UNITED STATES CATHOLIC CONFERENCE AND NATIONAL CONFERENCE OF
CATHOLIC BISHOPS, PETITIONERS V. ABORTION RIGHTS MOBILIZATION, INC.,
ET AL.
   No. 87-416
   In the Supreme Court of the United States
   October Term, 1987
   On Writ of Certiorari to the United States Court of Appeals for the
Second Circuit
   Brief for the Federal Respondents in Support of Petitioners
                       PARTIES TO THE PROCEEDING
   In addition to Abortion Rights Mobilization, Inc., Lawrence Lader,
Margaret O. Strahl, M.D., Helen W. Edey, M.D., Ruth P. Smith, National
Women's Health Network, Inc., Long Island National Organization for
Women-Nassau, Inc., Rabbi Israel Margolies, Reverend Bea Blair, Rabbi
Balfour Brickner, Reverent Robert Hare, Reverend Marvin G. Lutz,
Women's Center for Reproductive Health, Jennie Rose Lifrieri, Eileen
Walsh, Patricia Sullivan Luciano, Marcella Michalski, Chris
Niebrzydowski, Judith A. Seibel, Karen DeCrow, and Susan Sherer are
also plaintiffs in the district court and respondents here.  James A.
Baker, III, Secretary of the Treasury, and Lawrence B. Gibbs,
Commissioner of Internal Revenue, are defendants in the district court
and respondents here.
                           TABLE OF CONTENTS
   Question Presented
   Parties to the Proceeding
   Opinions below
   Jurisdiction
   Constitutional provisions involved
   Statement
   Summary of argument
   Argument:
     The district court's order holding petitioners in contempt
     should be set aside for lack of jurisdiction because the
     plaintiffs do not have standing to bring the underlying
     lawsuit
     A. The contempt order entered against the petitioners should be
        set aside if the plaintiffs lack standing to bring the
        underlying lawsuit against the federal respondents
     B. The plaintiffs lack standing to challenge petitioners'
        tax exemption
        1. A plaintiff lacks standing to maintain a suit challenging
           governmental action directed at an unrelated party unless
           he alleges that he has personally suffered a concrete
           injury that is fairly traceable to the government's
           challenged conduct and that is redressable by the
           requested relief
        2. The plaintiffs' allegation that they are denigrated by the
           conferral of a tax exemption upon the Catholic Church
           does not assert an injury that is cognizable in
           federal court
        3. The plaintiffs' allegation that the Catholic Church's
           tax exemption gives opponents of abortion an unfair
           advantage over them in the political process does not
           provide a basis for standing because it states no injury
           fairly traceable to the federal defendants or
           redressable by the requested relief
        4. The district court's assumption of jurisdiction over
           this lawsuit is fundamentally at odds with the separation
           of powers principles that underlie the doctrine of
           standing
   Conclusion
                            OPINIONS BELOW
   The opinion of the court of appeals (Pet. App. 1a-41a) is reported
at 824 F.2d 156.  The opinion of the district court holding
petitioners in contempt (Pet. App. 44a-51a) is reported at 110 F.R.D.
337.  The opinions of the district court denying the motions to
dismiss (Pet. App. 54a-92a, 93a-102a) are reported at 544 F. Supp.
471, and 603 F. Supp. 970, respectively.
                             JURISDICTION
   The judgment of the court of appeals was entered on June 4, 1987.
A petition for rehearing was denied on July 30, 1987 (Pet. App.
103a-104a).  The petition for a writ of certiorari was filed on
September 11, 1987, and was granted on December 7, 1987.  The
jurisdiction of this Court rests on 28 U.S.C. 1254(1).
                   CONSTITUTIONAL PROVISION INVOLVED
   Article III, Section 2, of the Constitution provides:
         The judicial Power shall extend to all Cases, in Law and
      Equity, arising under this Constitution, the Laws of the United
      States, and Treaties made, or which shall be made, under their
      Authority;  -- to all Cases affecting Ambassadors, other public
      Ministers and Consuls;  -- to all Cases of admiralty and
      maritime Jurisdiction;  -- to Controversies to which the United
      States shall be a Party;  -- to Controversies between two or
      more States;  -- between a State and Citizens of another State;
      -- between Citizens of different States;  -- between Citizens of
      the same State claiming Lands under Grants of different States,
      and between a State, or the Citizens thereof, and foreign
      States, Citizens or Subjects.
                          QUESTION PRESENTED
   Whether the order holding petitioners in contempt for failure to
comply with a discovery order should be set aside on the ground that
the plaintiffs lack standing to bring the underlying lawsuit.
                               STATEMENT
   1. The non-federal respondents 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
(J.A. 5-19) described the action as one for equitable relief "to
enforce the doctrine of the separation of church and state" (J.A. 5).
It alleged that the individual plaintiffs 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" (J.A. 7, 9).
   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" (J.A. 11).
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 (J.A. 12-13).  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, /2/
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" (J.A. 10).  /3/ The
complaint further alleged that the statutory 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" (ibid.).
   The amended complaint asserted that the challenged conduct of the
Church and of the federal defendants "harmed the plaintiffs in
numerous ways" (J.A. 14).  The clergy plaintiffs 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" (J.A. 16).  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 (J.A. 44, 45, 49, 52, 54-55).  All of the plaintiffs 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 the plaintiffs cannot and have not done so"
(J.A. 15).  The plaintiffs 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" (J.A. 17).
   The plaintiffs sought a declaration that both the political
activities of the Roman Catholic church and the alleged "inaction" by
the Secretary and the Commissioner violate the Constitution and the
Internal Revenue Code.  The plaintiffs 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. 4a-5a, 60a-61a;  J.A. 18-19).
   2. The district court denied a motion to dismiss the suit for lack
of standing (Pet. App. 54a-92a), and it subsequently denied a renewed
motion to dismiss on that ground in light of this Court's intervening
decision in Allen v. Wright, 468 U.S. 737 (1984) (Pet. App. 93a-102a).
 The court held that certain of the plaintiffs have standing to
proceed against the federal respondents under one or both of two
theories.
   First, the court held that both the individual plaintiffs who are
members of the clergy and the church-affiliated Women's Center for
Reproductive Health have "Establishment Clause standing" (Pet. App.
62a-69a).  The court stated that the clery 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 68a (footnote omitted)), and that the Women's
Center "provides guidance to women in decisionmaking on issues
pertaining to family life, including childbearing" (ibid.).  The court
characterized the Church's tax exemption as "(t)acit government
endorsement" of the Church's position on abortion, and concluded that
it caused a "discrete spiritual injury" to some of the plaintiffs
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" (id. at 67a-68a).  In
the court's view, this alleged injury would be redressable by "(a)
decree ordering the termination of this illegal practice and restoring
all sects to equal footing" (id. at 69a).
   Second, the district court held that all of the individual
plaintiffs and three of the advocacy organization plaintiffs, 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. 72a).  In
the district court's view, the failure to revoke the Church's tax
exemption has "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 73a).  The court
suggested that "(a)n injunction against that discriminatory policy
will restore the proper balance between adversaries in the abortion
debate" (ibid.).
   On both occasions that it denied motions to dismiss, the district
court declined to certify the standing question for interlocutory
appeal under 28 U.S.C. 1292(b) (see Pet. App. 5a-6a;  552 F. Supp. 364
(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.  On October 6,
1986, this Court denied the government's petitions 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 (Nos. 86-157 and 86-162).
   3. The plaintiffs are currently seeking, through subpoenas and
other process, detailed recovery of information concerning the
Church's tax status and its alleged lobbying and electioneering
activities.  To that end, they have requested documents from
petitioners and from the Internal Revenue Service.  See J.A. 67-79;
C.A. App. 160-195, 315-332.  /4/ The documents requested from
petitioners are voluminous and include the following:  records
relating to the formulation and interpretation of the bishops'
position on abortion;  records relating to church officials' contacts
with presidential candidates and other candidates for public office;
information regarding financial relationships between Catholic
institutions and right-to-life organizations;  and returns, records,
and correspondence submitted by petitioners to the Internal Revenue
Service (J.A. 69-73).  The plaintiffs have also indicated their intent
to depose cardinals and other high-ranking church officials who they
believe may be involved in these activities (C.A. App. 200-201).
   The district court narrowed the discovery requests in limited
respects, but otherwise ordered petitioners to comply with them (see
Pet. App. 48a-49a).  Petitioners subsequently advised the court that
they "cannot, in conscience, comply with the subpoenas" (id. at 44a).
On May 8, 1986, the court granted the plaintiffs' motion to hold
petitioners in civil contempt for noncompliance with the court's
discovery order, and it imposed on each of the petitioners a fine of
$50,000 per day, to begin on May 12, 1986, and to continue "for each
day that the USCC/NCCB continues to defy the court's order" (id. at
50a-51a).  That order was stayed pending appeal, and the stay remains
in effect pending this Court's disposition of the case (id. at 7a,
105a-110a;  Fed. R. App. P. 41(b)).
   4. Petitioners appealed the contempt order, arguing that it should
be set aside because the district court lacks jurisdiction over the
underlying action due to the plaintiffs' lack of standing.  A divided
panel of the court of appeals affirmed (Pet. App. 1a-43a).  The
majority held that petitioners, as non-party witnesses, "may challenge
their contempt adjudication only on the limited ground that the
District Court lacks even colorable jurisdiction over the underlying
lawsuit" (id. at 18a), but may not seek to have the contempt order
expunged by bringing "a full-scale challenge to the correctness of the
district court's exercise of such jurisdiction" (id. at 10a).
