*1 CHRISTIAN COLLEGE AMERI VALLEY FORGE SEPARATION OF CHURCH UNITED FOR AND CANS INC., STATE, et al. Argued January 12,
No. November 1981 Decided 80-327. *2 J., Rehnquist, Burger, opinion Court, delivered the in which J., J., White, O’Connor, JJ., C. Powell, Brennan, joined. dissenting JJ., filed opinion, joined, in which Blackmun, Marshall post, p. J., p. 490. dissenting opinion, post, filed a Stevens, C. Hodgson, Jr., Clark filed a brief the cause and argued for petitioner.
Solicitor federal par- General Lee argued the cause for ties 19.6 respondents support under Rule this Court’s petitioner. him on the briefs were former Solicitor With Deputy Deputy Geller, General McCree, General Solicitor Shapiro, Schaitman, Leonard and Bruce Solicitor General Bagni. respondents. Boothby argued him
Lee the cause With Nixon* on the was Robert W. brief Rehnquist delivered the of the Court. I opinion Justice § Congress Article cl. of the Constitution vests IV, dispose of and make all needful with the “Power to Rules and Regulations respecting Property belonging the . . . Shortly United States.” after the termination of hostilities Congress War, enacted the Second World Federal Property and Administrative Services Act of *3 63 1949, Stat. (1976 § seq. Supp. 40 471 et 377, amended, as U. S. C. ed. and III). designed, part, provide The Act was “an economi- system disposal surplus prop- cal and efficient . . . the for of §471. erty.” 63 40 In 378, Stat. U. S. C. furtherance of policy, agencies this federal are directed to maintain ade- quate property inventories of the under their control and to identify property agencies excess for transfer to other able to (c).1 483(b), §§ Prop- it. use See 63 Stat. 40 384, U. S. C. erty that has outlived its usefulness to the Federal Govern- “surplus”2 may pri- ment is declared be transferred to *Briefs of amici Z. curiae Nathan urging by affirmance were filed Dershowitz and Marc D. al.; Stem for the American Jewish Congress et Leo by for the and Reli- National Coalition for Public Education Pfeffer gious Liberty et al. 1 The Act defines property” “property “excess the control of as under agency Federal required discharge which is not of its for and the its needs responsibilities.” 472(e). 378, 68 § Stat. 40 U. S. C. 2The Act “surplus defines re property” “any property not as excess quired for the needs and Federal discharge responsibilities the of of all the agencies, as 63 Services].” determined the [of Administrator General 379, § Stat. 40 472(g). U. S. C.
467 generally public See 63 vate or other entities. Stat. as §484. 40 amended, U. S. C. Secretary of Act the Health,
The authorizes Education, (now Education3) Secretary the of Welfare assume surplus disposing responsibility property of real for “for other educational use.” school, classroom, or 63 Stat. 387, §484(k)(l). Subject disap amended, as 40 U. C. proval of the Administrator General Services, Secre may property tary nonprofit, tax-exempt sell or lease for consideration that educational institutions takes into ac “any may count benefit has accrued or which accrue to the property. States” from the use of United transferee’s 63 (C).4 §§484(k)(l)(A), By regulation, Stat. 40 U. S. C. Secretary provided computation “public for has aof price benefit allowance,” which discounts transfer property “on the basis benefits to the United States from property purposes.” of such use educational CFR 12.9(a) (1980).5 § property spawned litigation acquired
The Department Army part larger 1942, as approximately tract of acres of land northwest Phila- delphia. Army Valley Forge on built that land the Gen- Hospital, years hospital pro- eral and for thereafter, vided medical care for members of the Armed Forces. April part plan military 1973, aof reduce number §§3411, 3441(a)(2)(P) (1976 III). ed., See U. S. C. Supp. *4 property program
4 The applicant having to “be awarded of utilization which provides, opinion Education], in the Department the [of of greatest public (1980). the § benefit.” 34 must be Applicants CFR 12.5 willing and able to and responsibility property assume immediate for the must demonstrate implement approved pro the capacity financial the gram 12.8(b). of § educational use. 5In calculating public allowance, the fac Secretary benefit the considers tors applicant’s public such the accreditation, sponsorship of educational training, plans service programs, commit to introduce new instructional ment to student welfare, research, health the handi and and service to capped. pt. 12, CFR Exh. A Secretary the of States, Defense in the United installations hospital, proposed and General Services Ad- close the property.” “surplus to be it ministration declared and Department Education, Welfare Health, of The (HEW) responsibility eventually disposing for assumed August conveyed portions property, it and of the Valley Forge petitioner, the Christian Col- tract 77-acre property appraised lege.6 at the time of value The appraised conveyance value This was dis- $577,500.7 was Secretary’s computation aof 100% however, counted, permitted petitioner public which to ac- allowance, benefit making payment property quire financial for without conveyed simple from land fee it. deed HEW The subsequent, required peti- conditions with certain years property solely for use the for educa- tioner to petitioner’s application. purposes In that tional described description, petitioner pro- intention “a stated its to conduct meeting gram accrediting of education . . . standards of Pennsylvania, The the State of American Association Bible Colleges, the Division of Education of the Councilof General the Assemblies Administration.” God Veterans nonprofit operating Petitioner is a institution educational supervision religious under the as the As- order known By description, petitioner’s pur- semblies God. its own pose systematic training collegiate is “to offer level to on the men and for women Christian as either ministers service laymen.” App. degree programs this ori- Its reflect by providing study entation “to leaders for courses train Faculty church related members ministries.” Id,., remaining The for property conveyed districts educa to local school purposes tional At the time of park or set aside for recreational use. the conveyance, petitioner College. Northeast Bible was known as the appraiser placed on buildings fixtures situated no value on Army hospital tract. The buildings for an had been use as constructed and, view, his other expense necessary render them useful purposes would have offset the value an endeavor. of such *5 Holy Spirit baptized living
must “have in the been and be id., consistent and all lives,” Christian members of the college administration must be affiliated with the Assemblies application pe- of God, In its for the id., 77-acre tract, represented property, titioner if it obtained the that, it would offerings in make “additions to its the arts and humanities,” strengthen “psychology” “counselling” and would its provide inner-city courses to services areas. September respondents
In Americans United for (Americans Separation United), State, of Church and Inc. employees, conveyance through and four of its learned of the they brought later, news release. Two months suit in the United States District Court for the District of Columbia, Pennsylvania, later transferred to the Eastern District of challenge conveyance ground on the that it violated the Establishment Clause of the First id., Amendment.8 See complaint, its amended Americans United described nonprofit organization composed itself as a 90,000 “tax- payer complaint members.” The asserted that each member deprived “would be of the fair and constitutional use of his (her) purposes tax dollar for constitutional in violation of his (her) rights under the First Amendment of the United States Respondents sought Constitution.” Ibid. a declaration conveyance compel- that the was null and an void, order ling petitioner property to transfer the back to the United States. Id., at 12. petitioner’s granted
On motion, sum- District Court mary judgment complaint. App. to Pet. dismissed the respondents for Cert. A42. The lacked court found that taxpayers to sue as Cohen, under Flast v. (1968), they allege and had “failed to have suffered grievance beyond generalized actual or concrete taxpayers.” common App. to all A43. Cert. to Pet. for 8“Congress shall of reli make respecting no law an establishment gion . . . .” *6 Appeals appealed of for the Respondents to the Court judgment of the District the reversed Circuit, Third Dept. by United v. U. S. Americans vote. a divided Court (1980). All members of the court HEW, 252 619 F. 2d of standing taxpayers as respondents to agreed lacked conveyance challenge Cohen, Flast v. since under the only taxpayers qua taxpayers standing to extended that case power challenge congressional the tax and exercises of to to § by this spend 8, Constitution, of the I,Art. conferred by legislation conveyance the enacted under was authorized authority Property IV, Art. cl. 2. Not Clause, §3, withstanding significant Flast, factual difference from this respondents Appeals majority found that of of the Court claiming “‘injury standing merely in fact’ to “citizens,” had government right that ‘shall to a their shared individuated religion.’” respecting 619 law the establishment make no standing” majority’s this “citizen view, at 261. In the 2d, F. satisfy controversy” require- the “case or was sufficient to judge, perhaps sensing doctrinal ment of Art. III. One majority’s standing, with wrote difficulties extension necessary expressing standing separately, his view that was satisfy plaintiff,” “the an whom need for available without virtually unen- “the Establishment Clause would be rendered judiciary. forceable” 268. The dissent- Id., ing judge expressed respondents’ allegations the view “generalized grievance constituted a to sat- . . . too abstract isfy component standing.” Id., fact standing He therefore concluded that to contest their Schlesinger transfer barred Court’s decisions Stop v. Reservists 208 Committee S. War, (1974), 166 and United States v. Richardson, (1974). 619 F. 2d, at 270-271. unusually
Because of and novel view of broad litigate question substantive courts in the federal adopted by Appeals, granted certiorari, Court of we (1981), U. S. and we now reverse. I H-1 “judicialpower” III limits the
Article of the Constitution the resolution of “cases” and the United States to “controver- power of federal courts sies.” The constitutional cannot be substance, has no without reference defined, and indeed legal rights litigants necessity adjudge the “to actual Liverpool controversies.” S.S. Co. Commissioners of Emigration, requirements 113 U. S. merely party requests Art. Ill are not satisfied because legal rights, court of the United States to declare its and has *7 historically request couched that for forms of relief associated ring with courts of law in terms that have a familiar to those judicial legal process. power trained in The the of the by Ill United States defined Art. is not an unconditioned au- thority constitutionality legislative to determine the or ex- power rights ecutive acts. The to declare the of individuals authority governments, and to measure the said Court years ago, legitimate only 90 “is in the as a resort, last and necessity in the determination of earnest and vital con- real, troversy.” Chicago & Grand Trunk R. 143 Wellman, Co. (1892). power judicial 339, U. S. 345 Otherwise, the “is not judicial power granted by . . . the sense in which Constitution to the courts of the United States.” United v. Ferreira, States 13 48 40, How. require-
As an incident to the elaboration of this bedrock always litigant required ment, this Court has have “standing” challenge sought adjudicated in the action to be “standing” the lawsuit. The term a blend of con- subsumes requirements prudential stitutional considerations, see and (1975), Warth v. 422 al- Seldin, it has not 490, U. S. ways opinions particu- been clear in of this Court whether “standing” requirement lar features of been re- have quired by they proprio vigore, Art. Ill are ex or whether requirements which that the erected and Court itself has compelled by language were not the Constitution. supra, Flast See v. Cohen, at 97. however, has resolved that decisions,
