ABORTION RIGHTS MOBILIZATION, INC., ET AL., PETITIONERS V. UNITED
STATES CATHOLIC CONFERENCE, ET AL.

   No. 89-1242

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Second Circuit

   Brief For The Federal Respondents In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-33a) is reported
at 885 F.2d 1020.  The opinions of the district court denying the
motions to dismiss (Pet. App. 35a-73a, 75a-84a) are reported at 544 F.
Supp. 471 and 603 F. Supp. 970, respectively.

                             JURISDICTION

   The judgment of the court of appeals was entered on September 6,
1989.  A petition for rehearing was denied on October 4, 1989 (Pet.
App. 85a-86a).  On December 19, 1989, Justice Marshall extended the
time within which to file a petition for a writ of certiorari to and
including February 1, 1990, and the petition was filed on that date.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether various individuals and tax-exempt organizations that
support the availability of legal abortion have standing to sue the
Secretary of Treasury and the Commissioner of Internal Revenue for
declaratory and injunctive relief requiring the defendants to revoke
the tax exemption of the Roman Catholic Church.

                               STATEMENT

   1. Petitioners are various individuals and tax-exempt organizations
that support the availability of legal abortion.  They brought this
suit in the United States District Court for the Southern District of
New York, seeking to compel the Secretary of the Treasury and the
Commissioner of Internal Revenue to revoke the tax exemption of the
Roman Catholic Church.  /1/ The amended complaint (C.A. App. 7-23)
described the action as one for equitable relief "to enforce the
doctrine of the separation of church and state" (id. at 7).  It
alleged that the individual petitioners are taxpayers and registered
voters and that five of them are clergy of the Jewish or Protestant
faiths whose religious beliefs "hold it permissible for women to
choose to have abortions" (id. at 9-10).

   The amended complaint alleged that the Roman Catholic Church, using
tax-deductible contributions, has "participated in political campaigns
in all parts of the country," assertedly "supporting 'pro-life' and
opposing 'pro-choice' candidates for public office" (C.A. App. 13).
According to the complaint, the church has regularly contributed money
to "right to life" groups, and its clergy have urged their congregants
to do the same (id. at 15).  The amended complaint alleged that this
activity exceeds the limitations placed on organizations classified as
tax-exempt under Section 501(c)(3) of the Internal Revenue Code (26
U.S.C.) (the Code or I.R.C.), but that the Secretary and Commissioner
have "consistently overlooked these violations and failed and refused
to perform their statutory duty to enforce the Code and the
Constitution" (C.A. App. 12).  /2/ In particular, petitioners assert
(Pet. 9 n.1) that this activity violates the prohibition in Section
501(c)(3) against "participat(ing) in, or interven(ing) in (including
the publishing or distributing of statements), any political campaign
on behalf of (or in opposition to) any candidate for public office."
The complaint further alleged that the prohibition on political
activity by tax-exempt religious organizations is required by the
First Amendment in order to prohibit the "establishment of religion by
the federal government" (C.A. App. 12).

   The clergy petitioners claimed that the tax exemption accorded to
the Church, whose views on abortion they described as "diametrically
opposed" to their own, "is in effect a subsidy of the Church's efforts
to further its religious aims in the political sphere" (C.A. App. 19).
 According to their affidavits, the government's recognition of the
Church's exemption "offends," "demeans," and "denigrates" them and
their status in the community, leading them to "feel that (they) are
second class citizens" whose religious tenets are less "worthy of
attention" than those of the Church (id. at 53, 55, 59, 62, 66).  All
of the petitioners alleged that they are "at a significant
disadvantage in the public debate on abortion," assertedly because the
Church has "attracted and used tax-exempt, tax-deductible dollars to
elect candidates sympathetic to its position, whereas (petitioners)
cannot and have not done so," thereby enabling the Church to obtain
"financial and political advantages" (id. at 18).  Petitioners
asserted that "(i)nthe inherently competitive political arena an
advantage granted to one competitor automatically constitutes a
handicap to the others" (ibid.).  Petitioners claimed injury to
themselves "(a)s voters" on the theory that the alleged inequality of
tax treatment creates a "distortion of the political process" and
"impairs and diminishes" their "right to vote" (id. at 20).

   Petitioners sought a declaration that both the political activities
of the Roman Catholic Church and "the inaction" by the Secretary and
the Commissioner violate the Constitution and the Internal Revenue
Code.  Petitioners also sought an injunction directing the Secretary
and the Commissioner to revoke the tax exemption of the Church, to
assess and collect all taxes thereby made due, and to notify donors
that contributions to the Church are no longer tax-deductible (Pet.
App. 36a-38a, 40a-41a;  C.A. App. 22-23).

