings of fact and conclusions of law accordingly:
[T]he evidence shows that the official prayers offered to open sessions of the Indiana House of Representatives repeatedly and consistently advance the beliefs that define the Christian religion: the resurrection and divinity of Jesus of Nazareth. The Establishment Clause “means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions). ‘The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.’ ” County of Allegheny v. American Civil Liberties Union,492 U.S. 573 , 605,109 S.Ct. 3086 ,106 L.Ed.2d 472 (1989), quoting Larson v. Valente,456 U.S. 228 , 244,102 S.Ct. 1673 ,72 L.Ed.2d 33 (1982). The sectarian content of the substantial majority of official prayers in the Indiana House therefore takes the prayers outside the safe harbor the Supreme Court recognized for inclusive, non-sectarian legislative prayers in Marsh v. Chambers,463 U.S. 783 ,103 S.Ct. 3330 ,77 L.Ed.2d 1019 (1983). Plaintiffs have standing as Indiana taxpayers to bring their claims, and they are entitled to declaratory and injunctive relief. This relief will not prohibit the House from opening its session with prayers if it chooses to do so, but will require that any official prayers be inclusive and non-sectarian, and not advance one particular religion.
R.30 at 2.
After the court’s injunction issued, the Speaker filed a motion pursuant to Federal Rule of Civil Procedure 59(e). The Speaker claimed that the court’s injunction “manifest[ed] clear legal error because it exceeded] the Court’s jurisdiction in taxpayer-standing cases” and “because it [wa]s overly broad and d[id] not conform to the conduct challenged or the relief
On December 28, 2005, the court issued an order denying the Speaker’s Rule 59 motion.
To describe the alternatives is to answer the question. The taxpayer plaintiffs have standing because of the public expenditures, but the law authorizes the court to order an end to the unconstitutional practice. The injury that gives the taxpayer-plaintiffs standing is the misuse of the public funds into which they pay their taxes.
In taxpayer standing cases, the injury to the plaintiff may be remedied by enjoining the expenditure of public funds, but may also be remedied by enjoining the unconstitutional practice, especially where the constitutional issues do not depend on the expenditure of public funds.
Id. at 3-4 (citations omitted).
The district court then turned to the Speaker’s challenges to the terms of the injunction. The district court disagreed with the Speaker that the injunction should have been limited to opening prayers:
The plaintiffs challenged the House’s practice of official prayers conducted under House Rule 10, which calls for a prayer after the Speaker calls the House to order and before the Pledge of Allegiance. As noted, plaintiffs showed that the practice of inviting clergy or House members to offer the prayer has produced a pattern of sectarian and exclusionary Christian prayers. If the court had limited the injunction to prayers offered pursuant to House Rule 10 as it currently exists, the injunction would not have affected, for example, an amended rule that would switch the order of the Pledge of Allegiance and the prayer, or a practice of sectarian prayer at the end of each session instead of the beginning.
Id. at 7-8.
Finally, the district court addressed the Speaker’s contention that “the injunction is too vague to give him fair notice of what he is required to do to comply with it.” Id. at 9. Although the district court believed that the “injunction here [wa]s sufficiently specific,” it nevertheless answered some of the Speaker’s questions “because of the larger public interests at stake.” Id. at 10. The court explained that “[t]he injunction is not limited to sectarian Christian prayers”; this simply was the focus of the court’s decision because “the evidence here shows a pattern of Christian prayer.” Id. at 12. The court also elaborated on what would constitute prayers that “are sectarian in the Christian tradition,” specifically those that “proclaim or otherwise communicate the beliefs that Jesus of Nazareth was the Christ, the Messiah, the Son of God, or the Savior, or that he was resurrected, or that he will return on Judgment Day or is otherwise divine.” Id. at 16. With that clarification, the court
The Speaker timely appealed to this court.
II
DISCUSSION
Before we turn to the substantive claims, we first must address the “threshold jurisdictional question” of whether the plaintiffs possess the requisite standing to pursue this action. Steel Co. v. Citizens for a Better Env’t,
When we first approached this issue on the Speaker’s motion to stay, we noted that, in order to establish taxpayer standing — the only basis for standing asserted here
In light of Hein, the Speaker reasserts that the plaintiffs lack standing here. According to the Speaker, the Supreme Court made clear in DaimlerChrysler Corp. v. Cuno, — U.S. -,
Upon consideration of the Court’s disposition in Hein, and the parties’ supplemental arguments, we believe that Hein requires us to revisit our preliminary determination that the plaintiffs possess the requisite standing to maintain this action. In order to explain our determination, a more plenary discussion of taxpayer standing, especially taxpayer standing to challenge alleged Establishment Clause violations, is in order.