A recent line of following extent: at an irreducible ambiguity, to the at least party requires who invokes the court’s Art. Ill minimum, personally authority has some suffered ac- that he to “show putatively illegal injury a result of threatened tual or Village Gladstone, Realtors v. defendant,” conduct of (1979), injury “fairly that the U. S. Bellwood, likely challenged and “is action” to be re- can be traced to Kentucky Simon v. Eastern decision,” dressed a favorable (1976).9 Org., Rights 26, 38, 41 In this 426 U. S. Welfare judicial power federal Ill limit the “to manner does Art. disputes courts to a role confine federal consist- those separated powers system which are tradi- ent with a through judi- tionally thought capable of resolution to be process.” Cohen, cial Flast v. requirement of “actual redressable “implicit swpra, at serves several of the
court,” Simon, policies III,” Flast, in Article It embodied legal questions presented tends to assure that the atmosphere resolved, court will be the rarified of a de- society, bating but a concrete factual context conducive judicial appreciation consequences action. realistic *8 “standing” requirement purposes. The Be- serves other litigant setting cause it assures an actual in factual which may asserts a claim of the case fact, a court decide way pave with some confidencethat its decision will not for lawsuits which have the facts of the some, all, but not of actually case decided the court. 9 ante, Energy Foundation, Watt v. Action Educational 161; See
Duke Inc., Power Co. v. Study Group, Carolina Environmental 438 U. S. Arlington Heights Housing Corp., 59, Dev. Metropolitan (1978); 72 429 v. Seldin, 252, 261, Warth v. 490, (1975); U. S. (1977); 262 499 422 U. S. Schlesinger War, Stop Reservists 208, 218, Committee to v. 418 U. S. Richardson, United States (1974); 166, 220-221 179-180 v. 418 U. S. Littleton, O’Shea v. Rich (1974); Linda R. S. v. 488, (1974); 414 U. S. D., ard (1973). 614, 410 U. S. 617-618 regard aspect reflects a also due Art. Ill
The likely persons directly autonomy to be most of those abjured by judicial courts The federal have order. affected judicial authority appeals would convert the which to their process vehicle for the vindication of than a into “no more bystanders.” United States v. value interests of concerned Were federal courts SCRAP, public merely publicly forums for the ventilation of funded jurisprudential grievances understand- the refinement or “standing” quite unnecessary. ing, concept be would language Ill of Art. fore- But the “cases and controversies” judi- courts of the United States into closes the conversion of debating college forums. As we said Si- cial versions of (1972): Morton, erra v. 405 U. S. Club party seeking requirement al- “The that a review must showing adversely lege that he is himself affected facts rough attempt put as at least a the de- . . . does serve sought in to whether review will be the hands of cision as those have a direct stake the outcome.” who judicial profoundly power, The can so affect exercise liberty, property extends, it lives, of those to whom “injury litigants is therefore show restricted to who can resulting they have the fact” from the action which seek to adjudicate. court relationships judicial power
The exercise of the also affects coequal between the arms of the National Government. is, effect court declares course, most vivid when a federal Legislative Executive unconstitutional an act or supreme Branch. While the that “ultimate exercise of Chicago Wellman, function,” & Trunk R. Co. Grand vindicating individual 345, is formidable means of rights, unnecessarily employed unwisely it is also when the fed ultimate threat to the continued effectiveness *9 propriety performing eral courts the that role. While recognized since such action been federal court has 474 (1803), recog- it has been
Marbury 1 137 Cranch Madison, v. judi- part of the federal resort on tool of last nized as a years nearly ciary throughout of existence: 200 its essentially “[Repeated head-on confrontations be- representative and the branch life-tenured tween the long government run, be ben- not, will branches public essential to the The confidence eficial to either. may vitality to the latter well critical and the former self-restraint the utiliza- if not exercise we do erode negative power the actions of the other tion of our v. 418 Richardson, States U. United branches.” concurring). J., (Powell, complex Proper regard nature of our constitutional for the requires that the Judicial Branch shrink neither structure coequal the other two branches of a confrontation with from hospitably accept that it for ad- Government, Federal nor judication claims of constitutional violation other branches cogni- government the claimant has not suffered where passing injury. “refrain[ed] has from Thus, zable this Court constitutionality representative upon [of of an act obliged proper performance branches] unless to do so judicial by party question is raised function, of our when the him v. whose interests entitle to raise it.” Blair United (1919). importance States, 273, 250 U. S. precondition should not be as a means of “de- underestimated fining] assigned judiciary tripartite the role in a alloca- power.” supra, tion of Flast v. Cohen, Beyond judi- requirements, federal constitutional ciary prudential principles has also adhered to a set of question standing. bear on held has Thus, this Court rights plaintiff legal generally that “the his own must assert legal on the interests, and cannot rest his claim to relief rights parties.” Seldin, interests of v. third Warth plaintiff S., at 499.10 In has al- even addition, when 10 Gladstone, Bellwood, Village Realtors v. See U. S. Inc., Study Group, Duke Power (1979); v. Co. Carolina Environmental Singleton Wulff, 80; 113-114
leged injury requirements redressable to meet sufficient adjudicating Ill, of Art. has refrained from Court “ab- public questions significance” stract of wide which amount to “generalized grievances,” pervasively ap- shared and most propriately representative in the addressed branches. Id., Finally, required plain- at 499-500.11 the Court has that the complaint pro- tiff’s “the of fall within zone interests to be regulated by guarantee tected or the statute or constitutional question.” Processing Orgs. Association Data Service of (1970).12 Camp, v. 397 U. Merely principles these articulate is to demonstrate relationship policies their close reflected in the Art. Ill requirement judi- or actual threatened amenable to remedy. prudence cial But neither the counsels of nor the policies implicit controversy” requirement in the “case or rigorous requirements should be mistaken for the Art. Ill themselves. Satisfaction the former cannot substitute for “ palpable injury’. a demonstration of ‘distinct and . . that is likely requested granted.” be if redressed relief is Village Gladstone, Realtors v. Bellwood, S., at 100 501). (quoting supra, requirement Warth v. Seldin, at That judicial power, merely states a limitation on not factor “prudential” weighing to be balanced in the of so-called considerations. say concept
We need not mince words when we that the standing” complete “Art. Ill has not been with con- defined sistency in all of various cases decided Court very say which have it, discussed nor when that this fact we probably proof concept is that the to a one- be reduced cannot one-paragraph thing sentence may we definition. But of one may possess be sure: Those who do not Art. Ill 11 Gladstone, Bellwood, Realtors v. Duke 100; See Village supra, at Power Co. v. Inc., Carolina Study Group, Environmental 12 Gladstone, 6; Village Bellwood, Realtors See n. Kentucky Simon v. Eastern Org., 26, 39, Rights n. 19 426 U. S. Welfare States.13 of the United courts litigate in the as suitors not circumscrip- important every in its as bit is III, Article grant- inas its power States judicial of the United tion of merely hurdle to be a troublesome power, ing of that “merits” of a lawsuit possible to reach so if overcome *11 part adjudicated; it is a of party to have desires which of the Constitu- promulgated the Framers charter basic general created a Philadelphia which 1787,a charter tion government, gov- between that provided interaction governments States, the several of ernment and authority or limit its enhance to either so as amended later respect and individuals. to both States with
I—I by respondents alleged injury in their amended com- The “deprivation] use of plaint the fair and constitutional of is the App. discussion [their] result, 10.14 As a our tax dollar.” merely “tend[ing] to to task for dissent takes us Brennan’s Justice meaning rights of inform, understanding of the obfuscate, our rather than Post, operate a to at 490. this Court constituted the law.” Were under of interested meaning rights” for the benefit on “the of national classroom Ill, Art. teaching of carry weight. The litigants, this criticism would pre only terms however, adjudication available on is that constitutional plaintiff Constitution, requirement of among which is the scribed “over requirement standing to The dissent asserts that this with sue. 493, just but provision Constitution,” post, at rides no other of the wax and wane surely power the Art. Ill of the courts does not federal Ar forum,” harmony litigant’s “hospitable post, with a desire for a power obligates only III of ticle a federal court to act when it is assured so, is, case or contro upon to do that when it actual is called to resolve an constitu versy. Then, only then, other may it turn attention to its of adjudication provisions presume tional provide a forum for (1936) (Brandéis, J., A, rights. See Ashwander v. TV 297 U. S. concurring). as an Respondent injury to itself alleged Americans United has no result, As a organization, injury distinct from members. its it seeks its claim to can the members be no different from those of them, of represent. members, one question The is whether “its challenged suffering are of the injury immediate or as a result threatened members action of had the justiciable the sort that case would make out a begin Frothingham Mellon, must with (1923) (decided Mellon). with Massachusetts v. In that ac- taxpayer brought challenging constitutionality tion suit Maternity provided funding Act of which federal purpose improving for the States maternal and in- alleged fant health. she consisted of the burden support regime, of taxation in of an unconstitutional deprivation property she as a characterized without due process. through “Looking forms of words to the substance complaint,” [the] only the Court concluded that the “in- jury” department was the fact “that officialsof the executive government executing are and will execute an act Congress asserted be unconstitutional.” Id., at 488. Any tangible challenged plaintiff’s effect statute on the fluctuating tax burden was “remote, and uncertain.” Id., at rejecting cognizable injury this as a sufficient to es- standing, tablish the Court admonished: *12 party power judicial [of review] “The invokes who the only must be able to show not the that statute is invalid immediately danger but that he has sustained or is in of sustaining injury some direct as the result of its enforce- merely ment, and not that in he suffers some indefinite way people generally. in with common . . . Here the parties plaintiff have no Id., such case.” Following Frothingham, the in decision the Court con- expenditure allegedly firmed public that the in funds an injury unconstitutional manner is to not an sufficient confer standing, though plaintiff public even contributes taxpayer. coffers as a In Education, Board Doremus v. (1952), plaintiffs 342 U. brought S. 429 as citizens and suit taxpayers, claiming Jersey authorized law which New public passages school read from teachers classroom at 511. See Si- brought S., themselves Seldin, suit.” Warth v. 422 U. mon v. Kentucky Eastern supra, Sierra Club 40; Rights Org., Welfare Morton, v. (1972). 405 U. S. 739-741 First Clause of the Establishment violated the the Bible appeal for lack of dismissed The Court Amendment. standing: taxpayer in interests of that the has held
“This Court
treasury
moneys
too
are
indetermina-
federal
of the
and indirect
furnish a basis for
remote, uncertain
ble,
powers
preventive
appeal
over
the Court
an
expenditure.
disparaging
. . . Without
manner of
their
remedy by taxpayer’s
availability
action to re-
pecuni-
acts which result
direct
strain unconstitutional
injury,
ary
what the Court said of a federal
reiterate
we
equally
state Act is
‘The
true when a
assailed:
statute as
power
party
must be able to show not
who invokes
only
he
is invalid but that
has sustained
that the statute
sustaining
immediately
danger
in-
some direct
or is
merely
jury
enforcement,
its
as the result of
way
people
in common
he suffers in
indefinite
with
some
Frothingham
generally.’”