   2. The district court denied a motion to dismiss the suit for lack
of standing (Pet. App. 35a-73a), and it subsequently denied a renewed
motion to dismiss on that ground that had been based on this Court's
intervening decision in Allen v. Wright, 468 U.S. 737 (1984) (Pet.
App. 75a-84a).  The court held that certain of petitioners have
standing under one or both of two theories.

   First, the district court held that the individual petitioners who
are members of the clergy and the church-affiliated Women's Center for
Reproductive Health have "Establishment Clause" standing (Pet. App.
43a-50a).  The court stated that the clergy members "must counsel
those in their care in accordance with religious laws that command
consideration of abortion as the morally required response to
pregnancy" (id. at 49a), and that the Women's Center similarly
"provides guidance to women in decisionmaking on issues pertaining to
family life, including childbearing" (ibid.).  The court characterized
the Church's tax exemption as "tacit government endorsement" of the
Church's position on abortion, and concluded that it caused a
"discrete spiritual injury" to the clergy petitioners and to the
Women's Center because their beliefs "are denigrated by government
favoritism to a different theology," and because "official approval of
an orthodoxy antithetical to their spiritual mission diminishes their
position in the community, encumbers their calling in life, and
obstructs their ability to communicate effectively their religious
message" (ibid.).

   Second, the district court held that all of the individual
petitioners and three of the advocacy organization petitioners, as
representatives of their members, have "voter standing," within the
meaning of Baker v. Carr, 369 U.S. 186 (1962), to challenge "alleged
government action which has improperly biased the political process
against the discrete group to which they belong" (Pet. App. 53a).  In
the district court's view, continuation of the tax exemption
"distorted" the electoral process by allowing tax deductions for
donations to the Church but not for donations to politically active
abortion rights groups (id. at 54a).  /3/

   3. In May 1986, the district court held the Conferences in contempt
for failing to comply with discovery orders requiring them to produce
extensive documentary evidence sought by petitioners.  110 F.R.D. 337
(S.D.N.Y.).  The Conferences appealed the contempt order, arguing that
it should be set aside because the district court lacked subject
matter jurisdiction over the underlying action due to petitioners'
lack of standing.  A divided panel of the court of appeals affirmed
the contempt citations, ruling that the Conferences could bring a
jurisdictional challenge to the contempt adjudication only on the
limited ground that the district court lacked even "colorable"
jurisdiction over the underlying lawsuit, and that the district
court's assumption of jurisdiction in this case met this minimum
threshold.  824 F.2d 156 (2d Cir. 1987).  This Court reversed, holding
that the absence of subject matter jurisdiction over the underlying
action was ground for reversal on appeal of a civil contempt citation
against a non-party witness, even if there existed a "colorable" basis
for jurisdiction.  Accordingly, the Court remanded the case to the
court of appeals to determine whether the district court had subject
matter jurisdiction over the underlying action.  108 S.Ct. 2268
(1988).

   4. On remand, a divided panel of the court of appeals held that the
contempt order must be vacated, and the complaint dismissed, because
petitioners lack Article III standing to bring this lawsuit (Pet. App.
1a-33a).  The majority analyzed petitioners' contentions in terms of
four different asserted bases for standing -- either as "clergy," as
"taxpayers," as "voters," or as "competitive advocates" -- and
rejected each claim.  The majority reasoned that the allegation of the
clergy petitioners that they are "denigrated by government favoritism
to a different theology," which assertedly "hampers and frustrates
(their) ministries" (id. at 11a-12a), establishes no concrete injury
in fact.  The majority explained that the clergy petitioners "have not
been injured in a sufficiently personal way to distinguish themselves
from other citizens who are generally aggrieved by a claimed
constitutional violation" (id. at 12a);  they "can point to no illegal
government conduct directly affecting their own ministries" (id. at
14a).

   The majority rejected the claim that petitioners have standing to
sue as "taxpayers" because their complaint "do(es) not challenge
Congress' exercise of its taxing and spending power as embodied in
Section 501(c)(3) of the Code," but rather "challenge(s) how the IRS
administers the Code" (Pet. App. 19a).  The majority also rejected
petitioners' claim to "voter standing," reasoning that "'voter
standing' as applied to this case is a misnomer" because petitioners'
attack upon the government's failure to revoke the tax exemption of
the Catholic Church "has nothing to do with voting" (id. at 20a).  The
court explained that there was no basis for petitioners to claim a
dilution of their voting rights as in Baker v. Carr, 369 U.S. 186
(1962), or in a gerrymandering challenge (Pet. App. 20a-21a).