A. Taxpayer Standing Prior to Flast v. Cohen
Our discussion must begin with the Supreme Court’s initial pronouncements on taxpayer standing set forth in Frothingham v. Mellon, decided with Massachusetts v. Mellon,
We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a jus-ticiable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy.... The party who invokes the power must be able to show, not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally. If a case for preventive relief be presented the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding. Here the parties plaintiff have no such case. Looking through forms of words to the substance of their complaint, it is merely that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent. To do so would be, not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess.
Id. at 488-89,
In articulating the rationale for denying standing to federal taxpayers, the Court
The interest of a taxpayer of a municipality in the application of its moneys is direct and immediate and the remedy by injunction to prevent their misuse is not inappropriate.... The reasons which support the extension of the equitable remedy to a single taxpayer in such cases are based upon the peculiar relation of the corporate taxpayer to the corporation, which is not without some resemblance to that subsisting between stockholder and private corporation.
Id. at 486-87,
The Court next addressed taxpayer standing in Doremus. There, state taxpayers challenged a New Jersey statute requiring the recitation of five verses of the Old Testament at the beginning of each school day; the activity was not “supported by any separate tax or paid for from any particular appropriation,” nor did “it add[ ] any sum whatever to the cost of conducting school.” Doremus,
In deciding whether the taxpayers could pursue their challenge, the Court first reiterated its statements from prior cases that “the interests of a [federal taxpayer] in the moneys of the federal treasury are too indeterminable, remote, uncertain and indirect to furnish a basis for an appeal to the preventive powers of the Court over their manner of expenditure.” Id. at 433,
B. Flast v. Cohen
In Flast, the Court considered whether there were any exceptions to the bar against taxpayer standing erected in Frothingham. Specifically, the Court had to decide “whether the Frothingham barrier should be lowered when a taxpayer attacks a federal statute on the ground that it violates the Establishment and Free Exercise Clauses of the First Amendment.” Id. at 85,
In addressing the standing issue, the Court first turned to its holding in Frothingham. In that case, the Court recounted, it had
noted that a federal taxpayer’s “interest in the moneys of the treasury ... is comparatively minute and indeterminable” and that “the effect upon future*593 taxation, of any payment out of the (Treasury’s) funds, ... (is) remote, fluctuating and uncertain.” As a result, the Court ruled that the taxpayer had failed to allege the type of “direct injury” necessary to confer standing.
Id. at 92,
The Court, however, did not turn immediately to the concept of standing, but first examined the limitations placed on federal courts by the case or controversy requirement of Article III. Justiciability, the Court explained, was not merely prudential, but firmly rooted in Article III:
[T]he implicit policies embodied in Article III, and not history alone, impose the rule against advisory opinions on federal courts. When the federal judicial power is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III.
Id. at 96,
The Court also noted that, as “an aspect of justiciability,” “standing is surrounded by the same complexities and vagaries that inhere in justiciability.” Id. at 98,
some meaningful form can be given to the jurisdictional limitations placed on federal court power by the concept of standing.
The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The “gist of the question of standing” is whether the party seeking relief has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.”
Id. at 99,
Thus, in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary con*594 text and in a form historically viewed as capable of judicial resolution. It is for that reason that the emphasis in standing problems is on whether the party invoking federal court jurisdiction has “a personal stake in the outcome of the controversy,” and whether the dispute touches upon “the legal relations of parties having adverse legal interests.”
Id. at 101,
This requirement did not eliminate the possibility that a federal taxpayer may have “the requisite personal stake in the outcome” of a particular case necessary to establish standing. Flast,
The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. This requirement is consistent with the limitation imposed upon state-taxpayer standing in federal courts in Doremus v. Board of Education,342 U.S. 429 ,72 S.Ct. 394 ,96 L.Ed. 475 (1952). Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. When both nexuses are established, the litigant will have shown a taxpayer’s stake in the outcome of the controversy and will be a proper and appropriate party to invoke a federal court’s jurisdiction.
Id. at 102-03,
Turning then to the specific plaintiffs in the case, the Court held that each nexus had been established. With respect to the first nexus, the taxpayers’ challenge was made to an exercise of Congress’ taxing and spending power under Article I, Section 8 of the United States Constitution. With respect to the second nexus, the Court noted that the taxpayers alleged that the challenged expenditures violated the Establishment Clause, which operated as a specific limitation on Congress’ spending power: “Our history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general.” Id. at 103,
The Court then summarized its holding accordingly:
[W]e hold that a taxpayer will have standing consistent with Article III to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power. The taxpayer’s allegation in such cases would be that his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power. Such an injury is appropriate for judicial re*595 dress, and the taxpayer has established the necessary nexus between his status and the nature of the allegedly unconstitutional action to support his claim of standing to secure judicial review. Under such circumstances, we feel confident that the questions will be framed with the necessary specificity, that the issues will be contested with the necessary adverseness and that the litigation will be pursued with the necessary vigor to assure that the constitutional challenge will be made in a form traditionally thought to be capable of judicial resolution.