(quoting
at 433-434
Id.,
(citations omitted).
488)
Mellon,
plaintiffs’grievance
“not a
short,
the Court found that
religious
direct dollars-and-cents
but is a
difference.”
controversy
even
exist,
at 434. A case or
did not
strong.”
though
[was]
interests
real and . . .
“clash of
(Douglas,
dissenting).
Id., at
J.,
again
problem taxpayer
The Court
visited the
plain-
in Flast v.
Cohen,
tion.” Id., at 102. Second, Court challenged specific to “show that the enactment exceeds con- upon taxing stitutional limitations the exercise of the spending power simply gener- and not that the enactment is ally beyond powers delegated Congress by § Art. I, 8.” Id., at 102-103. plaintiffs “[t]heir in Flast satisfied this test because challenge [was] by
constitutional made to an exercise Con- gress § power spend general of its I, 8, under Art. for the welfare,” id., and because the Establishment Clause, plaintiffs’ complaint “operates specific on which rested, as a upon by Congress constitutional limitation the exercise taxing spending power by conferred .1, Art. §8,” id., at distinguished Frothingham 104. The Court v. Mellon, ground Frothingham on the that Mrs. had relied, not specific power spend, on a limitation on the to tax and but on general a more claim based on the Due Process Clause. 392 S.,U. at 105. Thus, the Court reaffirmed that the “case or controversy” aspect is unsatisfied “where a tax- payer employ seeks to a federal court as a forum in which to generalized grievances air his govern- about the conduct of power System.” ment or the allocation of in the Federal Id., plaintiffs respondents Unlike the in Flast, fail the first prong taxpayer standing. of the test for Their claim is defi respects. cient in complaint two First, the source of their congressional not a action, but a decision HEW to transfer parcel property.15 of federal Flast limited stand ing challenges “only congres [at] directed exercises of power.” sional Schlesinger Id., at 102. Reservists See Stop (denying Committee to the War, stand S.,U. at 228 ing taxpayer plaintiffs challenge because the an en “did § actment under Art. I, 8, Execu but rather the action of the Branch”). tive 15Respondents Prop do not challenge constitutionality of the Federal erty and itself, Administrative Execu particular Services Act but rather
tive Branch action arguably authorized the Act. *14 transfer redundantly, property and Second, perhaps not an exercise of au- was complain which respondents about and Clause of Art. Taxing Spending conferred thority the Federal and Property authorizing legislation, I, § 8. an 1949, Act of evident exercise Services Administrative Clause, IV, § Art. Property 3, under power of Congress’ conclusion, not this see Brief dispute do 2.16 Respondents cl. 10, United et al. and it is deci- Americans for Respondents the Flast under sive of claim any precedent.17 simplify procurement, utilization, designed “to and
16 TheAct was “efficient, property” order to achieve an busi disposal of Government Rep. 475, property management.” Cong., S. No. 81st system nesslike 670, Sess., Sess., Rep. Cong., H. R. No. 81st 1st 1-2 1st See (1949). Among purposes central of the Act was the “maximum utiliza property already purchas owned the Government and minimum tion of 475, ing property.” Rep. supra, Congress recog No. of new nized, however, property that from time to time certain would become Government, surplus particular, property acquired by and in to the military contingencies. Congress provided to meet wartime a means of disposing property well-recognized public priorities, this to meet includ ing Rep. 4-5; Rep. education. No. H. R. No. See S. supra, at 5-6.
17 Although necessary decision, to our note that connection we challenged property respondents’ between the is transfer and tax burden speculative at best Although public at worst nonexistent. funds were expended Valley Forge Hospital, establish the the land was ac General quired years prior challenged facilities trans constructed 30 Respondents fer. imme challenge expenditure, do not this do not and we diately perceive do challenge might how such a raised. Nor now be respondents dispute the property Government’s has be conclusion that come useless for purposes pro federal ought disposed some be ductive fact, manner. respondents’ only objection is that the Govern transfer, ment did not adequate receive because for the consideration petitioner’s use of the Brief property public will not confer a benefit. See Respondents for arguendo, that Assuming, Americans United et al. 13. proposition true, clear, an is no basis assumption by means there no believing that a transfer to have added purchaser a different would receipts. pur Government ultimate argues, As the “the Government would, chaser likelihood, all institution or non-profit have been another local school district Brief for Federal purchaser rather than a for cash.” Respondents prop- Moreover, year delay disposing each
Any might concerning doubt that once have existed rigor exception Frothingham with which the Flast principle ought applied to be should have been erased Court’s recent decisions United States v. Richardson, (1974), Schlesinger U. S. 166 v. Reservists Committee to Stop supra. question War, Richardson, plaintiff standing whether taxpayer had as a federal to argue legislation permitted the Central Intelli- gence Agency public to withhold from the detailed informa- expenditures tion about its violated the Accounts Clause of rejected plaintiffs the Constitution.18 standing We claim of challenge [was] because “his taxing not addressed to the spending power, regulating but to the statutes the CIA.” S.,U. at 175. The “mere recital” of those claims “dem- onstrate[d] [fell] standing how far he short of the criteria of neatly [fell] Flast Frothingham and how he within the hold- ing left undisturbed.” Id., 174-175. Schlesinger
The claim in
was marred
the same defi-
ciency.
argued
Incompatibil-
Plaintiffs in that case
that the
ity
prevented
Congress
Clause of Art. 119
certain Members of
holding
from
commissions in the Armed Forces Reserve.
summarily rejected
standing
We
taxpay-
their assertion of
they
ers
challenge
because
“did not
an enactment under Art.
§I, 8,
per-
but rather the action of the
Executive Branch
mitting
Congress
Members of
to maintain their Reserve sta-
(footnote omitted).
tus.”