   The majority proceeded to hold that petitioners' claim to standing
as "competitive advocates" in the political arena, where they
assertedly suffer a disadvantage as a result of the tax exemption
accorded to the Catholic Church, fails to allege a concrete injury
(Pet. App. 21a-26a).  The majority explained that, in order to
establish a cognizable "competitive injury," petitioners would need to
plead and prove that they are themselves "competitors" or "players" in
the political arena who are "personally" disadvantaged by the Church's
conduct (id. at 21a-23a).  In the majority's view, petitioners fail to
meet that test because they are not running for office or otherwise
directly involved in political activity;  rather, they "simply
advocate the pro-choice cause," and their "strongly held beliefs are
not a substitute for injury in fact" (id. at 24a-25a).  The majority
also observed that petitioners' "competitor advocate" theory of
standing is erroneous because it "lack(s) a limiting principle, and
would effectively give standing to any spectator who supported a given
side in public political debate" (id. at 25a).

   Judge Newman dissented (Pet. App. 27a-33a).  He concluded that the
two petitioners that have tax-exempt status under Section 501(c)(3) --
Abortion Rights Mobilization, Inc. and the National Women's Health
Network, Inc. -- have standing to sue as "competitive advocates" of
the Catholic Church.  Judge Newman maintained that sufficient
"competition" exists to confer standing on those organizations because
they "are abiding by the limitations of section 501(c)(3) in their
advocacy on the abortion issue," whereas the Church allegedly is
"violating these limitations in the advocacy of its point of view on
the issue" (Pet. App. 31a).  The dissent also concluded that
petitioner Long Island National Organization for Women-Nassau, Inc.,
similarly has standing as a "competitive advocate" because it is
"disadvantage(d)" vis-a-vis the Church, i.e., its tax status under
Section 501(c)(4) permits it to lobby and to engage in political
activity, but not to receive tax-deductible contributions (Pet. App.
32a).

                               ARGUMENT

   Petitioners offer no persuasive reason why the court of appeals'
decision warrants this Court's review.  They do not maintain that the
decision below conflicts with any decision of another court of
appeals, and clearly it does not.  /4/ Petitioners claim (Pet. 15-20)
that "the issues in this case are of national significance," but in
support of this claim they focus primarily not on the standing
question presented here, but rather on the underlying merits of their
complaint and on the political controversy that assertedly prompted
that complaint -- the debate over abortion rights.  In fact, the
decision below on the question presented by the petition does not
break new ground;  it merely applies to a particular fact situation
legal principles already set forth in several decisions of this Court.

   Moreover, the court of appeals is correct;  its holding that
petitioners lack Article III standing to bring this suit against the
Secretary and the Commissioner follows directly from the relevant
decisions of this Court.  Whether grounded in the concerns of
clergymen about First Amendment values, or in the assertions of other
petitioners that their favored political candidates are disadvantaged
at the polls, petitioners' allegations reduce to a complaint that the
government is not properly enforcing the law against another taxpayer.
 Petitioners thus are attempting to have the courts supervise the
Secretary's administration of the Code -- in particular, his
determinations and judgments with respect to the tax status accorded
to a third party.  Under the precedents established by this Court,
such a claim is not cognizable by the federal courts because
petitioners are not seeking to redress a concrete injury that creates
a "case or controversy" under Article III.  Accordingly, there is no
reason for further review by this Court.

   1. It is well established that, in order to maintain a lawsuit in
federal court, a plaintiff must "allege() such a personal stake in the
outcome of the controversy as to warrant his invocation of
federal-court jurisdiction and to justify exercise of the court's
remedial powers on his behalf." Warth v. Seldin, 422 U.S. 490, 498-499
(1975).  The "core component" of standing, derived directly from the
"cases" or "controversies" requirement of Article III of the
Constitution, requires the plaintiff to "allege personal injury fairly
traceable to the defendant's allegedly unlawful conduct and likely to
be redressed by the requested relief." Allen v. Wright, 468 U.S. 737,
750-751 (1984).  That injury cannot be an "abstract" one (O'Shea v.
Littleton, 414 U.S. 488, 494 (1974));  it must be "distinct and
palpable" (Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91,
100 (1979)).  In addition to those constitutional requirements, this
Court has also recognized that the standing doctrine embraces certain
prudential limitations on the exercise of federal jurisdiction,
including "the general prohibition on a litigant's raising another
person's legal rights" and "the rule barring adjudication of
generalized grievances more appropriately addressed in the
representative branches." Allen v. Wright, 468 U.S. at 751.