Id. at 105-06,
C. Standing Cases after Flast
Over the next few years, litigants tested Flasfs boundaries by attempting to use taxpayer standing to challenge different kinds of federal governmental actions. For instance, in Valley Forge Christian College v. Americans United for Separation of Church and State,
The Court has been equally unwilling to see Flast as a means of extending state taxpayer standing. As noted above, the Court previously had suggested in Doremus that the limitations on federal taxpayer standing were equally applicable to state taxpayers challenging state actions.
In its opinion, the Court noted that it was asked to decide “an important question of constitutional law concerning the Commerce Clause.” Id. at 1861. Before it turned to that question, however, it had to determine whether the “plaintiffs, as the parties now asserting federal jurisdiction, [had] carried] the burden of establishing their standing under Article III.” Id. (internal citations omitted).
In addressing the standing issue, the Court reviewed the roots of its taxpayer standing jurisprudence in Frothingham:
In rejecting a claim that improper federal appropriations would “increase the burden of future taxation and thereby take [the plaintiffs] property without due process of law,” the Court observed that a federal taxpayer’s “interest in the moneys of the Treasury ... is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.”
Id. at 1862 (quoting Frothingham,
In that case, we noted our earlier holdings that “the interests of a taxpayer in the moneys of the federal treasury are too indeterminable, remote, uncertain and indirect” to support standing to challenge “their manner of expenditure.” We then “reiterate[d]” what we had said in rejecting a federal taxpayer challenge to a federal statute “as equally true when a state Act is assailed: ‘The [taxpayer] must be able to show ... that he has sustained ... some direct injury ... and not merely that he suffers in some indefinite way in common with people generally.’ ”
Id. (quoting Doremus,
Indeed, the Court noted that failure to extend the bar against general taxpayer standing to state taxpayers challenging appropriations made by state statutes could raise serious federalism issues:
Federal courts may not assume a particular exercise of this state fiscal discretion in establishing standing; a party seeking federal jurisdiction cannot rely on such “[s]peculative inferences ... to connect [his] injury to the challenged actions of [the defendant],” Simon [v. Eastern Kentucky Welfare Rights Org.], 426 U.S. [26, 45,96 S.Ct. 1917 ,48 L.Ed.2d 450 (1976)].... Indeed, because state budgets frequently contain an array of tax and spending provisions, any number of which may be challenged on a variety of bases, affording state taxpayers standing to press such challenges simply because their tax burden gives them an interest in the state treasury would interpose the federal courts as “ ‘virtually continuing monitors of the wisdom and soundness’ ” of state fiscal administration, contrary to the more modest role Article III envisions for federal courts. See [Allen v. Wright,468 U.S. 737 , 760-61,104 S.Ct. 3315 ,82 L.Ed.2d 556 (1984)] (quoting Laird v. Tatum,408 U.S. 1 , 15,92 S.Ct. 2318 ,33 L.Ed.2d 154 (1972)).
Cuno,
Thus, the Court concluded, “we hold that state taxpayers have no standing under Article III to challenge state tax or
D. Hein v. Freedom from Religion Foundation
It is against this jurisprudential framework that we must view the Supreme Court’s decision in Hein and consider its application to the present case. In Hein, federal taxpayers challenged part of the President’s Faith Based and Community Initiatives program as violative of the First Amendment’s Establishment Clause. The plaintiffs maintained that they possessed taxpayer standing to challenge the program because funds from the federal treasury, specifically “general Executive Branch appropriations,” Hein,
The difference, then, between this case on the one hand and Flast and [Bowen v.] Kendrick[,487 U.S. 589 ,108 S.Ct. 2562 ,101 L.Ed.2d 520 (1988),] on the other is that the expenditures in those cases were pursuant to specific congressional grant programs, while in this case, there is no statutory program, just the general “program” of appropriating some money to executive-branch departments without strings attached. The difference cannot be controlling.
Freedom from Religion Found., Inc. v. Chao,
Respondents do not challenge any specific congressional action or appropriation; nor do they ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional. That is because the expenditures at issue here were not made pursuant to any Act of Congress. Rather, Congress provided general appropriations to the Executive Branch to fund its day-to-day activities. These appropriations did not expressly authorize, direct, or even mention the expenditures of which respondents complain. Those expenditures resulted from executive discretion, not congressional action.