IV properly Appeals respond- Although doubted the Court solely ability on the basis of their to establish ents’ allegations taxpayer their it considered status, “essentially F. 2d, assumed role.” 619 an be expect, perhaps they nor have no reason to do “Plaintiffs *16 might any personal saving tax that result about, care they prevail. stake, The crux of the interest at should plaintiffs argue, is found in the Establishment money supposed in the loss of as Clause, not such. As primary identity, plaintiffs therefore, matter of are taxpayers separationists .” not so much as . . . Ibid. respondents by standing view, In the court’s had established “‘injury right virtue of in an fact’ to their shared individuated government respecting that ‘shallmake no law the estab- religion.’” distinguished lishment of Ibid. The court “injury” question standing’ “the from of ‘citizen such.” Although generally Id., at 262. not citizens could establish standing simply by claiming governmental in ob- an interest respondents servance of the in- had “set forth Constitution, particular injury” “personal stead a and concrete to a con- right.” stitutional Id., Appeals surely recognizing
The Court of in was correct requirements that the Ill Art. are satisfied “the abstract of the Constitution nonobservance Schlesinger asserted . . . Reservists citizens.” v. Com- Stop mittee to War, 223, 418 at n. This Court S., U. repeatedly rejected standing predicated has on claims of right, possessed by every require “‘the that the citizen,
488 according . Government to law . . .’ be administered Fair Hughes, [1922].” 129 126, child v. 258 Baker v. Carr, U. S. (1962). Schlesinger S. See U. Reservists Stop War, 216-222; Committee to Laird v. Ta (1972); parte Levitt, Ex 302U. tum, 408 U. S. attempts employ
Such more than claims amount little “to generalized griev court forum in which air. . . federal as a government.” Flast ances about the conduct v. Cohen, S., at 106. finding respondents alleged something had more generalized than “the all interest of citizens constitutional governance,” Schlesinger, supra, Ap- Court of peals relied on factual differences which we do not think legal amount to distinctions. court decided that re- spondents’ Schlesinger claim from differed those and Rich- predicated, respectively, ardson, compatibility were on the In- very Clauses, and Accounts because “it is at the arguable least that the Establishment Clause creates each ‘personal right’ government citizen a constitutional to a (footnote religion.” does not establish 2d, 619 F. at 265 omitted). unnecessary The court found it to determine “arguable” proposition whether this it correct, since judged allegation legal right the mere of a sufficient to confer standing. *17 reasoning process merely disguises,
This a we think with inconsistency rather thin the veil, of the court’s results with our Schlesinger plaintiffs decisions in and Richardson. The plainly “personal right” those cases asserted a to have the Government act accordance the with their views of Con- stitution; indeed, we no see barrier to the assertion of such respect any claims provision. with to But as- constitutional right particular of sertion a to a conduct, kind of Government differently, which by acting the Government has violated satisfy requirements cannot alone the Ill without of Art. draining requirements meaning. those of distinguished Schlesinger be on Richardson and Nor can Incompatibility Accounts and Clauses are ground the the that way than the Establishment “fundamental” less some a norm of conduct which the Fed- Each establishes Clause. greater no to honor—to lesser bound is eral Government in the Constitution. To inscribed other than extent standing Appeals on a relied view of Court of extent the “impor- diminish as Ill burdens Art. which the under reject increases, merits we that no- on the tance” of the claim standing party requirement “focuses on the The tion. complaint seeking get a federal court and not on his before to adjudicated.” Flast v. Cohen, he to have the issues wishes principled of no on Moreover, we know basis hierarchy of constitutional values or a com- to create a which standing might permit “sliding plementary re- scale” which power spondents judicial of United States.20 to invoke the reading on of our premised dissent is a revisionist Justice Brennan’s Ill precedents requirement to conclusion that the Art. which leads any taxpayer who contends “that the Federal Gov is satisfied allocating largesse,” law in its ernment has exceeded bounds of the concept injury necessarily recognizes post, taxpayer at “The 508. Treasury continuing taxpayer disposition stake of the taxes, put lawful right he has contributed his to have funds his those Post, understanding, at the dissent reads uses.” 497-498. On novel Frothingham tax cases such as as on merits and Flast decisions payers’ taxpayer or Frothingham explained holding claims. as a that a Post, dinarily no legal right challenge congressional expenditures. has at a does holding dissent divines from Flast largesse” right have an enforceable challenge “to a federal bestowal Post, religious purposes. right at to “the Government 509. This extends instance,” whole, regardless as particular of which branch is work in post, regardless exer challenged action was an of whether the power, spending cise of the post, at 512. be, lit- appealing may
However it bears precedent this reconstruction of Frothingham tle resemblance to purports the cases on which it rest. just standing, and Flast plainly were decisions turned on in- plainly they rejected any requirement of direct notion that the Art. Ill jury by taxpayer is satisfied Government who “that the Federal contends *18 all
“The constitutional proposition provisions are en- by forceable citizen because simply citizens are the ulti- mate beneficiaries of those has no provisions boundaries.” v. Reservists Committee to Schlesinger Stop War, 418 S.,U. at 227. in this case shares a common complaint with deficiency
those Richardson. Schlesinger and Although respond- ents claim that the Constitution has been violated, they claim nothing They else. fail to identify any personal suf- injury a by fered them as of the consequence alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one dis- agrees. That not is an injury sufficient confer standing under Art. Ill, even though disagreement is phrased in has allocating Post, exceeded bounds of the law in largesse.” its at Moreover, although 508. may the dissent’s view lead a satisfy- to result ing many case, in this it is not evident “legal how its substitution of in- terest,” post, at for “standing” understanding enhances “our meaning rights law,” post, under Logically, the dissent must shoulder the of explaining why taxpayers burden standing with have no “legal congressional interest” expenditures possible it except when is allege a violation of the yet attempt Establishment Clause: it does to do so. Nor does the interpretation dissent’s standing adequately explain Schlesinger cases such as dissent, According Richardson.
taxpayer plaintiffs in they those cases standing, lacked not because failed to challenge an exercise of the spending power, they did not but because complain of “the Post, distribution of at largesse.” Government yet And if “continuing stake established his ... disposition Treasury his to which he has contributed taxes,” post, 497-498, right it would seem to he can assert follow that to examine budget Richardson, S., CIA, as in see 418 U. right and a argue pay Reserve Congress Members cannot claim from Government, course, Schlesinger, as in at 211. Of see both claims rejected, have requires been a dem- precisely Art. Ill because onstration of redressable claim that tax that is not satisfied moneys have been spent unlawfully. *19 486 are respondents is that It evident terms.
constitutional of separation principle constitutional committed to firmly in- by not measured is standing State, but church and of the fervor of his advocacy. or interest the litigant’s of tensity sharpens presenta- adverseness concrete “[T]hat at Carr, S., 204, 369 U. antici- Baker v. issues,” tion of commenced one who proceedings of consequence pated is not a substitute for fact; permissible in it has been injured itself.21 injury showing our ear conclusion, we do not retreat from In this reaching on noneconomic bemay predicated that standing lier holdings SCRAP, States S., v. 412 U. at e. United g., See, injury. Data Service v. Processing Orgs. 686-688; Association of that re 153-154. We cannot see simply S., 397 U. at Camp, any kind, economic or an have alleged spondents com standing.22 Respondents sufficient confer otherwise, 21 standing argument be rec- Schlesinger, rejected we should In in interests parties sharply conflicted their ognized because “the adverse S., arguments.” 418 U. supported and were able briefs and views at 225: respondents’ objectives sincerity “We have no about the stated doubt depth
and the of their commitment to them. But the essence requisite . . inter- question possession ‘is . not a of motivation but of is, be, conduct.’ injured by est that or is the unconstitutional threatened to (1952).” Id., Education, Doremus v. Board 342 U. S. 225-226. Processing Respondents rely on our Data statement Association of family may Orgs. person v. Camp, Service “[a] U. give stand spiritual have a stake in First Amendment values sufficient Ex ing Free concerning to raise and the issues the Establishment Clause S. 203 Abington Schempp, ercise Clause. School District Respondents to mean that language [1963].” apparently construe “spiritual person asserting possesses a an Establishment Clause violation bear that stake” sufficient to will not standing. language confer weight. First, of its apart the context language from cannot be read accompanying Schempp, 374 Abington reference to District v. School required Bible laws that Schempp, the Court invalidated of a located Chester plain property County, transfer Pa. The named reside plaintiffs Maryland Virginia;23 their are located organizational headquarters Washington, D. C. learned of the transfer a news They through release. Their claim that has violated the Government Establishment does license to roam Clause provide special country *20 in and to governmental wrongdoing search reveal their dis in court.24 The coveries federal federal courts were simply not constituted of the as ombudsmen welfare. general public reading the schools. Plaintiffs were children who attended the in question, parents. their schools and The Court noted: saying goes practices “It without laws the and here involved can be challenged only by persons having standing complain. to parties . . The . and parents, directly here are school children their who are affected practices laws against complaints which their are directed. These in- surely give to parties standing terests suffice to complain.” Id., at 224, n. 9. comparison
The
Court also drew
with
Education,
Doremus v. Board of
(1952), in
V case ignored unambiguous Appeals The Court of It standing. appears citizen on limitations that enforcement of the conviction done so out have from the exceptions special demands Clause Establishment “ in- ‘distinct allege palpable plaintiff that a requirement if to be redressed the re- likely . . that . himself,’ jury Gladstone, Realtors v. Village is granted.” relief quested Seldin, Warth v. at 100 Bellwood, (quoting 501). from derived comfort precedential The court S.,U. “The underlying justification Flast Cohen: according in Flast it seems, implicit recognition was does create citizen a every per- Establishment Clause citizen, such that right, including constitutional sonal contest under that clause the constitutional- may taxpayers, 619 F. at 262.25 con- 2d, ity expenditures.” of federal view, even more direct. its “statutes curring opinion not have an may to violate the Establishment Clause alleged *21 agency meaning of a Neither the Ad- action within the relevant statute.” Act, enactment, congressional nor other can ministrative Procedure See, g., standing Art. e. requirements lower threshold of under III. Gladstone, Bellwood, 100; Village S., at Warth v. Realtors v. 441 U. Seldin, S., Respondents allege Act creates at 501. not that the do right, Rich- legal standing,” “the Linda R. S. v. invasion which creates D., S., 617, 3, arguing ard that at n. and there is no basis for other standing its existence rules to this case. applicable alters the otherwise majority only thing prevented 25 The this Court believed that openly complaint in acknowledging position from fact this was the that alleged had no standing plaintiffs’ Flast basis for than the other 2d, out, is pointed status. 619 F. at this view 262. As the dissent below plain in Flast simply id., not accord with The the facts. at 269-270. See tiffs and several amici same view strongly urged adopt the Court standing plainly respondents argue for which The Court in this case. not respondents arguing chose to do so. if in that Even were correct pleadings,” in Court Flast “perceived was bound in the limitation 2d, case, F. at no merit we are not and we find so bound this respondents’ standing. vision of impact standing
individual sufficient to confer in the tradi- satisfy at tional sense.” 267-268. To Id., “the need for an plaintiff,” thereby id., available to assure a basis judicial respondents granted standing for be review, should practical because, no one is matter, “as better suited to bring this thus vindicate lawsuit and the freedoms embodied Clause,” id., the Establishment
Implicit foregoing philosophy in the is the that the business correcting of the federal is courts constitutional errors, and merely that “cases and controversies” are at best convenient doing may vehicles for so and at worst nuisances that be dis- pensed they with when become obstacles to that transcend- philosophy place ent endeavor. This has no in our constitu- palatable tional scheme. It does not become more when the underlying merits concern the Establishment Clause. Re- spondents’ standing implicitly presump- claim of rests on the typically tion that violations the Establishment Clause will standing not cause sufficient to confer under the assumption “[t]he “traditional” view of Art. III. But respondents standing if no sue, have no one would have standing, standing.” Schlesinger is not a reason to find Stop Reservists Committee to the War, 418 U. standing requirement This view would convert into a only must be observed when satisfied. we Moreover, are unwilling injured parties to assume that are nonexistent sim- ply they joined respondents because have not in their suit. averages standing. law a substitute for accept respondents’
Were we to claim of principled confining case, there would be no our ex basis ception litigants relying on the Clause. Establishment *22 Ultimately, exception ju that derives from the idea that power requires nothing dicial im its than more for invocation portant litigants.26 injured issues and able The existence of 26 Were we recognize consisting to standing “injury” premised on an “ solely alleged of an gov- to ‘personal right’ violation of a a constitutional bring becomes irrelevant. might suit parties wish to who departure unwilling a such countenance to we are Because power Ill, in Art. judicial contained on limits from the Appeals reversed. is judgment of Court
isIt so ordered. Marshall Justice with whom Brennan, Justice dissenting. join, Blackmun Justice standing jurisdictional plaintiff’s matter Art. Ill is a A question” to be resolved before a “threshold and thus courts, turning Linda more “substantive” issues. See to attention 614, 410 U. But conse- R. Richard S. D., v.S. questions impulse quence decide difficult of sub- is an to there opinions purporting obliquely in of to the course stantive law nothing what the Court labels more than determine do “standing”; opinions, phenomenon of
this accounts for merely today, obfuscate, that rather such as the one tend meaning rights understanding of the of inform, than our by-product practice that the law. The serious of under responsibility disregards its constitutional the Court by failing acknowledge protections afforded when, “standing slam the courthouse Constitution, it uses against plaintiffs door to full consideration who are entitled their on the claims merits.”1 opinion example of this unfortu- the Court is a stark resolving obscur-
nate trend of while cases at “threshold” id,., ernment consist- principled does not religion,” establish ency challenge execu- recognition would dictate respondents’ every govern- tion capital right to a personal sentence on the basis of standing to impose ment that punishment, does not cruel and unusual right challenge personal every program affirmative-action on the basis laws, to a to choose government deny equal protection that does not in the but two commands among many possible examples as there are Constitution. Collins, (1970) (Brennan, concurring Barlow J., dissenting). result and
491
and interests at stake.