   The Court has emphasized that these principles generally do not
permit plaintiffs to invoke the federal courts to litigate the claim
that the government is failing to enforce its laws -- in particular,
laws governing tax exemptions -- against a third party.  In Allen v.
Wright, supra, the Court observed that suits challenging the
government's conduct of a particular program "are rarely if ever
appropriate for federal-court adjudication" (468 U.S. at 760), and it
held that the parents of black public school children lacked standing
to sue the Secretary and the Commissioner to challenge the tax-exempt
status of allegedly discriminatory private schools.  The Court
explained that the plaintiffs' complaint that the government was not
adequately enforcing the tax exemption laws was not sufficient to
permit the suit:  "(A)ssertion of a right to a particular kind of
Government conduct, which the Government has violated by acting
differently, cannot alone satisfy the requirements of Art. III without
draining those requirements of meaning" (id. at 754, quoting Valley
Forge Christian College v. American United for Separation of Church &
State, Inc., 454 U.S. 464, 483 (1982)).  See also Schlesinger v.
Reservists Committee to Stop the War, 418 U.S. 208, 217 (1974);
United States v. Richardson, 418 U.S. 166 (1974);  Ex parte Levitt,
302 U.S. 633 (1937).

   The Court then concluded that the plaintiffs had not suffered any
concrete injury from the government's failure to revoke allegedly
invalid tax exemptions.  The Court held that the claim that blacks had
suffered a "stigmatic injury, or denigration" (468 U.S. at 754) as a
result of government recognition of tax exemptions for segregated
schools was too abstract to be judicially cognizable.  The Court also
rejected the attempt to base standing on the assertion that the grant
of tax exemptions to private schools impaired the desegregation of the
public schools and therefore diminished the plaintiffs' ability to
educate their children in an integrated school.  The Court held that
the line of causation between the government's enforcement of the tax
laws and public school desegregation was too weak;  it was sheer
speculation whether the withdrawal of tax exemptions would affect the
racial balance in the public schools attended by the plaintiffs'
children.  Id. at 756-758.

   In Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S.
26 (1976), this Court also found that the plaintiffs lacked standing
to litigate whether the government was properly enforcing the tax laws
against other persons.  A group of indigent plaintiffs had sued
Treasury officials to challenge a Revenue Ruling that allowed
nonprofit hospitals to qualify for tax exemption under Section
501(c)(3) even if they provided indigents with no more than emergency
room services.  Although the Court acknowledged that some of the
plaintiffs had been injured by the hospitals' relatively restrictive
policy regarding services to indigents (see 426 U.S. at 40-41), the
Court held that this injury did not confer standing to sue the
government because it was "purely speculative" whether the alleged
injury could fairly be traced to the government's tax enforcement
ruling "or instead result(s) from decisions made by the hospitals
without regard to the tax implications" (id. at 42-43).  And in Valley
Forge Christian College v. Americans United for Separation of Church &
State, Inc., supra, the Court held that the plaintiffs lacked standing
to challenge, as violative of the Establishment Clause, the conveyance
of surplus federal property to sectarian institutions because the
plaintiffs "fail(ed) to identify any personal injury suffered by them
as a consequence of the alleged constitutional error, other than the
psychological consequence presumably produced by observation of
conduct with which one disagrees" (454 U.S. at 485).  The principles
embodied in these decisions establish that petitioners here lack
standing to challenge the tax exemption of the Catholic Church.

   2. Petitioners do not discuss the decisions of this Court that
reject standing to sue the government to revoke the tax exemption of a
third party.  Instead, they invoke cases recognizing plaintiffs'
standing to maintain very different kinds of lawsuits, and then
advance a variety of theories to try to bring themselves within the
ambit of those cases.  The court of appeals, however, correctly
rejected each of petitioners' theories of standing.

   a. Because they do not challenge any aspect of the electoral
process, there is clearly no merit to petitioners' argument (Pet.
20-24) that the decision below conflicts with this Court's recognition
of "voter standing" in Baker v. Carr, 369 U.S. 186 (1962).  They do
not allege that their vote has been diluted in any manner or that
anyone has been prevented from voting.  Thus, as the court of appeals
held (Pet. App. 20a-21a), they "do not allege the particularized and
objectively ascertainable injury in fact that sustained standing in
the malapportionment cases."

   The substance of what petitioners refer to as "voter standing" is
the assertion they and their cause are at a competitive disadvantage
in the political arena -- because the Church allegedly can use
tax-deductible contributions to support candidates, whereas abortion
rights groups cannot (see Pet. 20-21, 24-25).  This allegation is
entirely inadequate to establish a basis for standing to sue.  A
threshold prerequisite to standing, as a "competitor" or otherwise, is
that the plaintiff himself have suffered an "injury in fact" from the
conduct that he challenges.  See, e.g., Association of Data Processing
Service Organizations, Inc. v. Camp, 397 U.S. 150, 152 (1970).  The
claim to "competitor" standing set forth in petitioners' complaint
rests on a series of assumptions -- that petitioners "compete" with
the Catholic Church in the political sphere;  that the Church's
tax-exempt status necessarily gives it "financial and political
advantages" in that area;  and that "an advantage granted to one
competitor automatically constitutes a handicap to the others" (C.A.
App. 18).  These claims do not allege a concrete, personal injury;
they merely state argumentatively that petitioners "suffer() in some
indefinite way in common" (Massachusetts v. Mellon, 262 U.S. 447, 488
(1923)) with every participant in the political process who does not
share the Church's views.  As the court of appeals correctly noted,
petitioners' theory of "competitor" standing "lack(s) a limiting
principle";  it could be invoked by "any spectator who support(s) a
given side in public debate" (Pet. App. 25a).  /5/