Id. at 2566 (footnote omitted). Consequently, the plurality concluded that “this case falls outside the ‘narrow exception’ that Flast ‘created to the general rule against taxpayer standing established in Frothingham.’ ” Id. at 2568 (quoting Kendrick,
E. Application
We believe that there are several guiding principles to take away from the cases we just have discussed. First, the general rule, articulated first in Frothingham, and reiterated most recently in Hein, is that federal taxpayers may not lodge constitutional challenges against congressional appropriations. The exception to the general rule set forth in Frothingham is a narrow one: Indeed, the exception only applies when the taxpayer has established a “logical link between [his taxpayer] status and the type of legislative enactment attacked” as well as “a nexus between that status and the precise nature of the constitutional infringement alleged.” Flast,
In the present case, the plaintiffs are challenging the practice of legislative prayer as implemented by the Indiana House of Representatives. It is clear from the parties’ stipulations that Indiana’s practice consists of a “Minister of the Day” program that involves the offering of a prayer by a member of the clergy with representatives filling in to offer the invocation only when “no cleric [is] present.” R.16 at 3. The program, as it is presently administered, is not mandated by statute. The origin of the practice is House Rule 10.2, and that rule merely provides that a prayer or invocation be given each meeting day before the House conducts any business. The manner in which the program is currently administered is a matter of House tradition, implemented at the discretion of the Speaker. Although there is some minimal amount of funds expended in the administration of the program, the plaintiffs have not pointed to any specific appropriation of funds by the legislature to implement the program. Furthermore, other than the costs of web-casting, the only costs incurred are postage for the sending of thank-you letters and pictures. These costs not only are unrelated to the content of the prayers offered, they are unnecessary for the administration of the “Minister of the Day” program.
Under these circumstances, we simply cannot conclude that the nexus require
Despite the lack of specific direction by the state legislature to establish the Minister of the Day program and the lack of specific appropriations dedicated to the program, the plaintiffs maintain that Hein does not require this court to reconsider the preliminary conclusion of the stay panel that the plaintiffs possessed standing to maintain this action. The plaintiffs note that the Supreme Court in Hein did not disturb its holding in Flast: “We do not extend Flast, but we also do not overrule it. We leave Flast as we found it.” Id. at 2571-72. Because this court’s initial determination was based on Flast (and case law interpreting Flast), the plaintiffs urge that Hein leaves undisturbed the stay panel’s standing determination. We cannot agree.
Although the Supreme Court’s plurality characterized its opinion as effecting no change in its view of the law of taxpayer standing, the plurality’s decision, especially when read with Cuno, clarified significantly the law of taxpayer standing for the lower federal courts. For instance, our treatment of taxpayer standing at the time we addressed the Speaker’s motion for stay articulated a more malleable vision of Flast than the one articulated by the plurality in Hein. In our earlier treatment, we stated: “Both parties accept that, in order to have standing as a taxpayer, a person must demonstrate that the challenged program is supported by monies raised through taxes and that the use of those monies exceeds a specific constitutional limitation on the use of public funds, such as the First Amendment’s prohibition on laws respecting an establishment of religion.” Hinrichs,
We are well aware of the time and energy that the parties and the district court have expended on the merits of this matter. However, “[i]f a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.” Cuno,
Conclusion
For the foregoing reasons, we reverse the district court’s judgment, and we remand the case to the district court with instructions to dismiss for want of jurisdiction. The Speaker may recover his costs in this court.
REVERSED AND REMANDED WITH INSTRUCTIONS
Notes
. The parties stipulated that members of the public seated in the balcony are “discouraged] from leaving the balcony during the Pledge of Allegiance or the Invocation so as to minimize noise. However, if any individual indicates that he or she objects to the prayer or Pledge or if the individual expresses a desire to leave immediately the individual will be allowed to leave freely.” R.17 at 1-2.
. An exception to this typical arrangement occurs when the Speaker has sponsored the cleric of the day.
. Specifically, the district court decreed:
1. That defendant Speaker of the House of Representatives of the Indiana General Assembly, in his official capacity, is permanently enjoined from permitting sectarian prayers to be offered as part of the official proceedings of the House of Representatives. If the Speaker chooses to continue to*588 permit non-sectarian prayers as part of the official proceedings, he shall advise all persons offering such prayers (a) that the prayers must be non-sectarian and must not be used to proselytize or advance any one faith or belief or to disparage any other faith or belief, and (b) that the prayers should not use Christ’s name or title or any other denominational appeal. This injunction applies to the Speaker, and to his agents, servants, employees, and attorneys, and all other persons in active concert with them who receive actual notice of this injunction by personal service or otherwise.
R.31 at 1-2.
. This order rendered moot the Speaker’s motion to stay.