Applying that limited standard of review, the majority concluded that
the trial court's assumption of jurisdiction rests on a sufficient
basis to support the contempt judgment.  The majority stated that the
plaintiffs' suit "is more than a citizen effort to have the tax laws
enforced and more than a taxpayer effort to complain of tax exemptions
of others that might violate the Establishment Clause" (id. at 19a).
Rather, the majority concluded, the plaintiffs have asserted "at least
a colorable basis" (id. at 20a) on which to predicate standing by
"claim(ing) direct, personal injury arising from the fact that the
federal defendants' failure to enforce the political action
limitations of section 501(c)(3) has placed the plaintiffs at a
competitive disadvantage with the Catholic Church in the arena of
public advocacy on important public issues" (id. at 19a).
   Judge Cardamone dissented, stating that the court should have
decided whether the district court's assumption of jurisdiction over
the suit was correct, not merely whether it was "colorable" (Pet. App.
21a-41a).  The dissent stated that, if the petitioners were correct
that there was no standing, then the majority's ruling had the effect
of forcing them to comply with an order of the district court that
"exceeded the jurisdictional limits of Article III" (id. at 29a).
Moreover, the dissent continued (id. at 33a), "(t)o emasculate the
witnesses' right to appeal by so narrow a view of what an appellate
court may review, effectively deprives these contemnors of any
meaningful appeal."
                          SUMMARY OF ARGUMENT
   A. It is well established that a witness who is held in civil
contempt for failure to comply with an order is entitled to have the
contempt judgment set aside on appeal if the lower court lacked
jurisdiction to enter the order that led to the contempt.  If the
plaintiffs here lack standing to bring this suit challenging the tax
exemption of a third party, then the district court lacks subject
matter jurisdiction over the suit, and it follows that enforcement of
a discovery order in furtherance of the suit exceeded the court's
jurisdiction.  In conformity with the general rule that an appellate
court is always obliged to consider the existence of subject matter
jurisdiction in the lower court, the court of appeals should have
resolved on petitioners' appeal whether the plaintiffs had standing.
   The court of appeals erred in holding that its review of the
jurisdictional issue must be limited to considering whether the
plaintiffs lacked a "colorable basis" for standing.  That holding
forces petitioners to comply with an extremely burdensome discovery
order, even if they can establish that the district court exceeded its
Article III jurisdiction in enforcing the order.  As a practical
matter, therefore, the court's holding renders petitioners' right to
appeal meaningless.
   The court of appeals' decision cannot be squared with this Court's
decision in United States v. United Mine Workers, 330 U.S. 258,
289-295 (1947).  It is true that a court ultimately held not to have
jurisdiction may still have acted properly in exercising judicial
power to the extent necessary to determine its jurisdiction, but that
principle has no application here because it does not authorize a
court to enforce a discovery order directed at the merits of a lawsuit
over which the court has no subject matter jurisdiction.  Moreover,
while the rule is different for criminal contempt, a civil contempt
sanction such as the one at issue here, whose purpose is to coerce
compliance with the court's order for the benefit of particular
litigants, must fall when it is determined that the court's order
exceeded its jurisdiction.  See id. at 294-295.  Therefore, the court
of appeals was obliged to consider whether the district court's ruling
on standing was correct, not merely whether that ruling had a
"colorable basis," and to set aside the contempt judgment if it
concluded that the plaintiffs lacked standing.
   B. The plaintiffs' contention that they have standing to bring this
lawsuit against the federal defendants -- on the ground that they have
suffered a concrete injury directly traceable to the government's
failure to revoke the tax exemption of the Catholic Church -- is
foreclosed by recent decisions of this Court.  The claim that the
plaintiffs who are clergy members have "Establishment Clause standing"
because they are "denigrated" by allegedly favorable treatment of
another religious group does not allege a judicially cognizable
injury.  The plaintiffs' ability to teach and minister to their
congregations is not affected by the Church's tax exemption;  thus,
the only injury they allege is that the perception of favorable
treatment of the Church "demeans" them and makes them feel like
"second class citizens" (see, e.g., J.A. 46, 49).  This sort of
"denigration" claim can be made by virtually any litigant who alleges
that he is discomfited by some 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. 737, 753-756 (1984)), or "psychological" distress
(Valley Forge Christian College v. Americans United for Separation of
Church & State, Inc., 454 U.S. 464, 485 (1982)).
   The plaintiffs' claim of "voter standing" does not allege an injury
that is properly traceable to the challenged government action and
thus does not confer standing to sue the federal defendants.  The
allegation that the plaintiffs suffer a "competitive disadvantage"
(see J.A. 15) in the political arena as a result of the Church's
exemption does not, standing alone, allege a concrete injury;  indeed,
any participant in the political process could make a similar
complaint about the tax treatment of any other participant.  A
concrete injury in the political arena requires some direct effect on
electoral results or legislative decisions in which the plaintiffs
have an interest.  It is entirely speculative whether the relief
requested here would redress any palpable injury suffered by the
plaintiffs and, indeed, whether the plaintiffs have suffered any such
injury at the hands of the federal defendants.  It is unknown whether
a change in the Church's tax status would result in any changes in its
resources or activities.  And, even if it did, it is uncertain whether
those changes would have any effect on the success of the candidates
and causes that the plaintiffs support, which ultimately turns on the
decisions of numerous individual voters.  In short, the injury alleged
by the plaintiffs cannot be remedied by the federal defendants;  the
improvement of their political position depends largely on the
"independent action of * * * third part(ies) not before the court"
(Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26,
42 (1976)).  The causal connection between the Church's tax exemption
and any judicially cognizable injury to the plaintiffs is too tenuous
to support standing.  See also Allen v. Wright, 468 U.S. at 758-759.
   The plaintiffs' claimed status as "voters" does not alter this
result.  Their standing contention cannot be analogized to Baker v.
Carr, 369 U.S. 186 (1962), because they do not challenge any aspect of
the electoral process.  Rather, the gravamen of their claim is one of
"competitor standing," in which the political arena happens to be the
area in which they "compete" with the Catholic Church.  Viewed in this
light, it is again apparent that the plaintiffs lack standing because
they can point to no "injury in fact" sustained as a consequence of
the conduct of the federal defendants.  The only injury alleged is
that the Church's tax exemption gives it a financial advantage that
automatically handicaps or injures its competitors, such as the
plaintiffs.  This theoretical injury cannot possibly satisfy the
"concrete injury" limitation of Article III;  if it did, any
businessman could sue to challenge any government action that
redounded to the financial benefit of his competitor.
   The district court's decision upholding standing clashes with the
basic separation of powers principles that underlie Article III.  The
plaintiffs seek to interfere with the Executive Branch's enforcement
responsibilities by having the court compel the government to
undertake a nationwide review of the activities of a particular
tax-exempt organization.  But it is not the province of the courts to
"monitor the wisdom and soundness of Executive action" such as
enforcement decisions (Laird v. Tatum, 408 U.S. 1, 15 (1972)).  This
principal has special force where, as here, the claim intrudes into
the detailed structure that Congress has erected to govern tax
enforcement.  Indeed, any judgment the plaintiffs could secure in this
suit against federal tax officials would not bind the petitioners, who
are not parties to the underlying suit.  It would merely serve as a
catalyst for further litigation to determine petitioners' tax status.
For similar reasons, prudential considerations strongly militate
against upholding the standing of these plaintiffs.  They are seeking
to vindicate not their own legal rights, but rather that of the
government to collect taxes, and their concern about tax law
enforcement is "more appropriately addressed in the representative
branches" (Allen v. Wright, 468 U.S. at 751).
                               ARGUMENT
 THE DISTRICT COURT'S ORDER HOLDING PETITIONERS IN CONTEMPT SHOULD BE
SET ASIDE FOR LACK OF JURISDICTION BECAUSE THE PLAINTIFFS DO NOT HAVE
STANDING TO BRING THE UNDERLYING LAWSUIT
   The court of appeals erred in two respects in upholding the
contempt order entered against petitioners in this case.  First, the
court was mistaken in holding that a witness held in civil contempt
for failure to comply with a discovery order can appeal that order on
jurisdictional grounds only to the limited extent of asking an
appellate court to find that the court issuing the order lacks even
"colorable" jurisdiction over the underlying lawsuit.  The consequence
of this holding is that a witness has no realistic option but to
comply with a discovery order of a court that lacks jurisdiction to
issue that order;  the witness's right to appeal from the contempt
order is illusory because the court of appeals will not intervene on
the witness's behalf even if it believes that the district court lacks
Article III jurisdiction as a matter of law.
   Second, the plaintiffs here manifestly lack standing to bring this
action, and thus, even under the unduly narrow standard of review
adopted by the court of appeals, the court erred in finding that the
district court had a "colorable" basis for jurisdiction.  The
plaintiffs seek to force the government to revoke the tax exemption of
an unrelated taxpayer on the ground that that taxpayer has not
complied with the statutory conditions for retaining that exemption.