   In essence, what petitioners argue is that whenever someone
receives any money or avoids an expense -- for example, by means of a
tax benefit -- that infusion of funds necessarily injures its
competitors, and the competitors have standing to challenge the
legality of the receipt or retention of funds.  Even if the principles
applicable to suits by commercial competitors are fully applicable to
the competition in the political arena on which petitioners base their
claim, however, this type of assumed injury clearly is not sufficient
to satisfy the standing criteria set forth by this Court.  The causal
connection between an increase in a competitor's bank account and an
injury to the plaintiff is too tenuous;  the injury is not "'fairly'
traceable" (Allen v. Wright, 468 U.S. at 751) to the challenged
government conduct.  /6/ The only injury on which petitioners base
their claim of "competitive advocate" standing is that the Church's
tax exemption allows it to receive more money than it would if the tax
laws were properly enforced, and that those additional funds received
by petitioners' competitor necessarily injure them in the political
arena in which they compete.  The decisions of this Court clearly
establish that Article III requires a more direct causal relationship
between a palpable injury suffered by the plaintiffs and the
challenged conduct of the defendants.  /7/

   Moreover, an injury can confer standing only if it "fairly can be
traced to the challenged action of the defendant, and not * * * (to)
the independent action of some third party not before the court" and
if it "is likely to be redressed by a favorable decision" (Eastern
Kentucky, 426 U.S. at 38, 41-42;  see Allen v. Wright, 468 U.S. at
751, 753 n.19).  In this voter context, the essence of a claim of
cognizable injury at the hands of the federal defendants therefore
must be that the electoral fortunes of causes or candidates that
petitioners support are being harmed by the existence of the Church's
tax exemption and, concomitantly, that the harm would be remedied if
the exemption were revoked.  But, as even the district court
acknowledged (Pet. App. 54a-55a, 79a), the Church's tax exemption does
not have that kind of direct effect on electoral results.  As was the
case in Eastern Kentucky (see 426 U.S. at 42-43), it is purely
speculative whether a change in the Church's tax status would lead to
any significant change in the level of contributions made to the
Church or in the nature of the Church's activities.  And even if it
would, it is even more uncertain whether those changes would have any
palpable effect on the success at the polls of candidates whom
petitioners favor.  Petitioners' contention simply fails to establish
the nexus required by Article III between the alleged injury and the
challenged conduct;  the success of their political cause hinges
fundamentally on the "independent action(s) of * * * third part(ies)
not before the court" (Eastern Kentucky, 426 U.S. at 42).  See also
Allen v. Wright, 468 U.S. at 758;  Winpisinger v. Watson, 628 F.2d
133, 139 (D.C. Cir.), cert. denied, 466 U.S. 929 (1980).  /8/

   b. The claim that the petitioners who are clergy members have
"Establishment Clause" standing (Pet. 28-33) to challenge the
government's favorable treatment of another religious entity also
fails to allege a judicially cognizable injury.  The ability of the
clergy petitioners to teach and minister to their congregations is not
affected by the Church's tax exemption and would not be enhanced by
the relief they seek.  The gist of this allegation of injury, as set
forth in their affidavits, is that their religious mission and values
are "demeaned" and "denigrated" by the tax-exempt status accorded to
the Church (C.A. App. 53, 55, 59, 62, 66).  But that sort of claim can
be made by any litigant who alleges that he is discomfited by
government action that does not directly affect him.  This Court has
consistently rejected such a basis for standing, whether couched as
"stigmatic" injury (Allen v. Wright, 468 U.S. at 753-756) or as
"psychological" distress (Valley Forge, 454 U.S. at 485-486).  /9/