. As noted by our dissenting colleague, a pecuniary interest is not the only means of establishing standing. See dissent at 605-06. In the context of an alleged Establishment Clause violation, we have stated that "allegations of direct and unwelcome exposure to a religious message" are sufficient to show the injury-in-fact necessary to support standing. Doe v. County of Montgomery, Ill.,
. In Doremus v. Board of Education,
[W]e reiterate what the Court said of a federal statute as equally true when a state Act is assailed: "The party who invokes the power must be able to show, not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.”
Id. at 434,
. Neither the district court, nor this court in considering the motion for stay, had the benefit of this decision.
. The dissent asserts that the requisite connection between the allegedly unconstitutional practice and the expenditure of funds is established by the initial adoption of House Rule 10.2 in conjunction with the House's later action in passing a budget, which included appropriations for the general operations of the House. We do not believe these two actions satisfy the requirement, set forth in Hein, that the challenged expenditures be “expressly authorized or mandated” by a "specific congressional enactment.” Hein v. Freedom from Religion Foundation, Inc., - U.S.-,
. The plaintiffs also argue that "this Court has also consistently acknowledged that Flast gives a taxpayer standing to challenge any type of state or local 'tax dollar expenditures that allegedly contribute to Establishment Clause violations. Flast v. Cohen.' ” Appellees' Supp. Br. at 5 (quoting Gonzales v. North Township of Lake County, Indiana,
The one case that warrants further comment is Van Zandt v. Thompson,
On appeal, our discussion of standing was brief:
The district court held and neither of the parties has disputed that Van Zandt has standing to sue since he is an Illinois taxpayer and since the proposed prayer room would arguably place economic burdens of various sorts on the State of Illinois and its taxpayers. Van Zandt v. Thompson,649 F.Supp. 583 , 587 (N.D.Ill.1986) (citing Marsh v. Chambers,463 U.S. 783 , 786 n. 4,103 S.Ct. 3330 ,77 L.Ed.2d 1019 (1983)). Similarly, the district court held that the "Freedom from Religion Foundation, Inc.,” a Wisconsin not-for-profit corporation, has associational standing as a representative of its members who are Illinois taxpayers. Id. at 588 n. 4. These determinations appear to be correct and have not been challenged by any of the parties. We therefore accept them.
Id. (parallel citations omitted). After Cuno and Hein, such amorphous burdens on state taxpayers would not meet Flast’s narrow exception to taxpayer standing. Indeed, the resolution at issue did not authorize any expenditure of funds, nor did it contemplate the use of any state taxes for the renovation and maintenance of the room. Consequently, the district court’s assessment that the room would "place economic burdens of various sorts” on the state taxpayers was merely speculative and could not support the concrete injury to the plaintiffs as taxpayers necessary to support standing.
Dissenting Opinion
dissenting.
One of the crowning achievements of the American Experiment has been the
Another characteristic of which Americans are rightly proud is the tradition of individualism, not in the sense of selfishness, but in the sense of each citizen’s willingness to shoulder whatever burdens need to be assumed and to take responsibility for herself, her family, her community, and the greater world around her. Americans classically do not sit back and wait for someone else to solve a problem. This may help to explain why the tradition of the private attorney general arose in the United States and continues to be such an important part of American public law. It may also help to explain why there has always been a healthy skepticism about “government.” Those entrusted with governmental power might exceed their mandate, which is why, as James Madison explained in Federalist No. 51 (among other places), the Framers of the Constitution chose a system of mutual checks and balances. The Federalist No. 51 (James Madison) (Gideon ed.2001). Speaking about the dangers from an unchecked Legislative Branch in Federalist No. 18, Madison noted that in Pennsylvania “it appear[ed] that the constitution had been flagrantly violated by the legislature in a variety of important instances.” Id. No. 48, at 259 (James Madison). Madison’s concern that “[i]f a majority be united by a common interest, the rights of the minority will be insecure,” id. No. 51, at 270, is well known. Madison himself thought that this problem would largely be solved by shifting coalitions of interest groups. With the rise of political parties, however, coalitions have not shifted as fluidly inside legislative bodies as the Framers may have thought they would. An alternative check, which was also built into the Consti
As the Supreme Court has stressed, the Judicial Branch can perform this function only when the person seeking to invoke the aid of the courts has presented a “Case or Controversy” in the sense that Article III of the Constitution uses that phrase. One aspect of this Article III command is that the plaintiff must have “standing to sue.” Put negatively, standing is lacking when “even though the claim may be correct the litigant advancing it is not properly situated to be entitled to its judicial determination.” 13 Charles A. Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice & Procedure § 3531 at 338-39 (2d ed.1984). As this court recently noted in Winkler v. Gates,
I
This case, as the majority has explained, concerns the use of chaplains in Indiana’s House of Representatives (“the House”). The House uses a system of rotating chaplains, rather than a single official who is appointed to serve in that capacity for a stated term. (For a discussion of the difference between the two types, see Jeremy G. Mallory, Comment, “An Officer of the House Which Chooses Him, and Nothing More”: How Should Marsh v. Chambers Apply to Rotating Chaplains?, 73 U. Chi.L.Rev. 1421, 1426-30 (2006).) In the interest of avoiding any dispute about the way in which the chaplain of the Indiana House functions, I take most of the discussion that follows from the brief filed on behalf of the Speaker of the House before this court. The Speaker begins by noting that the legislative authority in Indiana is vested in the General Assembly, which is a bicameral body consisting of the Senate and the House. Ind. Const. art. TV, § 1. The House has 100 members; those members elect a Speaker, who has authority over the House. Ind. Const. art. IV, § 10; Ind.Code § 2-2.1-1-7; Rules of the House of Representatives (“the Rules”), Part III.B 19-20 and Part I. The Speaker presides over the House from the Speaker’s stand at the front of the House; under the Rules, no person may enter the Speaker’s stand without the Speaker’s invitation.