Whether grounded in the concern of clergymen about First Amendment
issues or in the assertion of other plaintiffs that their favored
political candidates are disadvantaged, the plaintiffs' objections
boil down to a complaint that the government is not properly enforcing
the law.  Such an attempt to enlist the Judicial Branch to interfere
with the government's determinations respecting third persons,
however, is not cognizable by the federal courts because the
plaintiffs are not seeking to redress the type of concrete injury that
creates a "case or controversy" under Article III.  The plaintiffs
lack standing here as a matter of law, and it is a misuse of the
judicial process to have this case continue through burdensome
discovery and a trial when it is apparent that this lawsuit lacks the
basic constitutional prerequisites to invocation of federal court
jurisdiction.
 A. The Contempt Order Entered Against The Petitioners Should Be Set
Aside If The Plaintiffs Lack Standing To Bring The Underlying Lawsuit
Against The Federal Respondents
   1. Petitioners were held in contempt by the district court for
failing to comply with a discovery order issued in a lawsuit to which
they are not parties -- namely, a suit brought by the plaintiffs
against the federal respondents to force them to revoke petitioners'
tax exemption.  As the court of appeals acknowledged (Pet. App. 8a),
there is no doubt that petitioners are entitled to take an immediate
appeal from that contempt order, even though no final judgment has
been entered in the underlying lawsuit.  Once sanctions are imposed
upon a witness for failure to comply with a subpoena or other
discovery order, "the matter becomes personal to the witness and a
judgment as to him" (Alexander v. United States, 201 U.S. 117, 122
(1906)), and denial of the right to appeal at that time "would forever
preclude review of the witness' claim, for his alternatives are to
abandon the claim or languish in jail" (Cobbledick v. United States,
309 U.S. 323, 328 (1940)).  Accordingly, he may obtain appellate
review of the contempt judgment "before undertaking any burden of
compliance with the subpoena" (United States v. Ryan, 402 U.S. 530,
533 (1971)).
   It is well established that an appellate court is obliged to
consider, as a threshold question, the existence of subject matter
jurisdiction, both of the appellate court itself and of the lower
court.  Bender v. Williamsport Area School District, 475 U.S. 534, 541
(1986).  When a lower court lacks subject matter jurisdiction, the
appellate court is bound to notice that defect even if it is not
raised by the parties;  in that event, it has "'jurisdiction on
appeal, not of the merits but merely for the purpose of correcting the
error of the lower court in entertaining the suit'" (ibid., quoting
United States v. Corrick, 298 U.S. 435, 440 (1936)).  And such subject
matter jurisdiction, of course, is lacking if the "case or
controversy" requirement of Article III, including the requirement
that the plaintiffs have standing, is not satisfied.  Bender v.
Williamsport Area School District, 475 U.S. at 541-542.
   It also has long been recognized that a contempt judgment may be
attacked on appeal on the ground that the court that entered it lacked
subject matter jurisdiction over the underlying action and hence
lacked authority to enter the order that gave rise to the contempt.
Thus, in Ex parte Fisk, 113 U.S. 713 (1885), this Court overturned on
that basis a contempt judgment that had been entered against the
defendant for failing to submit to a pretrial examination.  The Court
stated (id. at 718):
         When * * * a court of the United States undertakes, by its
      process of contempt, to punish a man for refusing to comply with
      an order which that court had no authority to make, the order
      itself, being without jurisdiction, is void, and the order
      punishing for the contempt is equally void.
   Similarly, in In re Sawyer, 124 U.S. 200 (1888), the Court
explained in overturning a contempt judgment that "(t)he Circuit Court
being without jurisdiction to entertain the bill in equity for an
injunction, all its proceedings in the exercise of the jurisdiction
which it assumed are null and void" (id. at 221).  See also In re
Green, 369 U.S. 689 (1962);  United States v. United Mine Workers, 330
U.S. 258, 289-295 (1947);  Ex parte Rowland, 104 U.S. 604, 612 (1881).
   Relying upon these principles, petitioners took an appeal from the
district court's order holding them in contempt and argued that the
order should be set aside for lack of subject matter jurisdiction
because the plaintiffs lacked Article III standing to sue the federal
defendants.  If a district court is disabled from reaching the merits
of a controversy for lack of subject matter jurisdiction, it follows
that it may not enforce discovery orders issued in connection with the
merits of that suit.  In the words of this Court, "(t)hose who do not
possess Art. III standing may not litigate as suitors in the courts of
the United States" (Valley Forge Christian College v. Americans United
for Separation of Church & State, Inc. (Valley Forge), 454 U.S. 464,
475-476 (1982)).  This constitutional prohibition bars such litigants
from invoking the process of the federal courts to obtain papers or
testimony from their opponents or other persons.  See also United
States v. Morton Salt Co., 338 U.S. 632, 641-642 (1950).  Thus, if the
plaintiffs here lacked standing to bring the underlying lawsuit, the
district court lacked jurisdiction to enforce a discovery order at
their behest, and the judgment holding petitioners in contempt for
failing to comply with that order should be set aside on appeal.
   2. While the court of appeals expressed agreement with many of the
principles discussed above, it declined to decide whether the
plaintiffs had standing, and therefore it refused to set aside the
contempt judgment.  The court of appeals agreed that petitioners could
appeal the contempt order (Pet. App. 8a) and that an appellate court
is obliged to consider the question of the lower court's jurisdiction
(id. at 16a), and it did not dispute that a witness should not be held
in contempt for failing to comply with a discovery order that exceeds
the court's jurisdiction.  Indeed, the court acknowledged that it
would have agreed with petitioners that they could challenge the
plaintiffs' standing on a contempt appeal, except that it disagreed
with one basic premise of petitioners' challenge -- namely, that the
district court was precluded from ordering and enforcing discovery if
it lacked subject matter jurisdiction over the underlying lawsuit (id.
at 12a).  To the contrary, the court stated, the district court could
still exercise judicial power, including the power to compel
discovery, even if it lacked subject matter jurisdiction (id. at
12a-13a).  The court concluded that the contempt order could be set
aside only if the district court lacked even a "colorable basis" for
exercising subject matter jurisdiction (id. at 18a-20a).
   The result reached by the court of appeals is anomalous.  The court
recognized that the question of the plaintiffs' standing is a
"substantial" one (Pet. App. 19a), and that question undoubtedly is a
legal one that the court of appeals could have resolved.  But the
court nevertheless determined that it must close its eyes to that
legal question, with the consequence that the petitioners are left
with no alternative but to comply with burdensome discovery in a
lawsuit in which it is likely that the court lacks subject matter
jurisdiction.  Moreover, as the dissent pointed out (Pet. App.
38a-39a), the "colorable basis" standard established by the majority
to govern review on appeal does not appear to provide any greater
discipline to prevent a district court from exceeding its jurisdiction
than does the narrow standard for the availability of mandamus.
Accordingly, at least in this context, the well-established right to
appeal from a contempt judgment would be rendered meaningless as a
practical matter (see id. at 32a-34a).
   In our view, the court erred in fashioning this severe limitation
on the right to appeal a contempt judgment that exceeds the district
court's jurisdiction.  A correct interpretation of the decisions of
this Court relied upon by the court of appeals demonstrates that there
is no obstacle to consideration of the lower court's subject matter
jurisdiction on an appeal from a judgment of civil contempt entered to
enforce compliance with a discovery order.
   3. The court of appeals appears to have derived its "colorable
basis" standard from this Court's decision in United States v. United
Mine Workers, supra.  In that case, the United States, which had taken
over operation of most of the country's coal mines, sought declaratory
and injunctive relief in federal district court against a strike
threatened by the union.  The union claimed that the Norris-LaGuardia
Act, 29 U.S.C. 101, deprived the court of jurisdiction to enjoin a
strike.  The district court issued a temporary restraining order
against a strike, while it considered the Norris-LaGuardia issue.  The
union and its president disobeyed the temporary restraining order, and
they were held in criminal and civil contempt and fined.  On appeal,
the contemnors argued that, because of the Norris-LaGuardia Act, the
district court lacked subject matter jurisdiction to enter the
temporary restraining order that led to the contempt.
   This Court upheld the contempt judgments, finding that the
Norris-LaGuardia Act was not applicable (see 330 U.S. at 269-289).  Of
particular relevance here, however, is this Court's discussion of the
"alternative grounds which support the power of the District Court to
punish violations of its orders as criminal contempt" (id. at 289) --
what the court of appeals below termed a court's "jurisdiction to
determine its jurisdiction" (Pet. App. 13a).  This Court explained
that, even if it had ultimately concluded that the Norris-LaGuardia
Act divested the district court of jurisdiction, "the District Court
had the power to preserve existing conditions while it was determining
its own authority to grant injunctive relief" (330 U.S. at 293).  /5/
Accordingly, unless "the question of jurisdiction (were) frivolous and
not substantial" (ibid.), the issuance of the temporary restraining
order would still have been a lawful exercise of the court's power,
and the judgment of criminal contempt would not have been set aside.
   In the course of this discussion, however, the Court was careful to
distinguish between civil and criminal contempt (330 U.S. at 2294-295
(footnote omitted)):
         It does not follow, of course, that simply because a
      defendant may be punished for criminal contempt for disobedience
      of an order later set aside on appeal, that the plaintiff in the
      action may profit by way of a fine imposed in a simultaneous
      proceeding for civil contempt based upon a violation of the same
      order.  The right to remedial relief falls with an injunction
      which events prove was erroneously issued, * * * and a fortiori
      when the injunction or restraining order was beyond the
      jurisdiction of the court.