   Contrary to petitioners' suggestion (Pet. 28-30), there is no
justification for departing from the basic principles of standing
simply because their complaint alleges that the government has
violated the Establishment Clause.  In Abington School District v.
Schempp, 374 U.S. 203 (1963), an Establishment Clause challenge to
Bible reading in the public schools, this Court observed that "(i)t
goes without saying that the laws and practices here can be challenged
only by persons having standing to complain," i.e., persons "directly
affected by the laws and practices against which their complaints are
directed" (id. at 224 n.9).  Thus, the plaintiffs in Schempp, who were
students in those schools, had standing, "not because their complaint
rested on the Establishment Clause(,) * * * but because impressionable
schoolchildren were subjected to unwelcome religious exercises or were
forced to assume special burdens to avoid them" (Valley Forge, 454
U.S. at 487 n.22).  The clergy plaintiffs here are in no position to
allege a comparable element of personal injury.  Like the plaintiffs
in Valley Forge, who also held strong views concerning the separation
of church and state, they lack Article III standing because they have
failed to identify "any personal injury suffered by them as a
consequence of the alleged constitutional error" (454 U.S. at 485).
/10/

   3. Petitioners' claim of standing also falls within this Court's
admonition "counsel(ing) against recognizing standing in a case
brought, not to enforce specific legal obligations whose violation
works a direct harm, but to seek a restructuring of the apparatus
established by the Executive Branch to fulfill its legal duties"
(Allen v. Wright, 468 U.S. at 761).  See also Valley Forge, 454 U.S.
at 474-475.  As in Allen, petitioners seek to compel the Executive
Branch to undertake a nationwide review of the activities of a
tax-exempt organization in order to determine whether it continues to
qualify for exemption.  But that is an enforcement matter generally
committed to the authority of the Secretary.  To allow petitioners to
maintain such a suit would place the courts in the position of
assuming the "amorphous (task of) general supervision of the
operations of government" (United States v. Richardson, 418 U.S. at
192 (Powell, J., concurring)), and acting as "virtually continuing
monitors of the wisdom and soundness of Executive action" (Laird v.
Tatum, 408 U.S. 1, 15 (1972)).  Moreover, a suit to compel an agency
to undertake a specific enforcement inquiry is particularly unsuitable
for judicial resolution because "an agency decision not to enforce
often involves a complicated balancing of a number of factors which
are peculiarly within its expertise." Heckler v. Chaney, 470 U.S. 821,
831 (1985).  /11/

   The facts of this case graphically illustrate the mischief that
would flow from conferring standing on persons such as petitioners to
challenge the tax exemption of a third party.  Although petitioners
are not directly affected by the Church's tax exemption, they seek to
have the district court conduct a nationwide review of the IRS's
administration and enforcement of Section 501(c)(3), an inquiry that
would intrude into the sensitive internal workings of both the
government and the Roman Catholic Church.  Petitioners would have the
district court substitute its judgment for the enforcement judgment of
the IRS by reviewing the internal affairs of a multitude of
organizations falling under the "umbrella" exemption given to the USCC
to determine whether they engage in more political activity than their
tax-exempt status permits.  Moreover, this inquiry would likely touch
upon confidential tax return information collected by the IRS and
could well result in constitutional controversy over efforts to obtain
Church documents and to take testimony of Church officials.  Such a
judicial undertaking cannot properly be required, or justified, on
behalf of litigants whose own tax liability is unaffected by the
administrative action they seek to challenge.  /12/

   Indeed, this lawsuit well illustrates the concern expressed by this
Court over cases raising "questions of broad social import where no
individual rights would be vindicated." Gladstone, Realtors v. Village
of Bellwood, 441 U.S. at 100.  Petitioners are essentially seeking to
exercise control over the Executive Branch's allocation of its law
enforcement responsibilities, not to obtain a binding resolution of a
specific legal question in which they have a cognizable interest.  As
this Court stated in Allen, "(r)ecognition of standing in such
circumstances would transform the federal courts into "no more than a
vehicle for the vindication of the value interests of concerned
bystanders'" (468 U.S. at 756, quoting United States v. SCRAP, 412
U.S. 669, 687 (1973)).  /13/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   SHIRLEY D. PETERSON

      Assistant Attorney General

   ROBERT S. POMERANCE

   TERESA E. McLAUGHLIN

      Attorneys

   APRIL 1990

   /1/ The suit also named as defendants the non-federal respondents,
the United States Catholic Conference and the National Conference of
Catholic Bishops, which are the two principal national organizations
of the Roman Catholic Church in the United States (Pet. App. 36a,
39a-40a).  The USCC holds an "umbrella" exemption under Section
501(c)(3) covering numerous individual entities (including dioceses,
parishes, schools, and hospitals), which are affiliated with the Roman
Catholic Church in the United States (see Pet. App. 39a-40a).  The
district court ruled, however, that the complaint failed to state a
claim against the Conferences because they were entitled to rely upon
tax exemptions granted by the government.  Accordingly, they were
dismissed as defendants (id. at 64a-65a, 72a).