rights
underlying
the nature of the
ing
prudential
on the blend
con
The
waxes eloquent
Court
to create our
that combine
mis
stitutional considerations
But not one word is said
“standing” jurisprudence.
guided
that the
seeks
right
plaintiff
Establishment Clause
about the
of our
its
recitation
de
pat
And despite
enforce.
the sheerest
fails, except by
form
cisions,
utterly
the opinion
case is unlike Flast
v.
dixit,
why
Co
explain
ipse
and is controlled instead
(1968),
But on the na- turns existence of Art. Ill “often Seldin, ture and source of the claim asserted.” Warth nor “causation” is injury” “palpable Neither at 500.2 *24 There is much the way meaning. unvarying term of a “common-law traditions” that understandings” “mutual In addition, inquiry.3 the definitional necessarily guides a Congress, may impart Constitution, by legislation to the terms meaning “injury” unique, occasion and on new, or constitutional con- statutory in particular and “causation” a fundamental mistake when it de- makes The texts. Court satisfy has failed to the two-pronged a plaintiff termines that test or indeed other test, “standing,” “injury-in-fact” whether the Constitution or a stat- determining first without a cause of action for and creates redress injury, ute defines the circumstance presented injury, precisely that Court. in- that a himself person believing
It of course may happen action will be by government in some obscure manner jured under the constitutional or statu- held to have no legal right he and will not be relies, permitted tory provision upon It “rights.”4 to of the invasion of another complain person’s 2“Congress may creating legal rights, enact the invasion of statutes standing, though which creates even no would exist without D., statute.” Linda R. v. Richard 614, 617, S. 410 n. 3 U. S. Constitution, could, did, Framers the same of course exercise power. 3Justice Frankfurter in the definitional identified two sources to assist inquiry concerning injury: litigant
“A ordinarily action of a standing challenge governmental has a to that, cogni by private right sort if taken action person, create a would by zable created may courts. interest standing Or be based on an Refugee Anti-Fascist Committee Constitution v. Joint or a statute.” omitted). McGrath, (citations (1951) 123, 152 (concurring opinion) S. In identifying private law types injuries recognized might that be Government, actions as a Frankfurter against basis for Justice suits Id., 152-153, 157-160. felt free to principles draw on of “common law.” 4 course, Of even when generally we suits permit persons press federal injury complained injuries that a obviously realm of of is not within the particular guard statutory designed to provision was constitutional rhetoric of “standing” another matter employ
is quite is interest clearly protected whose to deprive person, his own rights have law, prove of the opportunity It is precisely dissembling enterprise been violated. Court indulges today. that the limitation of Art. Ill controversy” overrides
The “case and To of the Constitution.5 construe that Ar provision no other “ ‘to the class for whose sake con to deny [a] ticle ” v. United States, Jones given,’ protection stitutional New York ex rel. Hatch (1960), quoting U. S. Reardon, (1907), turns the simply Con III on head. Article designed provide stitution its *25 standing.” “third-party that circumstance one of against. We term situations, us to requires determine whether in- such the Constitution sufficiently “palpable” contemplation within jury alleged is to fall of has suffered plaintiff contemplation If in fact within III. of Art. statutory but is not Ill, obviously particular of the within the reach Art. claim, provision upon plaintiff we then which the founds his constitutional plaintiff bring prudential bear to determine whether considerations Duke v. Carolina Power Co. maintain his action. should be allowed to See (1978). Inc., Study Group, 59, In eval- Environmental 80-81 definition, spe- uating “third-party standing,” are, by without a claim of we direction, free to congressional and are thus draw cific constitutional or upon the upon peculiarly judicial a wisdom in character —to elaborate weigh consider- meaning constitutionally cognizable injury, of and then to intent, policy gleanings along legislative ations of with and constitutional permitted to maintain plaintiff in order to determine should be whether his claim. concerns understanding practical prudential
With the
that “the basic
constitu-
underlying the
generally
doctrine
satisfied when
are
met,” id.,
interposed a bar
only
requisites
81,
rarely
tional
are
we have
are
“third-party
violations
standing,” particularly
constitutional
when
atti-
permissive
alleged.
Indeed,
only
generally
firm exception
to this
Id., suits.
third-party
taxpayer
tude toward
suits is
on
the restriction
79-81.
is to be
particular person
When the
makes
Constitution
it clear that
person
protected
action, then
particular
from
form government
infringed, then
“right”
action;
right
has a
to be free of that
when
III.
Art.
injury,
meaning of
personal stake,
there is
and a
within
persons enjoying rights
hospitable
in
under the
forum which
rights. How are we to
could assert those
dis-
Constitution
right
particular person is to be afforded a
cern
whether
not,
Framers did
of course,
action in the courts? The
em-
vocabulary
standing.
ploy
But this much is
the modern
Rights surely
Bill of
of the
intended that
clear: The drafters
legacy
enjoy rights
particular
of their
should
beneficiaries
legally
Virginia
in courts of law.6 See West
enforceable
Bd.
Barnette,
624,
Education v.
U. S.
problem
Imind,
observations
turn to the
With these
case in particular.
taxpayer standing
general,
and this
II A
Frothingham
(1923),
Mellon,
provided grants agreed cooperate financial to States that programs designed to reduce infant and maternal mortal ity. Appellant Congress, enacting contended that program, authority had exceeded its I, under Art. and had authority intruded on reserved to the States. The de Court Frothingham’s scribed Mrs. claim as follows: plaintiff alleges “[T]his . . . that she is a though United States; and her contention, clear, *26 appropriations seems to be that the effect of com- the plained of will be to increase future tax- the burden of thereby property process ation and take her due without right taxpayer enjoin of law. The of a to the execution 6 noted, As James Madison if rights “incorporated of into the bill were Constitution, independent justice tribunals in a of will consider themselves peculiar guardians manner the impenetrable of rights; they those be an will against every bulwark assumption power Legislative of or Execu the tive; they will naturally be upon rights led every to resist encroachment expressly stipulated rights.” for in of Constitution the declaration 1 Cong. Annals of ground appropriation it is act, on that
of a federal illegal purposes, for result in taxation will invalid and passed upon this Court.” 262 S.,U. has never been historically in that it had treated the conceded Court application taxpayer municipal in the of of terest sufficiently municipality’s direct immediate to funds as prevent injunctive misuse. Ibid. Brad relief warrant (1899), per in which S. 291 the Court v. 175U. Roberts, field mitted present taxpayer an Establishment federal money challenge use of for construc to the federal Clause buildings hospital held Columbia, the District tion of appropriate treat the within rule because it was to fall municipality.7 But dis as a the Court District Columbia against Frothingham’s tinguished action the United Mrs. States: taxpayer
“[T]he the United relation of a States very different. interest Federal His Government moneys Treasury partly tax- realized from — partly mil- ation from shared with other sources—is comparatively lions of minute and indetermina- others; is upon any payment ble; taxation, and the effect future fluctuating uncertain, funds, out of the so remote, appeal preventive no basis is afforded an powers equity. of a court of attempt As an of Columbia taxpayer living to afford a the District rights taxpayer municipality, with the same the Court’s living as a in a on fed persuasive treatment of But if the ban has some force. Bradfield origin, taxpayer eral standing had be of constitutional been considered to analogy Appellant no jurisdictional could have sufficed to defect. cure the Columbia, but alleged had not that he was a the District of taxpayer of resi States and a United rather he was a “citizen and added). dent (emphasis District of Columbia.” 175 Roberts, Although H. against Ellis court below deemed to be the suit District of not as Treasurer of the Treasurer of United States but as Bradfield, Columbia, stand (1898), Roberts App. D. C. 459-460 ing plainly appellant’s taxpayer status. rested on federal *27 496 any likely produce statute,
“The administration imposed upon a vast number of taxation to be additional liability taxpayers, several is of whose indefi- the extent essentially constantly changing, is a matter of nite and public S., individual concern.” U. at 487. and not of judicial noting importance restraint, Court After concluded: [judicial] power party invokes the must be
“The who only not statute invalid but that able to show immediately danger in he or is of sustain- has sustained ing some direct the result of its enforcement, merely way and not that he suffers some indefinite people generally.” Id., common with Frothingham’s reasoning princi- remains obscure.8 The difficulty pal interpretive lies the manner Frothingham language policy chose to blend the with seemingly jurisdiction. absolute statements about For ex- ample, significance the Court commented with on the sheer taxpayers might number of who have raised a claim similar Frothingham. hardly that of Id., Mrs. at 487. Yet it can be argued plain- that the Constitution bars from federal court a injury merely tiff who has suffered others are simi- because larly aggrieved. “[SJtanding simply is not to be denied question Frothingham apparently open remains whether stated a prudential Duke Power limitation or identified Ill an Art. barrier. See Co. v. Inc., Carolina Study Environmental 79, 25; Group, n. (1974) (Pow United States Richardson, 196, v. 166, 181, n. 18 U. S. ell, J., concurring). Flast Co It generally agreed at the time of hen, 83, 92, (1968), clearly n. view of Justice Har id., dissent, lan in prudential the rule reflected stated policy considerations, Perhaps case is constitutional limitations. usefully most rights legal understood as a “substantive” declaration of of a respect pru with coupled with a spending, Government dential restriction taxpayer’s par on the third ability raise the claims of ties. Under however, Frothingham construction, way give must to a taxpayer’s suit brought under the Establishment Clause.