   The Court therefore concluded that, "(i)f the Norris-LaGuardia Act
were applicable in this case, the conviction for civil contempt would
be reversed in its entirety" (id. at 295).
   Thus, far from supporting the court of appeals' holding here, this
Court's opinion in United Mine Workers directly contradicts it.  In
concluding the contrary -- that United Mine Workers indicates that it
could not inquire into the jurisdiction of the lower court other than
to determine whether there existed a "colorable basis" for
jurisdiction -- the court of appeals reasoned that United Mine Workers
showed that "(a) lack of subject matter jurisdiction does not disable
a district court from exercising all judicial power" because it may
inquire into its own jurisdiction (Pet. App. 12a).  The court further
reasoned that this power would extend to "(c)ompelling a recalcitrant
witness to furnish unprivileged evidence," and that, in order to
preserve "the orderly processes of the courts," such an order must be
obeyed upon pain of criminal contempt, even if it is subsequently
determined by an appellate court that the trial court lacks
jurisdiction (id. at 13a).  The court then concluded that there is no
basis for distinguishing between civil and criminal contempt for these
purposes and therefore that a civil contempt sanction should also be
upheld, irrespective of whether it is ultimately determined that the
trial court lacked jurisdiction over the lawsuit (id. at 13a-15a).
   As the dissent cogently explains (Pet. App. 36a-38a), the
majority's analysis is flawed in two major respects.  First, the
United Mine Workers principle that a court must be able to exercise
some power in order to determine its jurisdiction -- and that the use
of that power is enforceable by criminal contempt -- does not mean
that there are no limits on what a court without jurisdiction can do.
In particular, a court is not empowered to issue discovery orders
going to the merits of a case over which it lacks jurisdiction.
   Second, the majority erred in failing to recognize that civil
contempt cannot be equated with criminal contempt for these purposes.
Criminal contempt sanctions are imposed "to vindicate the authority of
the court" (Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441
(1911)).  When someone flouts that authority -- for example, by
"disrupt(ing) the courtroom" (Pet. App. 13a) -- his conduct is
punishable as an act of criminal contempt, and there is no reason why
he should go unpunished simply because it turns out that the court
lacked subject matter jurisdiction over the case in which the
disruption occurred.  By contrast, civil contempt "is remedial, and
for the benefit of the complainant" (Gompers v. Bucks Stove & Range
Co., 221 U.S. at 441).  The "ultimate object" of civil contempt is
"the enforcement of the rights and remedies of a litigant" (11 C.
Wright & A. Miller, Federal Practice and Procedure Section 2960, at
584 (1973)).  /6/ Therefore, when it is determined that there is no
jurisdiction over the underlying lawsuit, the basis for the civil
contempt judgment disappears, and there is no reason to enforce it.
   That is precisely the conclusion this Court reached in United Mine
Workers, where it stated that "(t)he right to remedial relief (in the
form of civil contempt sanctions) falls with an injunction which
events prove * * * was beyond the jurisdiction of the court" (330 U.S.
at 295).  The Court's ultimate conclusion that, if the district court
had lacked jurisdiction to enter the restraining order, "the
conviction for civil contempt (for failing to comply with that order)
would be reversed in its entirety" (ibid.) is fully applicable here.
/7/ That conclusion requires that the contempt judgment against
petitioners be set aside if the district court did not have
jurisdiction to enforce the discovery order because of the plaintiffs'
lack of standing, and therefore the court of appeals erred in
sustaining the contempt judgment on a mere showing of a "colorable
basis" for standing.  /8/
   4. The court of appeals also relied heavily on this Court's
decision in Blair v. United States, 250 U.S. 273 (1919), to justify
its refusal to determine whether the district court had jurisdiction.
In Blair, several witnesses were held in civil contempt for refusing
to testify before a grand jury that was investigating violations of
the federal election laws.  Stating that a witness "is not interested
to challenge the jurisdiction of court or grand jury over the
subject-matter that is under inquiry," the Court held that the
witnesses could not challenge the contempt judgment on the ground that
the election laws were unconstitutional and hence the grand jury
lacked "jurisdiction" to conduct its investigation (see id. at 279).
The court of appeals below held that Blair was not restricted to the
grand jury context, but rather "was intended to state a rule of wider
application" -- namely, that any witness, even in a civil case, who
has been held in contempt can challenge only "whether there exists a
colorable basis for exercising subject matter jurisdiction," but may
not mount "a full-scale challenge to the correctness of the district
court's exercise of such jurisdiction" (Pet. App. 10a).
   There are, however, two fundamental distinctions between the issue
in Blair and the question presented here.  First, as the dissent
explains (Pet. App. 34a-36a), the rationale of Blair was addressed to
the grand jury context in which it arose, and that decision does not
control here where the witness challenges the Article III jurisdiction
of the court over the lawsuit that underlies the contempt sanction.
The power of the district court to enforce the discovery order issued
in this case was derivative from its jurisdiction over the underlying
lawsuit, and therefore depended upon satisfaction of the requirements
of Article III.  But a grand jury "does not depend on a case or
controversy for power to get evidence." United States v. Powell, 379
U.S. 48, 57 (1964).  See also United States v. Bisceglia, 420 U.S.
141, 148 (1975).  Rather, the grand jury is an investigative body
whose inquiries may be wide-ranging.  Thus, as the dissent explained,
"the jurisdiction of the grand jury is not dependent upon the
constitutionality of the statutes which prohibit the conduct being
investigated" (Pet. App. 34a).  Hence, "a declaration that the statute
in Blair was unconstitutional would not (have given) the witness the
relief he sought," and therefore he was "not interested" to challenge
the validity of that statute on his contempt appeal (Pet. App. 34a).
   Indeed, the opinion in Blair reflects this Court's reliance on the
special nature of the grand jury.  See, e.g., United States v.
Calandra, 414 U.S. 338, 349-350 (1974).  The Court in Blair noted that
a grand jury investigation is not "preceded by a formal charge" (250
U.S. at 282).  The scope of its inquiries is not "limited narrowly by
questions of propriety or forecasts of the probable result of the
investigation, or by doubts whether any particular individual will be
found properly subject to an accusation of crime" (ibid.).  In
contrast to a lawsuit, where the nature of the dispute is framed at
the outset by the complaint, "the identity of the offender, and the
precise nature of the offense, if there be one, normally are developed
at the conclusion of the grand jury's labors, not at the beginning"
(ibid.).  Therefore, a challenge to the subject matter of the grand
jury's investigation cannot reasonably be made before the
investigation is concluded;  the grand jury at least has "jurisdiction
to investigate the facts in order to determine the question whether
the facts show a case within (its) jurisdiction" (id. at 283).  By
contrast, the district court's jurisdiction over the lawsuit here can
be assessed at the outset of the litigation simply by examining the
complaint.
   Moreover, Blair is not controlling here for another independent
reason.  In seeking to challenge the substantive power of Congress to
enact the statute that was the subject of the grand jury investigation
in Blair, the witnesses were asserting a contention about what in a
later prosecution would become part of the merits of the case, rather
than a challenge to the power of the federal courts under Article III
to decide the merits (including the question of the statute's
constitutionality).  Hence, we submit that even a witness called to
testify at a trial could not justify refusal to do so on the grounds
asserted by the grand jury witnesses in Blair.
   In short, neither Blair nor any other decision of this Court
supports the court of appeals' holding here.  On the contrary, under
this Court's jurisprudence, the district court's lack of Article III
jurisdiction over the underlying lawsuit means that the court did not
have the power to compel petitioners to comply with the plaintiffs'
discovery request, and that the petitioners should not be compelled to
submit to the district court's discovery orders without an opportunity
on appeal to challenge the court's jurisdiction.  Thus, the court of
appeals erred in limiting its inquiry to whether the district court's
jurisdiction was "colorable;" it should have determined whether the
district court in fact has jurisdiction over the underlying lawsuit.
 B. The Plaintiffs Lack Standing To Challenge Petitioners' Tax
Exemption
   The district court's holding that the plaintiffs have standing to
sue to revoke the tax exemption of the Roman Catholic Church cannot be
reconciled with established principles governing standing.  The
theories of "Establishment Clause standing" or "voter standing"
recognized by the district court plainly do not allege a sufficiently
concrete and redressable personal injury to satisfy the strictures of
Article III.  On the contrary, these allegations of injury do not
materially distinguish the plaintiffs from any citizen who seeks to
"have the Government act in accordance with law" (Allen v. Wright, 468
U.S. 737, 754 (1984)).  That type of challenge is not cognizable in
federal court.  Indeed, the district court's holding that the
plaintiffs have standing so clearly contravenes principles well
established by this Court that it cannot reasonably be maintained that
the complaint in this case establishes even a "colorable" basis for
standing.  Accordingly, even under the unduly narrow standard of
review adopted by the court of appeals, that court erred in failing to
set aside for lack of jurisdiction the order holding petitioners in
contempt.