   /2/ Section 501(c)(3) of the Code provides an exemption from
federal income tax for an entity "organized and operated exclusively
for religious, charitable * * * or educational purposes, * * * no
substantial part of the activities of which is carrying on propaganda,
or otherwise attempting, to influence legislation (except as otherwise
provided in subsection (h) (which details the permissible limits of
expenditures to influence legislation)), and which does not
participate in, or intervene in (including the publishing or
distributing of statements), any political campaign on behalf of (or
in opposition to) any candidate for public office." Contributions made
to Section 501(c)(3) organizations are generally deductible for
federal income, estate, and gift tax purposes under Sections 170,
2055, and 2522 of the Code, respectively.

   /3/ On both occasions when it denied motions to dismiss, the
district court declined to certify the standing question for
interlocutory appeal under 28 U.S.C. 1292(b) (1982 & Supp. V 1987).
See 552 F. Supp. 364 (S.D.N.Y. 1982).  Subsequently, the court of
appeals denied the government's petition for a writ of mandamus or
prohibition directing the district court to dismiss the complaint for
lack of standing.  788 F.2d 3 (2d Cir. 1986).  The government then
petitioned this Court for a writ of certiorari to review the court of
appeals' order, and, alternatively, for a writ of mandamus directing
the district court to dismiss the action, and the Court denied those
petitions.  479 U.S. 810, 852 (1986).

   /4/ Petitioners do contend (Pet. 33-37) that the decision of the
court of appeals conflicts with its own decision in Fulani v. League
of Women Voters Education Fund, 882 F.2d 621 (2d Cir. 1989).  Even if
this contention had merit, which it does not, it would provide no
reason for this Court to grant certiorari because such an
intra-circuit conflict would be for the court of appeals, not this
Court, to resolve.  See Wisniewski v. United States, 353 U.S. 901, 902
(1957).  Petitioners did raise this claim of a conflict with Fulani in
the proper forum by seeking rehearing en banc in this case, and the
court of appeals expressly rejected petitioners' contention in denying
rehearing (Pet. App. 85a-86a).  The court stated that, "though this
panel is divided as to whether the plaintiffs are sufficiently in
competition with the Catholic Church to have suffered injury that
confers standing, we are in agreement that the competition in Fulani
is more direct and immediate than that shown here" (ibid.).

   /5/ The dissent in the court of appeals states (Pet. App. 29a-31a)
that the petitioners that are tax-exempt organizations should be
differentiated from other taxpayers in this regard because they abide
by the statutory restrictions that come with their tax-exempt status.
But their tax-exempt status does not change the nature of the
"competitive" injury that these petitioners allege, which is the same
as that alleged by any other abortion rights advocate in the political
arena -- namely, that it is unfair to allow the Church to use
tax-exempt contributions to participate in political campaigns on the
side that petitioners do not favor.  Indeed, because these petitioners
have removed themselves from the political campaign arena by receiving
Section 501(c)(3) tax-exempt status, they are less injured than other
participants would be by the alleged advantage conferred upon the
Church in that arena.

   /6/ Indeed, the logical implications of the plaintiffs' theory are
so far-reaching that, if adopted, it would dramatically subvert the
limitations of Article III.  Competing organizations, whether or not
tax-exempt, presumably could sue to revoke the tax exemption of a
civic league, labor union, or business league (see I.R.C. Section
501(c)(4), (5), and (6)).  Outside the specific area of tax
exemptions, a businessman presumably could sue the government claiming
that the IRS had been too generous in allowing his competitor to take
a particular deduction.  Or, even outside the tax area, any government
action that redounded to the financial benefit of a competitor might
be challenged by a third party -- for example, a competitor might
claim that the government had been too lenient in imposing an
administrative fine on another company for certain environmental or
safety violations.

   /7/ See American Society of Travel Agents, Inc. v. Blumenthal, 566
F.2d 145 (D.C. Cir. 1977), cert. denied, 435 U.S. 947 (1978) (injury
in fact not established by allegation by commercial travel agents that
tax-exempt status of charitable organizations offering travel programs
created "unfair competitive atmosphere").

   /8/ Petitioners make no adequate response to these shortcomings of
their complaint.  They merely assert that the Church's alleged ability
to conduct political activity with tax-deductible funds automatically
creates a "distortion of the political process" and "the necessity of
fighting the abortion rights battle on an uneven playing field" (Pet.
21).  Similarly, the dissent in the court of appeals stated that an
allegation that the advocacy organization petitioners are at a
disadvantage "competing in the arena of public advocacy" is itself
"sufficient to permit the claim of law violation to be litigated"
(Pet. App. 30a).  Those statements cannot be correct;  a mere
allegation that the Church receives more favorable treatment than
petitioners at the hands of the government is not enough to support
standing.  Rather, a cognizable injury in the political arena requires
that the actions of the defendants have some concrete effect on
electoral results or legislative initiatives in which petitioners have
a direct interest.