497 injury.” many people same United the States suffer because (1973). equally And it is clear 687 v. 412 U. S. SCRAP, injuries distinction between no draws that the Constitution comparatively large, The are small. and those that that are less no valid is constitutional more dollars line between Education, Board 330 U. S. Everson v. measure. Cf. of (1947) only (Rutledge, dissenting). The distinction J., 48-49 justice guaranteeing recognize to all can that a Constitution injury and none at all.9 one some is between taxpay- Frothingham the of also stressed indirectness the standing, injury. Ill if as matter Art. But, er’s a of sufficiently relationship length certain, of causal Seldin, See Warth v. 422 U. causal is irrelevant.10 chain taxpayer of a in the out- at 505. The financial stake federal challenging allegedly an federal come of lawsuit unlawful a expenditure qualitatively from that a state is not different of attacking taxpayer expenditure. municipal a More local depend- importantly, taxpayer is suffered payment. concept tax The of tax- ent on the extent his necessarily recognizes continuing payer injury stake Treasury taxpayer disposition he in the 9 Flast, Treasury Indeed, noted in the federal stake major corporate taxpayers there was not in sense trivial. Indeed Treasury program involving expenditure a time federal an from the when a in the very million likely billion would result in an $10 $150 increase Hearings on major corporation tax bill of a such as General Motors. See Rights S. 2097 before the of the Senate Subcommittee on Constitutional (let (1966) 2, p. Judiciary, Cong., Sess., pt. Committee on the 493 89th 2nd 895, 917, Ervin); L. Note, ter from K. C. Davis to Yale J. Sen. Sam 69 n. impact taxpayer’s Even if actual were deemed pocketbook on the standing, test of causal connection taxpayer the cases which a tenuous for basis injury alleged between the formed the challenged and the action challenging denying taxpayer plaintiffs standing do not control the case of Kentucky Wel Eastern Simon v. expenditure. Compare a Government Seldin, Rights Org., 426 U. (1976); 422 U. S. Warth v. S. 26 fare Power Duke (1975); D., R. (1973); Linda S. Richard with right has contributed his and his taxes, have those funds put Frothingham nothing to lawful uses. Until there was precedents concept, comfortably our to indicate that this so applied municipal taxpayers, was inconsistent with the rights framework of and remedies established the Federal Constitution. explanation limit on federal “stand-
ing” imposed by Frothingham sought must be in more sub- dissenting stantive realms. Justice Harlan, Flast, came *29 identifying premise close I to what consider the unstated Frothingham rule: taxpayer’s complaint “[The] only allega- can consist of an public shortly tion that pended funds have been, or be, will ex- purposes for inconsistent with the Constitution. taxpayer any portion The previous cannot ask the return of of his payments, prevent
tax cannot the collection of any existing adjudica- tax debt, and cannot demand an propriety any particular tion of the level of taxation. payments general purposes His tax are received for the upon proper receipt, United States, and are, lost general in the revenues.” 392 S.,U. at 128.
Co. v. Carolina
Inc.,
Study
Environmental
Group,
supra; and United
SCRAP,
States v.
In a Government vein, similar Flast that tax- payer only disagreement by taxpayer suits involve with the uses to tax revenues were committed, and that the disagreements such resolution of entrusted to branches of judiciary. other the Federal Government than the Id., arguments 98. The both the Government and Justice they phrased, language are be, Harlan must not in the rights” “standing,” “legal “justiciable but issues.” Frothingham may solely rule be seen as founded on prudential judgment by precipitate the Court that unnecessary coequal in the interference activities of a branch government Alternatively, Frothing- should be avoided. may resting upon ham be construed as an unarticulated, con- stitutionally Congress’ power barrier established between power spend, analyti- tax and its which barrier makes it cally impossible through an mount assault on the former challenge present pur- to the latter. But it is sufficient poses say Frothingham held that federal continuing legal Treasury no has interest the affairs of the analogous continuing ato shareholder’s interest the con- *30 corporation. duct a provenance, general Frothingham its
Whatever the rule of displays judgment: circumspect sound in Courts must be dealing power taxing unnecessary with the in order to avoid Legislative intrusion into the functions of Executive and Congress’ purpose taxing ordinarily Branches. in not will validity operates affect the tax. uncon- Unless the tax stitutionally, g., Pennsylvania, e. see, v. 319 U. S. Murdock (1943), taxpayer may object of his the use not Frothingham’s argument, funds. Mrs. of tax the use purposes funds for Constitution unauthorized provide process, amounted to a her violation of due did required legal with the Due Process because the interest taxpayers protect Clause of the Fifth Amendment does not against liability. Cohen, increases in v. tax See Flast Frothingham’s S.,U. reduced Mrs. claim was thus in their legislative pre- interest of “the States’ to an assertion be claim that could properly ibid., third-party rogatives,” con- a different sort of faced in Flast the Court But barred.11 to retreat from compelled itself found claim, and stitutional have no that taxpayers in Frothingham assertion the general To under- of their tax payments. in disposition interest in the necessarily gave way bar Frothingham!s why stand we must examine the claim, Clause face of an Establishment a claim. such making aby taxpayer asserted right B recognized this Court 1947, nine Justices definite restriction very does impose Clause
Establishment held Everson Board in to tax.12 Court on the power reli- that the “‘establishment of Education, S., 15, 330 U. ” means at least this: the First Amendment clause of gion’ restrictions, have we respect to enforcement constitutional With may object to elegant persons overly defining the class of who not been minimum particular government Only action. the constitutional forms of recently . . required. As the noted: “We . fact has been Court suits, that, accept taxpayers’ cannot the contention outside the context of something injury in fact a sub litigant must demonstrate more than judicial redress requested prevent likelihood that the relief will or stantial Study injury.” the claimed Duke Power Co. v. Carolina Environmental Inc., Group, Schlesinger v. Reservists Committee 79. See War, Nevertheless, sug I Stop do not U. S. n. 15 gest Frothingham be that the on suits should limitation federal taxing power abandoned. The and the barrier it evinces between spending power, whether it construction be deemed one of constitutional judicial prudence, nature of conceptions reflects about the fundamental legislative process, is, any event, firmly our cases. now embedded That necessarily pierced, however, by barrier is Clause an Establishment claim. Reed, Black, joined Vinson,
12 Justice Justices Chief Justice Douglas, chal *31 Murphy, that the majority wrote for and concluded lenged activity one dis support religion; Jackson wrote a Justice joined dis by Rutledge sent Frankfurter; Justice also authored Justice sent, in Jackson, joined. Both Frankfurter, Justices and Burton clearly power dissents to tax. affirmed this restriction on constitutional any large or amount, small,
“No tax can be levied to support religious activities or institutions, whatever they may they may adopt, called, be or whatever form practice religion.” Id., teach or at 16.
The Members of the Court could not have been more ex- plicit. rights our is to “One of basic be free of taxation to support transgression of the constitutional command that respecting the authorities make no ‘shall law an establish- religion, prohibiting ment of or the free exercise thereof.’” (Jackson, dissenting). “[AJpart at 22 Id., J., from efforts to inject religious training or exercises and sectarian issues into public only maintaining schools, serious threat to complete permanent separation religion and civil power through which the First Amendment commands is taxing power support religion, religious use of the estab- having religious lishments, or establishments foundation special religious whatever their form or function. . . . [M]oney given taken taxation from one is not to be used or support religious training another’s or belief, indeed (Rutledge, dissenting). Id., one’s own.” at 44 J., determining challenged whether the law Everson was “respecting religion,” one an establishment of did Court meaning not fail to examine the historic of the constitutional language, “particularly respect imposition with Rutledge pointed Id., taxes.” at 8. For as Justice in his out provision closely dissent: “No of the Constitution more tied given generating history content its than the reli- gious clause of the First the re- Amendment. It is once product history.” fined and the Id., terse summation of that history repetition present That bears a brief context.