 1. A Plaintiff Lacks Standing To Maintain A Suit Challenging
Governmental Action Directed At An Unrelated Party Unless He Alleges
That He Has Personally Suffered A Concrete Injury That Is Fairly
Traceable To The Government's Challenged Conduct And That Is
Redressable By The Requested Relief
   The basic principles that govern the question whether a plaintiff
has standing to maintain a lawsuit in federal court are well
established.  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) (emphasis in original), quoting Baker v. Carr, 369 U.S. 186,
204 (1962)).  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. at
751).  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)
(citation omitted)).  The Court has explained that these requirements
arise out of a "single basic idea -- the idea of separation of powers"
(Allen v. Wright, 468 U.S. at 752) -- in that they demarcate
fundamental limits on the role of the federal courts in our tripartite
system of government.
   In addition to these constitutional requirements, this Court has
also recognized that the standing doctrine embraces certain prudential
limitations on the exercise of federal jurisdiction, including "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 summarized this aspect of the standing inquiry
as "(e)ssentially, * * * whether the constitutional or statutory
provision on which the claim rests properly can be understood as
granting persons in the plaintiff's position a right to judicial
relief" (Warth v. Seldin, 422 U.S. at 500 (footnote omitted)).  In
short, a federal court "'is not the proper forum to press' general
complaints about the way in which government goes about its business"
(Allen v. Wright, 468 U.S. at 760, quoting City of Los Angeles v.
Lyons, 461 U.S. 95, 112 (1983)).
   On several occasions in recent years, the Court has reaffirmed
these basic standing principles and emphasized that their effect is
generally to deny access to the federal courts by plaintiffs who seek
to litigate the claim that the government is failing to enforce its
laws -- in particular, laws relating to tax exemptions -- against a
third party.  Most recently, in Allen v. Wright, supra, the Court held
that the parents of black public school children lacked standing 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 could
not alone give rise to standing:  "'(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'" (468 U.S.
at 754 (quoting Valley Forge, 454 U.S. at 483)).
   The Court further held that the plaintiffs' claim that blacks
suffered "a stigmatic injury, or denigration" (468 U.S. at 754), as a
result of discriminatory government conduct (namely, recognition of
tax exemptions for segregated schools) alleged no concrete personal
injury that could give rise to standing.  The claim of denigration was
too abstract to be judicially cognizable;  rather, such an injury
could confer standing only if the stigma were allegedly suffered "as a
direct result of having personally been denied equal treatment" (id.
at 755).  Otherwise, the Court explained, "standing would extend
nationwide to all members of the particular racial groups against
which the Government was alleged to be discriminating by its grant of
a tax exemption" (id. at 755-756).  The Court also rejected the
plaintiffs' attempt to base standing on the assertion that granting
the tax exemptions to the private schools "diminished (their
children's) ability to receive an education in a racially integrated
school" (id. at 756).  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 mere speculation whether the
withdrawal of tax exemptions would affect the racial balance in the
public schools attended by the plaintiffs' children (id. at 758).
   In Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S.
26 (1976), this Court also found no 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.  This Court held
that the plaintiffs' allegations of injury in the form of the denial
of services by these hospitals did not confer standing because it was
"purely speculative" whether the alleged injury could fairly be traced
to the government's tax enforcement action "or instead result(s) from
decisions made by the hospitals without regard to the tax
implications" (426 U.S. at 42-43).  And in Valley Forge, the Court
held that the plaintiffs lacked standing to challenge the conveyance
of surplus federal property to a sectarian institution because they
"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 (emphasis in
original)).  The allegations of personal injury in the instant case
are not materially different from the allegations in these decisions
of this Court, and it follows that here also the plaintiffs lack
standing to challenge the tax exemption of an unrelated party.
 2. The Plaintiffs' Allegation That They Are Denigrated By The
Conferral Of A Tax Exemption Upon The Catholic Church Does Not Assert
An Injury That Is Cognizable In Federal Court
   The district court has held that the plaintiff members of the
clergy, who hold and teach religiously-inspired pro-abortion views,
have "Establishment Clause standing" because they are "denigrated" by
the grant of a tax exemption to the Catholic Church, which the court
viewed as "government endorsement of a theology contrary to (the
plaintiffs') guiding principles" (see Pet. App. 68a).  /9/ The court
found that this alleged denigration causes a "discrete spiritual
injury" to these plaintiffs because it "diminishes their position in
the community, encumbers their calling in life, and obstructs their
ability to communicate effectively their religious message" (ibid.).
The court added that "(t)he granting of a uniquely favored tax status
to one religious entity is an unequivocal statement of preference that
gilds the image of that religion and tarnishes all others" (id. at
69a).
   This asserted "denigration" injury is indistinguishable from the
"stigmatic" injury alleged in Allen and held by this Court not to
constitute a judicially cognizable injury.  /10/ In Allen, the
plaintiffs claimed that granting tax exemptions to schools "'that
treat members of their race as persons of lesser worth'" (468 U.S. at
749 (citation omitted)), denigrated the members of the race that had
been discriminated against (id. at 752);  here, the district court
held that granting a tax exemption to one religious entity "tarnishes
all other() (religions)" (Pet. App. 69a).  In neither case, however,
is there alleged any injury that is "suffered as a direct result of
having personally been denied equal treatment" by the federal
defendants (468 U.S. at 755).  The plaintiffs' ability to minister to
their congregations or to teach them that their religion "command(s)
consideration of abortion as the morally required response to
pregnancy" (Pet. App. 68a (footnote omitted)) is not affected by the
grant of a tax exemption to the Catholic Church and would not be
enhanced by the relief the plaintiffs seek.  /11/
   The district court's statement that the stigma allegedly incurred
by the clergy plaintiffs "diminishes their position in the community,
(and) encumbers their calling in life" (Pet. App. 68a) does not
describe a judicially cognizable injury.  The black plaintiffs in
Allen made essentially the same claim -- loss of status in the
community and on the job are a large part of what it means to be
"denigrated." If this type of allegation were sufficient to confer
standing, virtually any litigant could challenge any government action
that he views as unduly favorable to someone else simply by alleging
what cannot be disproved -- namely, that he suffers denigration,
stigma, or like form of discomfiture as a result of the challenged
action.  Standing would then require little, if anything, more than
the mere motivation to bring suit.
   Moreover, while the clery plaintiffs, because of their profession,
may be particularly sensitive to a perceived unequal treatment of
religion, that fact does not separate them from their co-religionists
for standing purposes;  "standing is not measured by the intensity of
the litigant's interest or the fervor of his advocacy" (Valley Forge,
454 U.S. at 486).  See also Diamond v. Charles, No. 84-1379 (Apr. 30,
1986), slip op. 11 (physician cannot establish standing to challenge
government failure to enforce laws against other physicians by
"cloak(ing his claim) in the nomenclature of a special professional
interest").  Indeed, the present case, no less than Allen, illustrates
why recognition of "denigration" as a judicially cognizable injury
would profoundly subvert the limitations of Article III.  In Allen,
the Court hypothesized that the plaintiffs' theory could enable a
"black person in Hawaii (to) challenge the grant of a tax exemption to
a racially discriminatory school in Maine" (468 U.S. at 756).  Here,
that hypothetical comes to life;  clergy from Florida (J.A. 53) and
New York (e.g., J.A. 43, 45) are urging the court to scrutinize the
conduct of Catholic priests in Texas and South Dakota (J.A. 12).  In
short, while the clergy plaintiffs and other non-Catholics may well
feel denigrated by what they perceive as unduly favorable government
treatment of another religious group, that feeling is not the sort of
concrete and palpable injury that is an Article III prerequisite to
invocation of the jurisdiction of the federal courts.  /12/
   Indeed, the denigration claim is closely analogous to the standing
claim rejected by this Court in Valley Forge.  There, plaintiffs with
strongly held views about separation of church and state challenged a
government transfer of property to a religious institution, relying
upon a "'shared individuated right to a government that "shall make no
law respecting the establishment of religion"'" (454 U.S. at 482
(citations omitted)).  This Court held that the plaintiffs lacked
standing, however, because they failed to identify "any personal
injury suffered by them as a consequence of the alleged constitutional
error";  their "psychological" distress at government action, even if
"phrased in constitutional terms," established no basis for standing
(id. at 485-486 (emphasis in original)).  The plaintiffs here
similarly base their "Establishment Clause standing" claim essentially
on "psychological" distress caused by government action that they view
as favoring another religious entity;  this type of generalized,
abstract injury is not judicially cognizable.
 3. The Plaintiffs' Allegation That The Catholic Church's Tax
Exemption Gives Opponents Of Abortion An Unfair Advantage Over Them In
The Political Process Does Not Provide A Basis For Standing Because It
States No Injury Fairly Traceable To The Federal Defendants Or
Redressable By The Requested Relief
   a. The district court also held that the plaintiffs had established
what it called "voter standing" based on their alleged status as
"voters" participating "in the public debate on abortion" (J.A. 15,
17).  The complaint alleged that the Catholic Church had "attracted
and used tax-exempt, tax-deductible dollars to elect candidates
sympathetic to its position, whereas the plaintiffs cannot and have
not done so," thereby enabling the Church to obtain a "financial and
political advantages" (J.A. 15).  The complaint concluded that the tax
exemption injured the plaintiffs because "(i)n the inherently
competitive political arena an advantage granted to one competitor
automatically constitutes a handicap to the others" (ibid.).  Relying
on Baker v. Carr, 369 U.S. 186 (1962), the district court held that
these allegations established "voter standing" to challenge "alleged
government action which has improperly biased the political process
against the discrete group to which they belong" (Pet. App. 72a).  The
court of appeals in turn relied entirely on this theory to support its
finding that the plaintiffs had made a "colorable" claim of standing,
stating that the plaintiffs "have claimed direct, personal injury
arising from the fact that the federal defendants' failure to enforce
the political action limitations of section 501(c)(3) has placed the
plaintiffs at a competitive disadvantage with the Catholic Church in
the arena of public advocacy on important public issues" (Pet. App.