10.1 Calling the House to order
10.2 Prayer
10.3 Pledge of Allegiance
10.4 Roll call
At that point, assuming that a quorum is present, the day’s business gets underway, with reports from committees, introduction of resolutions and bills, and other matters. See Rules 10.4-10.8. The focus in this case is on Rule 10.2, which calls for a prayer. The Speaker explains that the prayer is generally offered by a religious cleric who has been invited to the House for that purpose; if no cleric is present, a Representative will offer a prayer instead. The Speaker authorizes the clerics or Representatives to ascend to the Speaker’s stand to pronounce the prayer. Invocations of this type have been offered in the House for 188 years. (Indiana became the 21st state on December 3, 1818; presumably the Speaker means to say that there has never been a time since statehood when such prayers were not offered. See http://www.statelib.lib.in.us/www/ihb/publications/tlstatehood.html (last visited Sept. 25, 2007).)
The invited clerics are chosen by Representatives, who complete a “Minister of the Day” form indicating when the person is available to serve. Once the form is received, the actual date is scheduled. After a cleric is selected to offer the prayer, he or she will receive a brief form letter. Apart from passing along logistical details, the letter offers the following guidance:
The invocation is to be a short prayer asking for guidance and help in the matters that come before the members. We ask that you strive for an ecumenical prayer as our members, staff and constituents come from different faith backgrounds. Thank you for your consideration.
As the majority notes, the legislature has authorized and appropriated specific revenues to support the prayer. The amounts are tiny, compared to the size of Indiana’s recent annual budget of some $25 billion in expenditures. See http://www.in.gov/sba/budget/2007_budget/as_passed/pdfs (last visited Sept. 25, 2007). The form letter cost at the time $0.54 per mailing; photographs are provided at public expense at a cost of $0.68 each; and the photographs along with a thank-you letter are sent to the cleric afterward at a cost of about $1.60 per mailing, for a total of $2.82 in direct costs. The sessions of the House are broadcast over the Internet at a cost of $112.85 an hour, or $1.88 a minute; this too is paid for by tax revenues. Assuming that a typical invocation is about 3 minutes in length, another $5.64 per legislative day might be attributed to this practice, for a total expenditure of $8.46 per prayer.
During the 2005 legislative session transcripts were prepared for 45 out of the 53 prayers that were offered. The person giving the prayer, and his or her religious affiliation, was identified for all 53 days. On 41 of those days, the prayer was offered by a cleric or other person identified with a Christian denomination; one prayer was offered by a rabbi, one by an imam, one by a lay person, and nine by legislators. In 29 out of the 45 invocations for which transcripts are available, the person explicitly offered the prayer in the name of Jesus, Christ, the Savior, or the Son (sometimes using more than one of those words). In a small number, the officiant notes that he or she is praying personally in the name of Jesus or Christ, but in the majority, the officiant states or implies
These were the practices to which the plaintiffs, all Indiana taxpayers, objected. They filed the present suit, claiming that the Indiana legislature was appropriating and spending monies to support religion and sectarian prayer, and that this practice violated the Establishment Clause. The district court found that they had standing to sue, under Flast v. Cohen, and that the particular prayers the Speaker was permitting crossed the line between permissible invocation and prohibited religious practice first established in Marsh v. Chambers,
II
As I noted earlier, the Supreme Court has recognized three elements of Article III standing: injury-in-fact, a causal connection between the injury and the defendant’s conduct, and likely redressability through a favorable decision. Lujan,
Although it is a bit anachronistic to superimpose the Lujan analysis on earlier taxpayer standing cases, it is nonetheless useful for purposes of understanding how those decisions contribute to the modern
in the moneys of the Treasury — partly realized from taxation and partly from other sources — is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.