   /9/ Apparently recognizing the weaknesses of their "denigration"
claim, petitioners now disavow an intent to found standing on their
status as "clergy qua clergy" (Pet. 32 n.10).  Rather, they urge that
the government "subsidy" assertedly granted to "the partisan political
activities of the Catholic Church" interferes with the clergy
petitioners' "mobiliz(ing) the resources of their congregations * * *
in competition with another religion" (Pet. 31, 32-33).  This
formulation apparently tries to import the elements of petitioners'
"competitive advocate" claim, with all of its severe defects (see pp.
14-18, supra), into a context (differences among particular religions)
where the concept of competitive injury is quite out of place.

   /10/ Petitioners' assertion (Pet. 15-20;  see pp. 9-10, supra) that
the underlying issues they seek to have litigated carry "national
significance" does not enhance their standing claim.  As this Court
noted in Flast v. Cohen, 392 U.S. 83, 99 (1968), standing cannot be
justified, in the absence of personal injury, on the basis of the
"issues (a plaintiff) wishes to have adjudicated." This Court has
emphatically rejected the notion that "the Art. III burdens diminish
as the 'importance' of the claim on the merits increases";  there is
"no principled basis on which to create a hierarchy of constitutional
values or a complementary 'sliding scale' of standing." Valley Forge,
454 U.S. at 484.

   /11/ The administration of the tax laws presents a particularly
strong case for refusal by the courts to hear a claim like that being
pressed by petitioners because such a claim intrudes into a detailed
structure erected by Congress to govern tax enforcement.  Congress has
delegated "the administration and enforcement of" the tax laws
exclusively to the Secretary and the Commissioner (I.R.C. Section
7801(a)), including the power to "prescribe all needful rules and
regulations for the enforcement of" those laws (I.R.C. Section
7805(a)).  Congress has reserved to itself the task of overseeing the
enforcement of the revenue laws by creating a Joint Committee on
Taxation to investigate the administration, operation, and effects of
the tax system.  I.R.C. Sections 8001-8023.  At the same time,
Congress has established precisely defined channels for the
adjudication of tax disputes initiated by private parties --
proceedings in the Tax Court to redetermine deficiencies (I.R.C.
Sections 6212, 6213), refund suits in the district courts or the
Claims, Court (I.R.C. Sections 6532, 7422;  28 U.S.C. 1346, 1491 (1982
& Supp. V 1987)), and, in limited circumstances, declaratory judgment
actions, e.g., by an organization seeking recognition of its own
tax-exempt status under Section 501(c)(3) (I.R.C. Section 7428).
Apart from these avenues of relief, Congress has precluded "any
person, whether or not such person is the person against whom such tax
was assessed," from maintaining a "suit for the purpose of restraining
the assessment or collection of any tax" (I.R.C. Section 7421(a)), and
has barred declaratory relief in all actions "with respect to Federal
taxes" (28 U.S.C. 2201 (1982 & Supp. V 1987)).  This structure
reflects a deliberate judgment that the vigor of the government's
enforcement of the tax laws is generally not a matter for litigation
instituted by private parties.  In particular, Congress has determined
that the invocation of judicial examination of the validity of a
particular organization's tax exemption is the prerogative only of the
government and the organization in question, not of third parties.

   /12/ As a practical matter, petitioners cannot obtain final relief
in this lawsuit, even if they were to prevail entirely on all their
contentions on the merits.  The Church was long ago dismissed as a
party from this suit.  If the district court were to enter an order
directing the federal respondents to withdraw the Church's tax
exemption and to assess back taxes, the Church would remain free to
challenge the revocation in a declaratory judgment action under
Section 7428 of the Code, or to challenge in normal fashion any
deficiency asserted, either by filing a petition in the Tax Court or
by filing a refund suit in the district court.  Because the Church is
not a party to the underlying litigation here, the outcome of this
lawsuit would have no res judicata or collateral estoppel effect in
later litigation.  Far from ending the matter, a ruling here in
petitioners' favor would not resolve the validity of the Church's tax
exemption;  it would only act as a catalyst to further litigation in
another forum.

   /13/ There is no reason for the Court to hold this case pending the
resolution of Lujan v. National Wildlife Federation, cert. granted,
110 S. Ct. 834 (1990).  Although Lujan presents a standing question,
it is quite different from the one presented here.  Lujan involves a
challenge to formal government actions that are subject to review
under the Administrative Procedure Act, 5 U.S.C. 702;  the question is
whether, because the allegations of injury are so tenuous, the
particular plaintiff is the proper party to bring suit.  However Lujan
is resolved, its outcome should have no effect on the question
presented here -- whether petitioners have standing to challenge the
government's alleged failure to live up to its enforcement
responsibilities by revoking the tax exemption of a third party.