19a).
   This "competitive disadvantage" allegation simply does not
establish a basis for standing to invoke the jurisdiction of an
Article III court.  Standing cannot be conferred merely on the basis
of the statement that the plaintiffs are necessarily disadvantaged in
the political arena as a logical corollary to the fact that the
Church's tax exemption allegedly gives it an advantage.  That
statement, standing alone, does not allege a concrete injury;  it
merely states that the plaintiffs "suffer() in some indefinite way in
common" (Massachusetts v. Mellon, 262 U.S. 447, 488 (1923)) with every
voter or participant in the political arena that does not share the
Church's views.  Indeed, an essentially similar complaint could be
made by any participant in the political process about any aspect of
the tax or regulatory treatment of any other participant in that
process.  Such a complaint of resulting "imbalance in the electoral
and legislative process" (Pet. App. 74a) no more represents a
personal, judicially cognizable, injury to the plaintiffs than does
their "denigration" claim.
   Nor have plaintiffs alleged that this asserted "competitive
disadvantage" has some concrete effect that causes personal injury to
themselves.  In this voter context, the essence of a claim of concrete
injury must be that the electoral fortunes of causes or candidates
that the plaintiffs support are being harmed by the existence of the
Church's tax exemption and, concomitantly, that that harm would be
remedied by the relief requested here.  But, as even the district
court acknowledged (see Pet. App. 73a-74a), the Church's tax exemption
does not have that kind of direct effect on electoral results or
legislative decisions;  rather, the exemption's effect on such
concrete matters is at most "diffuse, minute, and indeterminable"
(Daughtrey v. Carter, 584 F.2d 1050, 1056 (D.C. Cir. 1978)).
Accordingly, the plaintiffs here have alleged no concrete injury to
themselves as "voters" that can be traced to the government action
they seek to challenge, and hence they fail to meet the fundamental
standing requirements this Court has recognized.
   b. This Court has repeatedly emphasized that an alleged injury can
confer Article III standing only if it "fairly can be traced to the
challenged action of the defendant, and (is) not injury that results
from the independent action of some third party not before the court"
(Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. at
41-42).  See also Warth v. Seldin, 422 U.S. at 505.  The Eastern
Kentucky case, like this one, involved a suit challenging the
Commissioner's grant of a tax exemption to third parties -- hospitals
that had denied medical care to the indigent plaintiffs.  The
plaintiffs challenged the hospitals' tax exemption on the ground that
a hospital that does not treat indigent patients in the plaintiffs'
position is not a "charitable institution that should be tax-exempt
under Section 501(c)(3).
   This Court held that the injury suffered by the plaintiffs did not
give them standing to challenge the hospitals' tax exemption.  The
Court explained that the only defendants were the federal officials
involved, and the only action challenged in the suit was the grant of
the tax exemption.  But it was "speculative" whether the hospitals'
failure to treat the plaintiffs was attributable to the Commissioner's
actions, rather than to "decisions made by the hospitals without
regard to the tax implications" (426 U.S. at 42-43).  And it was
"equally speculative whether the desired exercise of the Court's
remedial powers in this suit would result in the availability to (the
plaintiffs) of such (medical) services" (id. at 43).  Rather, it was
"just as plausible that the hospitals * * * would elect to forgo
favorable tax treatment" (ibid.).  The Court concluded, therefore,
that the suit should be dismissed for lack of standing because the
plaintiffs had failed "'to establish that, in fact, the asserted
injury was the consequence of the defendants' actions, or that
prospective relief will remove the harm'" (id. at 44-45 (quoting Warth
v. Seldin, 422 U.S. at 505)).
   In Allen v. Wright, supra, the Court similarly held that the
plaintiffs lacked standing because the alleged injury -- inadequate
desegregation of the public schools -- was not properly traceable to
the tax exemptions that they were challenging.  The plaintiffs
contended that the withdrawal of tax exemptions from segregated
private schools would yield changes that would reduce their
enrollment, with some students transferring to, and thus further
desegregating, the public schools.  The Court held, however, that this
connection was too tenuous to permit the public school parents to
challenge the tax exemptions of the private schools.  The Court
explained that it was "entirely speculative" whether "withdrawal of a
tax exemption from any particular school would lead the school to
change its policies" and "just as speculative" whether "any given
parent of a child attending such a private school would decide to
transfer the child to public school as a result of any changes in
educational or financial policy made by the private school once it was
threatened with loss of tax-exempt status" (468 U.S. at 758).
Therefore, the "chain of causation" that formed the basis for the
claim of standing "involve(d) numerous third parties * * * whose
independent decisions may not collectively have a significant effect
on the ability of public school students to receive a desegregated
education" (id. at 759).
   As in Allen and Eastern Kentucky, the causal connection here
between the third party's tax exemption and any concrete injury
suffered by the plaintiffs is too speculative to confer standing to
sue the federal defendants.  It is pure conjecture whether a change in
the status of the Catholic Church's tax exemption would enhance the
plaintiffs' position in the abortion controversy.  First, it is
unknown whether withdrawal of the Church's tax exemption would lead to
any change in the Church's resources and activities.  Obviously, many
people contribute to the Church for reasons that have little or
nothing to do with the tax consequences;  a change in the Church's
tax-exempt status would not necessarily affect their level of
contributions to any significant degree.  And, even if there were some
overall reduction in contribution levels, one cannot predict how that
would affect the Church's alleged political activity.  Moreover, a
change in the Church's policies, standing alone, would not alleviate
the injury allegedly suffered by petitioners.  The candidates and
causes that the plaintiffs support in the abortion controversy can be
advanced in the political arena only through the decisions of numerous
voters.  It is entirely speculative whether a hypothetical change in
the Church's political activity would influence the decisions of
enough voters to have an impact on any given election.
   Indeed, the plaintiffs and the district court do not appear to
dispute that the relief the plaintiffs seek here will not necessarily
advance their position in the abortion controversy.  The plaintiffs
state (Br. in Opp. 54) that it is "irrelevant" whether "the Church
will continue to be active politically" if its exemption is revoked;
the district court agreed that "(t)he standing question is unaffected
by the church defendants' possible resolve to continue their current
rate of political activity" despite an adverse decision with respect
to their tax exemption (Pet. App. 73a-74a).  But these observations
clearly betray a misconception of the controlling legal principles.
It is fundamental that Article III requires that the plaintiff be
personally injured by the action he is challenging and that the injury
will be redressed by the relief he seeks.  See Allen v. Wright, 468
U.S. at 751, 753 n.19.  Thus, Article III does not permit the
plaintiffs to allege an injury consisting of a disfavored position in
the abortion debate or other political controversy as the basis for a
challenge to the validity of the Church's tax exemption, since that
unfavorable position cannot properly be said to result from the
granting of the tax exemption or to be likely to be altered by its
withdrawal.  In essence, the plaintiffs' complaint presents only
another species of a suit brought by a person understandably
distressed, but not directly affected, by what he views as the
government's failure to enforce the law against a third party.  See
Valley Forge, 454 U.S. at 485.  /13/
   In sum, the injury of which the plaintiffs complain in this case --
an alleged disadvantage in the political arena for the position they
espouse in the abortion controversy -- is not one that can be remedied
by the Commissioner of Internal Revenue or the Secretary of the
Treasury, who are the defendants in this action.  Rather, any
improvement in the plaintiffs' position in the abortion controversy
depends largely on the "independent action of * * * third part(ies)
not before the court" (Eastern Kentucky, 426 U.S. at 42).  Therefore,
as in Eastern Kentucky and Allen, the plaintiffs have suffered no
concrete injury traceable to the conduct of the federal defendants, or
redressable by the requested relief, that can justify this lawsuit
against them.
   Moreover, quite apart from the fact that the relief requested by
the plaintiffs will not redress the personal injury of which they
complain, as a practical matter the plaintiffs cannot possibly obtain
in this lawsuit the relief that they request.  The plaintiffs seek a
declaration that the government has violated the law in failing to
revoke the Church's tax exemption and an order directing the
government to revoke the Church's tax exemption and to assess and
collect back taxes due as a result of the revocation (J.A. 18-19).
But the Church was long ago dismissed as a party from this suit.  If
the district court were to enter an order directing the federal
defendants 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 district court's decision would have no res judicata or
collateral estoppel effect in later litigation.  Thus, far from ending
the matter, a ruling here in the plaintiff's 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.  Thus, this lawsuit
well illustrates the concern repeatedly 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).
   c. The fact that the injury claimed by the plaintiffs assertedly
arises out of their status as "voters" provides no basis for departing
from the basic standing principles we have discussed.  In particular,
the district court's reliance on Baker v. Carr, supra, is in error.