Id. at 487,
In Flast, the Court took a closer look at why taxpayer standing had been rejected in Frothingham. It concluded that the taxpayer in the latter case “lacked standing because her constitutional attack was not based on an allegation that Congress, in enacting the Maternity Act of 1921, had breached a specific limitation upon its taxing and spending power.”
Although some might object to the vagueness of this injury — Justice Scalia, for one, made exactly that argument in Freedom From Religion, see
The Establishment Clause uniquely involves this sort of psychic, aesthetic, or intangible injury. The injury involved is never physical and only rarely (with the prominent exception of taxpayer cases, it so happens) even monetary. Instead, in cases where the Court has not balked at accepting standing, the plaintiffs claim more intangible injuries such as: having a predominantly religious purpose in arranging art in a particular way, see McCreary County v. American Civil Liberties Union of Ky.,
In evaluating the case before us, it is not necessary to review all of the cases dealing with taxpayer standing to challenge either Establishment Clause violations or other constitutional violations. It is enough to take a closer look at Freedom From Religion and to note carefully what the plurality did and did not hold there. Before doing so, I note one point of agreement between the majority and me: the principles announced in Freedom From Religion with respect to federal taxpayers apply with equal force to the state taxpayers before us in the present case. The Supreme Court so held in DaimlerChrysler,
I have been discussing Justice Alito’s plurality opinion reversing the court of appeals, as does the majority, because it was he who expressed the middle ground on the Court. Unlike Justices Scalia and Thomas, who thought that the time had come to overrule Flast, Justice Alito, joined by the Chief Justice and Justice Kennedy, was not prepared to go so far. The plurality found such a move unnecessary, because in their view the taxpayers before them did not satisfy Flast’s narrow exception to the normal Frothingham rule against taxpayer standing. Justice Souter, writing for himself and the other three dissenters, noted the Court in Daimler-Chrysler had recently reaffirmed that the “ ‘ “injury” alleged in Establishment Clause challenges to federal spending’ is ‘the very “extraction] and spending]” of “tax money” in aid of religion.’ ”
The plurality opinion contains numerous references to the importance of the fact that “[t]he expenditures at issue in Flast were made pursuant to an express congressional mandate and a specific congressional appropriation.”
Because the expenditures that respondents challenge were not expressly authorized or mandated by any specific congressional enactment, respondents’ lawsuit is not directed at an exercise of congressional power, see Valley Forge,454 U.S. at 479 ,102 S.Ct. 752 , and thus lacks the requisite “logical nexus” between taxpayer status “and the type of legislative enactment attacked.” Flast,392 U.S. at 102 ,88 S.Ct. 1942 .
Id. at 2568. Finally, Justice Alito rejected the “parade of horribles” that respondents feared would occur if discretionary Executive Branch expenditures were outside the reach of taxpayer litigation. “In the unlikely event that any of these [overtly religious] actions did take place, Congress could quickly step in.” Id. at 2571.
Ill
Given the fact that taxpayer standing, after Freedom From Religion, turns on whether the plaintiffs are claiming that a “legislatively created program” is unconstitutional because it violates the Establishment Clause, we must look more specifically at what our plaintiffs are attempting to challenge to see whether this suit may go forward to an adjudication on the merits. What we find is a challenge to a legislative chaplaincy, created by a House Rule enacted by Indiana’s House of Representatives and administered by the Speaker. The Indiana House and Senate both enact their rules pursuant to Ind. Const. art. IV, § 10 (“Each House, when assembled, shall choose its own officers, the President of the Senate excepted; judge the elections, qualifications, and returns of its own members; determine its rules of proceeding, and sit upon its own adjournment. But neither House shall, without the consent of the other, adjourn for more than three days, nor to any place other than that in which it may be sitting.”) (emphasis added). There does not appear to be any additional specific enabling act pursuant to which the rules are adopted at the beginning of each session. This seems close to the practice of the U.S. Senate, which maintains standing rules rather than readopting them at the beginning of each session. See Sen. Rule V.2 (“The rules of the Senate shall continue from one Congress to the next Congress.... ”).