Many early of es- settlers of this Nation came here to cape tyranny gov- compelled support of laws that ernment-sponsored punishments churches and that inflicted pay for the failure to Id., at establishment taxes and tithes. 8-9. But the inhabitants of soon dis- the various Colonies *32 oppressive practices capacity of the played the to recreate minority again persons they fled. Once had countries again persons persecuted, sub- such were faiths were governments jected tithes and time the colonial —to —this Reynolds religion. support at n. Id., 8; taxes for 162-163 States, U. S. United commonplace practices so as to shock became “These feeling freedom-loving into a colonials abhorrence. pay imposition and to of taxes to ministers’ salaries The property churches and church and maintain build feelings indignation. It was their these aroused expression Everson, in the First Amendment.” found omitted). (footnotes 11at adoption 1784-1785, Constitution, In before the continuing those who to reli- conflict between saw state aid gion expression “commonly the natural shared” reli- as but gious support sentiments, and those who saw such as a threat very government, in notion of civil culminated the bat- fought Virginia Delegates in the “a bill tle House over establishing provision for teachers of reli- the Christian gion.”13 Reynolds, supra, at 162-163. introduction of The assembly prompted state that bill Madison James prepare Remon- circulate his famous “Memorial and Against Religious legis- imploring Assessments,” strance complete separation of lature to establish and maintain the religion authority, reject and civil and thus to the bill. Legislature, rejected by Virginia end, bill was place securing and in its Madison the enactment succeeded Establishing Religious of “A Bill for first intro- Freedom,” Virginia Assembly years duced earlier General seven S., Thomas Jefferson. 330 U. 163;Everson, bill, to the dis Remonstrance, appended and Madison’s are both Id., in Everson. senting opinion of Justice Rutledge at 63-74. opinion); (majority (Rutledge, id., at 35-40 11-13 J., dis- played senting). Madison and Jefferson Because such lead- adoption ing leading roles the events of the First opinions repro- the Everson did Amendment, hesitate to *33 Virginia partial primary duce of their bill as a the text source objectives, understanding protections, for the afforded by phrasing the more concise of the Establishment Clause. supra, Reynolds, supra, at Everson, 12-13, 28; see repeating from bear 163-164. Extracts that bill also in the present preamble provided, part: The context. compel
“[T]o money man to furnish contributions of for opinions propagation the he disbelieves, is sinful tyrannical; forcing support that even him the religious persuasion, depriv- or that teacher his own ing liberty giving him of the comfortable his contribu- particular pastor, tions to the whose morals he would pattern.” Hening’s make his Stat. operative language emphatically
Its stated: compelled frequent support
“That shall no man be or any religious worship, place, ministry whatsoever, or nor shall be enforced, restrained, molested, or bur- body goods, thened in his or nor shall otherwise suffer on religious opinions account of his . . .” Id., or belief. 86.14 Rutledge up
Justice summed in the Madison’sviews follow- ing terms: phase unrelentingly
“In no was he absolute than more opposing support state taxation. Not even or aid pence’ ‘three exacted from contribution thus to be was 14Although the pronouncement bill is some of a small merely sense legislative body, temporal proscription its to transcend was intended bounds. The enactment concludes:
“And though people we for well know enacted Assembly, that this ordinary purposes power restrain the legislation only, no have Tithes had life- been the a purpose. such citizen for and after before other compul- of establishment
blood his Madison and coworkers made no disappeared. sions to the complete separation abridgments exceptions created. Their they objec- and state] church [between It to any tithes. was tithes what- to small was not tion a small ‘If lawful to tax for reli- impose it were soever. way would for oppressive pave the admission gion, amount, but ‘the of the assess- principle levies.’ Not (citation Everson, at 40-41 was wrong.’” ment omitted). of this history, one of clear, light pri
It is Establishment Clause was to prevent mary purposes religious moneys purposes. use of tax on intended beneficiary prohibition the direct and This basic understanding aid *34 religion.15 financial of the Clause the Court explains why Establishment meaning merits, claim on Everson, appellant’s in while rejecting own, succeeding assemblies, powers our equal acts of constituted with to therefore this act to irrevocable of no effect and that to declare be would be declare, hereby law; yet declare, rights are in we free to and do that the rights mankind, if be asserted are of natural and that act shall operation, act passed repeal present, hereafter narrow its such or to infringement right.” Hening’s will be an of natural Stat. 86. By incorporation principles Rights, was trans- its the Bill of the bill lasting mere hortatory expression, guarantee formed from a into binding rights against the Government. position grant of a tax respect with to a Government exemption religious posi to a institution is different from the qualitatively taxpayer objecting tion of a subsidy. to a subsidy
“A involves the direct monies to the subsidized public transfer of enterprise and uses An ex- taxpayers resources exacted a whole. from emption, hand, on the ex- other involves transfer. It assists the no such empted enterprise only venture passively, relieving privately funded of the of paying words, burden In of direct sub- ‘[i]n taxes. other case sidy, the state forcibly diverts the believers and nonbeliev- income of both churches,’ merely ers to exemption, while the case of the state re- ‘[i]n an frains from diverting independently generated by to its own uses income
perceived presented appellant the issue there as it did. The taxpayer,” capacity “in sued his as a district 330 U. S., 3, challenging passing the actions of the Board of Education in parents providing resolution reimbursement to for the cost of transporting parochial seeking children to schools, their Appellant’s to have that resolution “set aside.” Establish precisely ment Clause claim was that the “statute . . . forced pay help support inhabitants to taxes to and maintain” church Id., schools. It seems obvious that all the Justices participated agreed who Everson would have with Justice question presented: Jackson’s succinct statement of the “Is it complainant pay carry constitutional to tax this the cost of ing pupils specified to Church schools of one denomination?” (dissenting opinion). Id., at Given this view of the issues, fairly taxpayer alleged injury could it be doubted that this precisely sought the form that the Establishment Clause make actionable?16
C
(1968),
taxpayers
Cohen,
Flast v.
under the Jersey taxpayers Establishment Clause. New that case two challenged Jersey a New law teachers to read public that directed school passages selected Bible, declaratory judgment from the that such seeking a a law violated the that the Establishment concluded Clause. The Court taxpayer lacked standing: allegation “There is no by any separate tax activity supported that this is Department’s the specifically Act of 1965: Education ary that be under Act to distributed funds allowing practice schools. religious Appellants instruction to finance used vio- funds for such purpose federal use of that the urged the Free Exercise Clauses of and the Establishment lated that use of a declaration Amendment, sought First Act, or that by authorized not funds was federal the Act was “unconstitutional authorized, was extent use sought an to bar injunction further void.” Appellants funds for the al- expenditure any from approving appellees Id., at 86-88. The purposes. unconstitutional legedly absolute barrier seemingly stood as a Frothingham rule held, The however, the claim. Court maintenance of could be overcome by any Frothingham barrier of a test. “nexus” requirements two-part claim that met both Flast were unaware of The Justices who participated federally recognition cognizable the Court’s continued local or when a seeks to chal controversy” “case municipality’s use of a funds— as unconstitutional lenge any paid any particular appropriation for from or it adds sum what- or conducting given ever to the cost of the school. No information paid by kind of appellants what taxes are and there is no averment that reading are, they pay taxpayers they Bible tax or increases do that as will, Id., possibly pocket can be out of because of it.” difficulty had distinguishing The Court no Everson: “Everson appropriation showed measurable of school- or disbursement solely funds complained district occasioned of. This com- the activities plaint does not.” 342 U.
The “standing” difference between the two cases is relevant to taxpayers generally and especially taxpayers asserting most claims under the Clause, Establishment under Estab- for it is clear that even taxpayer’s lishment protection Clause the use his funds against was against and not government the conduct of distinction generally. between Doremus may phrased alternatively: and Everson Everson be injured in comprehended Clause, a manner the Establishment Doremus was not. *36 gone unquestioned propriety course, in had, of which aware as well of the rule
Everson.17 The Court was
stated
(1952),
Education,
It is that the test of at once formulated by sought developing Court Flast to reconcile the doc- taxpayer “standing” trine of with the Court’s historical un- derstanding that the Establishment Clause was intended to prohibit using the Federal Government from tax funds for religion, the advancement of and thus the im- constitutional perative taxpayer standing brought pursu- in certain cases two-pronged ant to the Establishment Clause. The “nexus” by despite general language,18 test Court, offered its anomaly allowing municipality’s by challenged actions to be taxpayer local Clause, federal court as a violation of the Establishment applicable Amendment, made to the States virtue of the Fourteenth exempting while Government, taxing power the Federal whose of the use religion in aid of target adoption the Establish Framers’ Clause, ment also apparent must have been to the Court. 18 “The mind, test was formulated with but the Establishment Clause wisely the Court sought phrase principle general for in it stood terms:
“We have noted that the Amendment Establishment Clause of the First specifically I, does limit the Art. taxing spending power conferred § 8. Whether the can be specific Constitution limitations contains other only However, determined in the context whenever such of future cases. specific found, limitations are a clear stake taxpayer we believe a will have taxpayer as a in assuring they by Congress. Conse- are not breached quently, we hold that Article with will have consistent III to invoke judicial power congressional federal alleges he when *37 standing plaintiffs of al- of determinant as “a understood best challenge alleged taxpayers only injury viola- leging who as of the Free Exercise Clauses and of the Establishment tions general statement of stand- not as Amendment,” and First Stop Schlesinger Committee to ing v. Reservists principles. (1974) dissent- J., 418 U. S. War, (Brennan, explains ing); The test what forms at 102. S., 392 U. Flast, alleging may someone governmental attacked be action of possibility ruling out the only taxpayer status, and, without similarly provi- history might founded another reveal that why explains Clause claim is treated an Establishment sion, differently the Federal assertion that Govern- from other allocating the law its lar- bounds of ment has exceeded gesse. required, Doremus, Flast with Thus, consistent taxpayer prong demonstrate a test, that the of its the first logical taxpayer type his status and connection between Appellants’ legislation Flast, of attacked. program grants challenge to educational institutions to a requirement. clearly 103. S., 392 U. at satisfied this first prohibition prong, tax- with the As the second consistent Frothingham, appel- payer claims of the kind advanced required sta- a connection between their lants were to show alleged. infringement precise nature of the tus and difficultymeeting They no Flast, at had requirement: agreed the Establishment Court that jealously protects taxpayers their diversion of Clause from support religion through of the funds to the the offices Federal Government. at 103-104. Id., those con- taxing spending derogation action under the clause is taxing provisions stitutional of the operate the exercise to restrict be spending power. cases would taxpayer’s allegation in such money specific con- being spent his tax extracted and violation protections power.” stitutional against legislative such abuses S., at 105-106. the Flast test we years yet to
In the since have announcement of recognize tax, I know of a similar Congress’ power restriction on opinion in Nevertheless, none. joined like the in the Court Justices who Flast, I remain reluctant possibility. to rule out the “announced,” the Court id., The nexus test necessary continuity sought prior with to maintain 102-103, principles guide involving future forth cases cases, and set depart standing. prin- But Flast did not from the ciple judgment about should be made with- that no understanding rights of the Id., out a fundamental issue. two-part supply Flast test did not at 102. The the rationale exposition: decision, but rather its That Court’s ra- understanding supplied an tionale was nature of the power imposed by government restrictions on the Constitu- of those tion and the intended beneficiaries restrictions. *38 may Congress can tax for almost It be that reason, far I is, for no reason at all. There so as have been able to constitutionally imposed discern, but one limit on that au- thority. Congress money support cannot use tax to encourage religion. to “the church, or That is forbidden ex- Education, action.” Everson v. Board at 45 added). (Rutledge, dissenting) (emphasis J., Flast, See (Fortas, concurring). at 115-116 In absolute J., history terms the of the the First Establishment Clause of History Amendment makes it clear this clear. also makes taxpayer singularly “proper appro- that the federal is a priate party jurisdiction” to to chal- invoke a federal court’s lenge largesse a federal bestowal of as a violation every, Establishment tax- Clause. and indeed federal Each, payer precisely suffers Establishment that the guards against Clause directs when the Federal Government citizenry pocketbooks that funds be taken from the placed ministry. into the coffers of the taxpayer objection
A to such cannot be raise his asked to Apart pays use of his funds from at the time tax. he his unlikely circumstance in announced which the Government religious particular levy advance that used would be being taxpayers they hardly subsidies, were could assert that injured support actually re- until to a lent its Government ligious require him venture. Nor to would it be reasonable charged collec- address his claim with the to those officials officials would be without Those taxes. tion of federal redress —there is no practical appropriate means to provide from taxpayer’s money complaining way segregate purpose. Surely, then, the religious devoted being at the time that he learns of the must have Clause violation to seek Establishment alleged Government’s to halt the and intolerable continuing in order relief equitable his and his conscience, constitu- on his pocketbook, burden tional rights.