Baker was a suit brought against state officials to challenge the
malapportionment of the voting district in which the plaintiffs
resided and were registered to vote.  The plaintiffs lived in a
"disfavored" county, one with a "gross disproportion of representation
to voting population" (369 U.S. at 207).  The Court found that the
plaintiffs suffered concrete injury to their voting power on that
account -- an injury that the Court analogized to "dilution" of the
vote by "a false tally" or by "stuffing of the ballot box" (id. at
208).  Baker thus involved a "concrete injury to fundamental voting
rights" (Schlesinger v. Reservists Committee to Stop the War, 418 U.S.
208, 223 n.13 (1974)) and does not represent a departure from the
general standing principles more recently reaffirmed in Eastern
Kentucky and Allen.
   The claim of the plaintiffs here is quite different.  They clearly
do not claim a dilution in voting power;  as the district court
acknowledged (Pet. App. 73a), they "do not complain of diminished
representation and do not demand increases in actual representation."
They do not claim that any candidate has been deprived of an
opportunity to run for office or to appear on a ballot, nor do they
claim that any voter has been hampered in an effort to vote for the
candidate of his choice.  In short, the plaintiffs do not challenge
any aspect of the electoral process.  What they do claim is that the
tax exemption conferred upon the Catholic Church gives the Church a
financial advantage over the plaintiffs in an area in which they
allegedly compete, namely, the political arena.  This is not truly a
challenge based on the plaintiffs' status as "voters," and it surely
bears no resemblance to the claim upon which standing rested in Baker.
   In Winpisinger v. Watson, 628 F.2d 133 (1980), the District of
Columbia Circuit rejected a "voter standing" contention somewhere akin
to that of the plaintiffs here, and that court's analysis is
instructive.  The plaintiffs in Winpisinger were supporters of Senator
Kennedy in his contest with President Carter for the Democratic
presidential nomination.  They alleged that President Carter's
campaign workers were illegally using federal funds for campaign
purposes, thereby giving the President an unfair advantage over
Senator Kennedy in the campaign.  Even though the injury complained of
by the plaintiffs was focused on a single electoral contest between
two candidates, and hence was considerably more immediate and focused
than the general disadvantage claimed here, the court of appeals
correctly held that the plaintiffs in Winpisinger lacked standing
because the alleged injury was not directly traceable to the
challenged conduct.  The court explained that "(t)he endless number of
diverse factors potentially contributing to the outcome of state
presidential primary elections, caucuses and conventions forecloses
any reliable conclusion that voter support of a candidate is 'fairly
traceable' to any particular event";  in order to connect the alleged
injury with the challenged actions of the Carter supporters, the court
would have had "to accept a number of very speculative inferences and
assumptions" (628 F.2d at 139).  In sum, the District of Columbia
Circuit correctly held that a plaintiff does not have standing to
challenge a perceived advantage granted to someone else merely because
the two parties are adversaries in the political arena (where the
alleged advantage does not directly affect participation in that
arena).  /14/ The plaintiffs in this case have made no allegation of a
more concrete injury that would justify departing from this rule here.
 /15/
   d. In fact, the district court's use of the term "voter standing"
to characterize the plaintiffs' claim is a misnomer.  As the
plaintiffs state in their complaint, the gravamen of their claim is
that the Catholic Church is their "competitor" in the political arena,
and therefore any advantage conferred upon the Church "automatically
constitutes a handicap" to the plaintiffs (J.A. 15).  The court of
appeals similarly recognized that the plaintiffs' contention boiled
down to a complaint that they have been placed at a "competitive
disadvantage with the Catholic Church in the arena of public advocacy"
(Pet. App. 19a & n.3).  Their claim accordingly is better
characterized as one of "competitor standing";  the electoral or
political arena merely happens to be a particular area in which the
plaintiffs and the Catholic Church "compete."
   Viewed in this light, it is once again apparent that the injury
complained of by the plaintiffs cannot be sufficient to confer
standing to challenge the Church's tax exemption.  This Court, of
course, has recognized that a competitive injury can confer standing
on a plaintiff to challenge an action that most directly affects a
third party.  See, e.g., Clarke v. Securities Industry Ass'n, No.
85-971 (Jan. 14, 1987);  Association of Data Processing Service
Organizations, Inc. v. Camp, 397 U.S. 150 (1970).  But an absolute
prerequisite to such standing, derived from Article III, is that the
plaintiff himself must suffer an "injury in fact" from the challenged
action (see id. at 152).  There was no doubt that this requirement was
met in Data Processing and Clarke, where the dispute was whether a
class of companies would be allowed to compete with the plaintiffs in
a particular business (see Clarke, slip op. 5, 14;  Data Processing,
397 U.S. at 152).  Here, however, the injury alleged by the plaintiffs
is not sufficient to justify a claim of "competitor standing."
   The plaintiffs' argument on this point is based on a series of
related assumptions.  The plaintiffs allege that they are competitors
of the Catholic Church in the political arena and that any "advantage
granted to one competitor automatically constitutes a handicap to the
others" (J.A. 15).  At the same time, the plaintiffs maintain that the
Church's tax-exempt status necessarily gives it a "financial
advantage" (ibid.).  And this financial advantage apparently
automatically gives the Church a "political advantage" (ibid.).
Altogether, what the plaintiffs 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.
   This type of assumed injury, however, clearly is not sufficient to
satisfy the standing criteria set forth by this Court.  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, one
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.  All
of these claims fail to satisfy Article III because 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.  The competitive injury alleged by the plaintiffs
here is no different in principle from the hypothetical cases we have
described;  the only injury the plaintiffs allege 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 the plaintiffs' competitor necessarily injure them in the 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.
   The deficiencies of the plaintiffs' theory are illuminated in
American Society of Travel Agents, Inc. v. Blumenthal, 566 F.2d 145
(D.C. Cir. 1977), cert. denied, 435 U.S. 947 (1978).  The plaintiffs
there were travel agents who brought suit against the government
challenging the tax treatment of certain tax-exempt organizations who
offered travel programs.  The plaintiffs' contention was that the
financial benefits of tax-exempt status enjoyed by these organizations
gave them an "unfair competitive advantage in the sale of tour
packages" (566 F.2d at 148).  The plaintiffs did not, however, point
to any concrete effect on their business;  rather, they alleged an
injury from the government's "creation of an unfair competitive
atmosphere" and sought "relief in the form of the more congenial
competitive environment which would supposedly result from proper tax
enforcement policy" (id. at 149).  Relying primarily on this Court's
decision in Eastern Kentucky, the court of appeals concluded that
"this sort of injury claim (is) too speculative to support standing"
(ibid.) and does not establish "injury in fact" (id. at 148).  The
court of appeals unequivocally rejected the plaintiffs' reliance on
Data Processing, stating that "we do not believe that Data Processing
should be read to endorse standing for any private business,
individual or corporate, which wishes to contest the tax treatment of
a competitor" (566 F.2d at 151).  For the same reasons, the
plaintiffs' effort here to challenge their competitor's tax exemption
-- in which a causal connection between the tax treatment and any
concrete injury suffered by the plaintiffs is considerably more
attenuated and speculative than it was in American Society of Travel
Agents -- fails to satisfy the strictures of Article III.
 4. The District Court's Assumption Of Jurisdiction Over This Lawsuit
Is Fundamentally At Odds With The Separation Of Powers Principles That
Underlie The Doctrine Of Standing
   This Court has explained that "the pervasive and fundamental notion
of separation of powers" plays a basic role in the Article III
standing inquiry in that it "counsels 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 752, 761).  See also Valley
Forge, 454 U.S. at 474-475.  In Allen, the Court concluded that
conferring standing on the plaintiffs to challenge the tax exemption
of a third party could not be squared with this basic principle.  That
is no less true here.  The plaintiffs 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 suits challenging an Executive agency's
enforcement program, even when "premised on allegations of several
instances of violations of law," are "rarely if ever appropriate for
federal-court adjudication" (Allen v. Wright, 468 U.S. at 759-760).
In the absence of an assertion of concrete and remediable injury
directly attributable to unlawful government conduct, the courts do
not assume the "amorphous (task of) general supervision of the
operations of government" (United States v. Richardson, 418 U.S. 166,
192 (1974) (Powell, J., concurring)), nor act "as virtually continuing
monitors of the wisdom and soundness of Executive action" (Laird v.
Tatum, 408 U.S. 1, 15 (1972)).  And, as the Court recently emphasized
in another context, 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).
/16/
   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 the plaintiffs 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).  /17/ 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 or collection actions in the district
courts or the Claims Court (I.R.C. Sections 6532, 7422;  28 U.S.C.
1346, 1491), and, in specific and 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. (Supp. III) 2201).  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 indicated that
invocation of judicial examination of the validity of a particular
organizations' tax exemption is the prerogative only of the government
and the organization in question, not of third parties.
   The specifics of this case graphically illustrate the mischief that
would flow from conferring standing on persons such as the plaintiffs
to challenge the tax exemption of a third party.  At the behest of a
litigant who is not directly affected, the district court is poised to
conduct a nationwide review of the IRS's administration and
enforcement of Section 501(c)(3), an inquiry that will intrude into
the sensitive internal workings of both the government and the Roman
Catholic Church.  The Church includes many thousands of organizations
across the country -- parishes, dioceses, schools, hospitals, and
others -- that, for administrative purposes, fall under the "umbrella"
exemption given to the petitioners.  The plaintiffs would have the
district court substitute its judgment for the enforcement judgment of
the IRS by reviewing the internal affairs of a multitude of those
entities to determine whether they engage in more political activity
than their status under Section 501(c)(3) permits.  Moreover, as
developments in this case have already shown, this judicial inquiry
would likely touch upon confidential tax return information collected
by the IRS and result in constitutional controversy over efforts to
obtain Church documents and to take testimony from Church officials.