Under Freedom From Religion, it is necessary to situate these rules, and House Rule 10.2 in particular, somewhere in the broader scheme of Indiana’s government. In the final analysis they necessarily must be legislative acts, executive acts, or something sufficiently like one of those two that we can proceed with the standing analysis. (They certainly are not judicial in nature, which is why I disregard that possibility.) This is not the usual question that comes up, in the administrative law context, with respect to legislative rules. Instead, courts have grappled with whether challenges to this type of internal rule present nonjusticiable political questions for the reason that there is an explicit textual commitment to each house to set its own rules. See U.S. Const. art. I, § 5,
There is no indication anywhere that a rule like House Rule 10.2 is anything other than legislative. Indeed, the Indiana courts have made it clear that the powers of the two houses of its Legislative Branch are themselves solely legislative in nature; neither the executive nor the judicial branches of government may interfere with them. See, e.g., State ex rel. Wheeler v. Shelby Circuit Court,
The House Prayer is thus different from the Bible readings at issue in Doremus v. Board of Ed. of Hawthorne,
The majority would require litigants to trace money directly through the state’s accounts, which is surely an excessive requirement for a preliminary matter like standing. This reading of Freedom From Religion would effectively adopt Justice Scalia’s concurring opinion for himself and Justice Thomas advocating the overruling of Flast, in contravention of the rule in Marks v. United States,
The majority’s approach also disregards the special place that legislative chaplaincies have held in the Supreme Court’s Establishment Clause and standing jurisprudence. Marsh v. Chambers was decided in 1983, long after both Doremus and Flast were on the books. In that case, the Court considered a challenge to the practice of the Nebraska legislature of opening each legislative day with a prayer by a chaplain paid by the state.
I do not rule out the possibility that some or all of the prayers offered before the Indiana House might similarly pass muster under Marsh. Unfortunately, however, we are never to find out. Under the majority’s approach, even if the Speaker decides to start working his way through the Anglican Book of Common Prayer day by day, notwithstanding the presence of Jewish, Muslim, Hindu, Buddhist, and other legislators, staff, and constituents, nothing can be done to enforce
Apart from all the other problems I see with this outcome, it is striking how inconsistent it is with the history of the Establishment Clause. A leading casebook on the subject summarized the type of “establishment of religion” that was known to the Framers of the Constitution as including four prominent features: (1) governmental control over church doctrine and personnel; (2) suppression of alternative faiths; (3) political connections between the established church and the lay government; and (4) compelled attendance and financial support for the established church. Michael W. McConnell, John H. Garvey, and Thomas C. Berg, Religion and the Constitution 21-23 (Aspen 2002). To illustrate the sort of state establishments that persisted after the Constitution was written, the book presents the case of Barnes v. First Parish in Falmouth,
Having secured liberty of conscience, on the subject of religious opinion and worship, for every man, whether Protestant or Catholic, Jew, Mahometan, or Pagan, the constitution then provides for the public teaching of the precepts and maxims of the religion, of Protestant Christians to all the people. And for this purpose it is made the right and the duty of all corporate religious societies, to elect and support a public Protestant teacher of piety, religion, and morality; and the election and support of the teacher depend exclusively on the will of a majority of each society incorporated for those purposes.
Professor Philip Hamburger provides further insight into the evils that the Establishment Clause was designed to address:
In late eighteenth-century America the dissenters from the established churches sought limitations on civil government and did so in arguments that conformed to recognizable patterns. The states with establishments had once passed laws imposing penalties on dissenters but now more typically enacted only privileges for their established denominations — notably, salaries for the established clergy. Against these establishments of religion most dissenters sought not only a freedom from penalties (whether in terms of the “freedom of worship” or the “free exercise of religion”) but also guarantees against the unequal distribution of government salaries and other benefits on account of differences in religious beliefs. Some dissenters even demanded assurances that there would not be any civil law taking “cognizance” of religion. As a result, the American constitutions that were drafted to accommodate the anti-establishment demands of dissenters guaranteed religious liberty in terns of these limitations on government — specif*612 ically, limits on discrimination by civil laws and on the subject matter of civil laws.
Phillip Hamburger, Separation of Church and State 11-12
(Harvard University 2002). Madison agreed with the dissenters who thought that the state should not establish a religion; indeed he may have favored a more absolute separation between “matters of Religion” and “Civil Society.” Id. at 105. When it came to drafting the Bill of Rights, however, he settled on antiestablishment language similar to that which was finally adopted. Id. This suggests that the Establishment Clause was the result of efforts by religious dissenters who felt the need to protect themselves from the dominant established sects that had managed to secure various benefits that could be conferred only by the state, including access to the public fisc.
In my view, the taxpayer-plaintiffs before us have alleged enough to win the right to present their challenge to the House Prayer before a judicial forum. They are challenging a legislative act, and they have alleged concrete pocketbook injuries. Given both the ruling in Marsh and the qualifications on that ruling, the issue they wish to present is a serious one. They argue, in essence, that preferential access to the Speaker’s stand for adherents to the Christian faith is exactly the kind of problem that the First Amendment’s Establishment Clause was supposed to remedy. Were this a simple Establishment Clause case in which they complained about hearing the prayers as they walked past the door of the House Chamber on their usual way to work, they may very well have been entitled to proceed. The majority overextends the command of Freedom From Religion in denying them a day in court. I respectfully dissent.