Ill the Court history, attempts distinguish Blind to case from Flast from our wrenching snippets language under by perfunctorily applying language opinions, of Flast’s color of the first nexus test. The prong two-part thus are produced tortuous distinctions at best: at specious, are to our constitutional worst, they pernicious heritage. from Flast the Court finds this case different First, be- is not a con- cause here the “source of [plaintiffs’] complaint gressional action, but a decision HEW to transfer a parcel property.” Ante, added). of federal This (emphasis Flast in- attempt distinction cannot withstand scrutiny. volved a to the actions of the of Edu- challenge Commissioner cation, and other officials of HEW, funds under disbursing *39 and of 1965 to “re- Elementary Secondary Education Act and sectarian” in- ligious schools. Plaintiffs disclaimed “any to tention] ... all . . . Act.” challenge under programs Flast, defendant- Rather, claimed that they administrators’ was not approval such expenditures authorized by the or the ex- Act, to the extent alternatively, penditures were “unconstitutional authorized, the Act was Ibid. and void.” In the chal- case, present respondents lenge HEW’s grant of to the Federal property pursuant Property 1949, seeking Administrative Act of Services enjoin HEW “from and other making property this grant to the so will violate long [defendant] as such a grant Establishment Clause.” It be that the Court App. may is concerned with the re- adequacy pleading; of respondents’
spondents many have in so not, words, asked for a declara- Property tion that the “Federal and Administrative Services Act is unconstitutional and void to the extent that it author- complaint I izes HEW’s actions.” would not construe their narrowly. so fundamentally,
More no clear division can be drawn Legislative context between actions of the Branch and those of the Executive Branch. To be sure, First Amendment phrased Congress’ legislative authority; as a restriction on only assigns this is natural since the Constitution the author- ity legislate appropriate only Congress. But it expenditure is difficult to conceive of an for which the last governmental implementing directly legisla- actor, either acting scope legislatively delegated will, tive within the authority, is not an Executive Branch official. The First regardless Amendment binds the Government as a whole, particular which branch is at work in a instance. purported The Court’s second distinction between this case equally unavailing. majority and Flast is The finds it “deci- Property sive” that the Federal and Administrative Services Congress’ power Act of 1949 “was an evident exercise of Property under the Clause, Art. IV, §3, 2,” ante, 480, cl. while the Government action in Flast was taken Art. I, under § 8. The Court relies on United States v. Richardson, (1974), Schlesinger U. S. 166 v. Reservists Committee Stop (1974), support the War, 418 U. S. 208 the distinction noting between the two Clauses, al- that those cases involved leged § requirements deviations from the cl. 7, of Art. I, respectively. I, and Art. §6, cl. defect each case allege was not, however, the violation of failure to Spending taxpayers Clause; cases rather, those complained had not lar- distribution of Government gesse, requirement and thus failed to meet the essential taxpayer standing recognized in Doremus.
It can make no constitutional difference in the case before *40 petitioner us whether the donation to the the here was grant facility, form of a cash to build a Tilton v. Richard- see 512 gift nature of a of prop-
son, (1971), 403 672 U. S. That this is a mean- built. already facility including erty Tilton. In that tax- case, illustrated distinction is ingless to the fact that the to object afforded were payers if assurance that adequate received had not Government educational was facility use as an for that it financed property full value it would receive uses, to religious later converted The com- requires. the Constitution for the property, at issue is property that, although here is precisely plaint the Government a sectarian purpose, used for actually being full value demanded, payment.19 nor received, has Clause or the Property to the pursuant Whether undertaken Clause, of the Establishment the breach Clause, Spending breach, to that is pre- the taxpayer relationship the same.20 cisely
19 initially purchased property at issue was It is uncontested here that the improvements. funds, of million federal with tax and bears the mark $10 ap market value was petitioner, At time of its fair its transfer HEW, 619 Dept. million. Americans United v. proximately $1.3 (CA3 1980). F. 2d clearly Property Administrative Act of Federal Services for that, received requires possible, whenever fair market value is to be S. C. property pursuant provisions. See 40 U. transferred to its 484(e)(3)(G). 484(e)(1), sale, lease, dispo- §§ any or other Proceeds “from surplus property, Treasury as miscella- sition shall be covered into the 485(a). receipts § neous . . . .” 40 U. S. C. including provides, however, property, The Act build- “surplus that real ings, may designated fixtures equipment thereon” be situated necessary use.” “school, classroom, HEW as or other educational 484(k)(l). “nonprofit § U. S. C. property may Such be transferred 484(k)(l)(A). price of fixing § educational institution.” 40 U. S. C. may property, such Secretary required to consider benefit U. S. C. accrue to the property. United States from the use 484(k)(l)(C). college, § By failing petitioner require any payment from Secretary apparently the United States determined that the benefit if from Tilton exceeded the fair entirely market clear value. But it is facility is and was the Government purposes, used for sectarian required to obtain commences. full market time such use value at the less it as The Framers of the have viewed First Amendment could not by his objectionable used were tax funds to learn that his
513 HH <1 to tñe Framers of understanding hostile the Estab- Plainly and Flast’s enforcement of that Clause, lishment understand- vents that under the hostility guise the Court of stand- ing, the courthouse door against plaintiffs “to slam who ing, [as entitled to full the Framers are intended] consideration of Barlow their claims on the merits.” Clause] [Establishment Collins, (1970) 178 (Brennan, v. 397 U. S. J., concur- I dissenting). Therefore, result and dissent. ring Stevens, Justice dissenting. III I, II, Parts of his dissenting opinion, Justice
Brennan demonstrates that respondent have taxpayers mount an Establishment Clause standing challenge against the Federal Government’s transfer of worth property $1,300,000 to the Assemblies of For God. the Court to hold purchase property, church, Government to construct prop- and deed the erty order, religious to a than providing to find his Government the funds to a church undertake its own construction. So far as the Establish- position concerned, ment Clause and the are the situations interchangeable. Surely are perceived James Madison no nice distinction grant between a of grant funds, land and a of provid- when he vetoed a bill ing certain land to a church: in reserving parcel
“[T]he bill a certain of land of the for the United States use of said comprises [church] principle precedent appropria- for the tion of funds of the support religious United States for the of use and societies, contrary to the article of the Constitution which declares ‘Congress shall make no respecting religious law establishment.’” Richardson, J. Messages Papers of the Presidents Congress Nor perceived has appropriation of a distinction between an money and an appropriation property. example, Congress of in 1896 For included its Appropriation Act for a statement the District Columbia declaring it “to policy be the of the United the Government States make no appropriation money purpose founding, property or for the maintaining, aiding by services, otherwise, or payment expenses, or any religious church or denomination, society which is institution or Lemon under sectarian or ecclesiastical control.” Stat. See Kurtzman, J.). (1971) 403 U. S. (opinion BRENNAN, depends whether the Govern- on plaintiffs’ spend money, power to of its an exercise transfer was ment’s tangible property, dispose power itsor hand, one on the standing doctrine. trivialize is to other, on the concurring opinion and the the Court’s read cannot One in Flast v. Fortas Co- opinions and Justice Stewart ofJustice *42 forming firm conclusion that 83, without 392 U. S. hen, Establishment Clause was of plaintiffs’ invocation resolving in importance issue in decisive directly: point made Fortas case. Justice spend congressional powers agree to tax and “I that the Congress prohibition upon to enact limited are religion.’ ‘respecting This the- an establishment laws provides as is, ‘nexus,’ a direct as its basis sis, slender puts the use and collectionof taxes it, between the Court congressional action here. Because of this my judgment, unique to in it is not far-fetched ‘nexus,’ taxpayer special recognize claim to status as that a has a raising litigant issue. the ‘establishment’ a case permit special enough, to al- think, I us This claim coupled, the interest which the suit, is, low the as it with taxpayer church-state and all other citizens have philosophy issue. terms of the structure and basic government, difficult to our constitutional it would be point any pervasive, intimate, issue that has a more taxpayer— impact upon and fundamental the life of the upon the life of all citizens. “Perhaps the vital in the establish- interest of a citizen taxpayer’s status, ment issue, without his reference to challenge. acceptable We would be as a basis for this certainly, must need not I we believe, decide this. But recognize scrutiny legisla- principle judicial that our questions important tive acts which raise constitutional requires separation presented that the issue here —the Founding re- state and Fathers church—which the
garded system— our fundamental to constitutional judicial subjected testing. should be This is not a question which if we are to be faithful we, to our trust, consign unacknowledged, limbo, should unresolved, and undecided. urgent hand,
“On the other necessities of this case precarious opening through and the which we find our way open it, to confront do demand that we the door general upon spending to a assault exercises of the power. accepted The status of should not be pad launching upon target as a for an attack other legislation affecting than the Establishment Clause.” Id., at 115-116.
Today
Judiciary
holds,
effect,
the Court
that the
has no
greater
enforcing
role
the Establishment Clause than in
enforcing
“norm[s]
other
of conduct which the Federal Gov-
ernment is
to honor,” ante,
bound
at 484, such as the Ac-
Clause,
counts
United States v.
Richardson,
U. S.
*43
Incompatibility
Schlesinger
and the
Clause,
v. Reservists
Stop
Ironically,
Committee to
the War,