/18/ 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.
   The district court's response to these separation of powers
concerns is entirely wide of the mark.  The court acknowledged that
there are limitations on access to the courts "to resolve abstract
policy questions of broad public importance" (Pet. App. 79a).  But the
court stated that "(n)ot all issues of broad public importance * * *
are necessarily, or even better, left to the execustive and the
legislature" (ibid.).  It found that the limitations on judicial
action are not implicated here because the plaintiffs do not "call for
judicial selection of an appropriate policy";  the correct policy
already has been chosen by Congress and set forth in Section 501(c)(3)
(Pet. App. 79a).
   The district court thus fails to recognize that courts can
impermissibly intrude into matters reserved to the Executive even if
they do not resolve "abstract policy questions." In this case, as in
Allen, the plaintiffs do not challenge "a fundamental IRS policy
decision" (468 U.S. at 765).  On the contrary, the parties agree that
organizations exempt from tax under Section 501(c)(3) are restricted
from engaging in political activity;  the Treasury regulations are
quite explicit on this point (see, e.g., Treas. Regs. Sections
1.501(c)(3)-1(b)(3), 1.501(c)(3)-1(c)(3)).  What the plaintiffs
challenge -- and seek to have the court control -- are the details of
the execution of that policy, which is but one of the numerous facets
of the Internal Revenue Code that it is the duty of the Secretary of
the Treasury to administer.  The plaintiffs "seek to have the Judicial
Branch compel the Executive Branch to act in conformity" with the law
(Schlesinger v. Reservists Committee to Stop the War, 418 U.S. at
217), according to enforcement procedures and criteria that the
plaintiffs and the court devise.  In short, the plaintiffs invoke the
courts here not to obtain a binding resolution of a specific legal
question in which they have a cognizable interest, but rather to
exercise control over the Executive Branch's administration of its law
enforcement responsibilities.  This Court has made clear that
litigants may not resort to the federal courts for that purpose.
   Finally, in addition to the constitutional infirmities in the
plaintiffs' standing claim, all three of the factors that the Court
has identified as forming the prudential limitations on standing (see
Allen v. Wright, 468 U.S. at 751) militate against entertainment of
this lawsuit.  The plaintiffs are seeking to vindicate not their own
legal rights, but rather the government's right to collect taxes from
an organization (and from its contributors) that allegedly is not
eligible for a tax exemption.  The plaintiffs' concern about tax law
enforcement is "more appropriately addressed in the representative
branches" (ibid.), i.e., through the congressional oversight
procedures established by statute.  And the plaintiffs' complaint does
not "fall within the zone of interests protected" by Section
501(c)(3), which simply defines those organizations that Congress has
determined should be granted a tax exemption because of their
"charitable" or "religious" purposes (see 468 U.S. at 751).
   In sum, it is manifest that the plaintiffs lack standing to
maintain this lawsuit.  As 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)).  /19/
                              CONCLUSION
   The judgment of the court of appeals should be reversed.
   Respectfully submitted.
   CHARLES FRIED
      Solicitor General
   WILLIAM S. ROSE, JR.
      Assistant Attorney General
   LAWRENCE G. WALLACE
      Deputy Solicitor General
   ALAN I. HOROWITZ
      Assistant to the Solicitor General
   ROBERT S. POMERANCE
   TERESA E. MCLAUGHLIN
      Attorneys
   JANUARY 1988
   /1/ The suit also named as defendants the petitioners, the United
States Catholic Conference (USCC) and the National Conference of
Catholic Bishops (NCCB), which are the two principal national
organizations of the Roman Catholic Church in the United States.
Petitioners hold an "umbrella" exemption under Section 501(c)(3) of
the Internal Revenue Code, covering tens of thousands of individual
entities (including dioceses, parishes, schools, and hospitals), which
are part of, or affiliated with, the Roman Catholic Church in the
United States (Pet. App. 58a-59a).  The district court ruled, however,
that the complaint failed to state a claim against petitioners because
they were entitled to rely upon tax exemptions granted by the
government.  Accordingly, petitioners were dismissed as defendants
(Pet. App. 84a, 91a).
   /2/ Unless otherwise noted, all statutory references are to the
Internal Revenue Code, as amended (the Code or I.R.C.).
   /3/ 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 any
candidate for public office." Section 501(c)(3) organizations are
exempted from income tax, and contributions made to them are generally
deductible for federal income tax purposes under Section 170 of the
Code, and are also deductible for federal estate and gift tax purposes
under Sections 2055 and 2522 of the Code, respectively.
   /4/ The federal respondents have maintained that disclosure of much
of the information requested from the government is precluded by
Section 6103 of the Code, which prohibits government disclosure of tax
returns and confidential return information, except as specifically
provided by statute.  See C.A. App. 182-195.
   /5/ This principle is well established, and we do not dispute that
a court may issue and enforce orders aimed at determining whether the
court has subject matter jurisdiction.  See also United States v.
Shipp, 203 U.S. 563, 573 (1906)).  Thus, we do not take issue with
Judge Kearse's observation in her concurring opinion (Pet. App.
42a-43a) that a trial court may have the power to permit some
discovery in order to allow the court to determine whether standing
exists.  But Judge Kearse's observation has no relevance to the
instant case.  The discovery order that forms the predicate for the
contempt judgment was indisputably directed at the merits of the
litigation.  For purposes of the standing inquiry, the district court
correctly accepted the allegations in the plaintiffs' complaint as
true, and no one suggested that discovery was needed to illuminate the
standing inquiry.  Indeed, the district court had already
unequivocally held, on two separate occasions, that the plaintiffs
have standing to bring the underlying lawsuit.  Thus, the order
underlying the contempt judgment plainly cannot be justified as
"discovery relating to standing" (id. at 43a).
   /6/ This crucial distinction is reflected in this case where the
objective of the civil contempt judgment against petitioners, which
imposed sanctions only until they complied with the discovery order
(see Pet. App. 50a-51a), clearly was to coerce compliance with that
order for the benefit of the plaintiffs, not to vindicate the
authority of the court.  Thus, this case does not present issues
comparable to those currently pending before the Court in United
States v. Providence Journal Co., No. 87-65 (argued Jan. 20, 1988),
where the respondent was held in criminal contempt for publishing a
newspaper article in defiance of a temporary restraining order that
respondent had not endeavored to challenge through the judicial
process.
   /7/ If the court of appeals' analysis of the scope of review of
civil contempt judgments on appeal were correct, this Court in United
Mine Workers, in order to sustain even the civil contempt judgment in
that case, would have needed to decide no more than that the district
court had a "colorable basis" for issuing the restraining order.  The
extensive consideration that the Court gave to the question whether
the district court actually had jurisdiction (see 330 U.S. at 269-289;
 id. at 312-328 (Frankfurter, J., concurring);  id. at 343-351
(Rutledge, J., dissenting)) graphically demonstrates that the decision
below cnanot be squared with United Mine Workers.
   /8/ Indeed, the fact that the petitioners claim that the district
court's exercise of jurisdiction here is barred, not merely by statute
as in United Mine Workers, but by Article III, and thus exceeds the
constitutional power of the federal courts, makes the court of
appeals' failure to resolve that jurisdictional question even more
inappropriate.
   /9/ This injury is not actually alleged in the complaint, but was
derived by the district court from affidavits filed by various of the
clergy plaintiffs.  They averred that the exemption "offends,"
"demeans," and "denigrates" them and their religious values (J.A. 44,
45, 46, 52, 54), making them feel like "second class citizens" (J.A.
49) whose beliefs are less "worthy of attention" (J.A. 44) than those
of the Catholic Church.  The court also found that the Women's Center
for Reproductive Health had "Establishment Clause standing" because it
provides counseling on abortion and family planning and is affiliated
with the Presbyterian Church (Pet. App. 68a-69a;  see J.A. 53-55).
   /10/ Indeed, the result here follows a fortiori from that case.  At
least the private schools in Allen (although not the defendant federal
officials) allegedly discriminated against black children.  By
contrast, petitioners -- the third parties here -- are not alleged to
have performed acts directed against the plaintiffs, but at most to
have expressed personal views and engaged in political advocacy on
subjects also of interest to the plaintiffs.
   /11/ The plaintiffs do not assert that they or their organizations
have been denied a tax exemption.  Moreover, their affidavits indicate
their belief that their religious institutions would not be entitled
to a tax exemption if they were to engage in the type of political
activity that the complaint attributes to the Catholic Church.  See,
e.g., J.A. 43, 45, 52, 54.
   /12/ There is no warrant for departing from these basic standing
principles simply because the alleged injury is a "spiritual" one
based on a claim of an Establishment Clause violation.  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
involved here can be challenged only by persons having standing to
complain" (id. at 224 n.9).  The Court concluded that there was
standing because the plaintiffs -- students in the schools -- were
"directly affected by the laws and practices against which their
complaints (were) directed" (ibid.).  The Court specifically
contrasted the standing of the plaintiffs there with Doremus v. Board
of Education, 342 U.S. 429 (1952), where the Court had concluded that
the plaintiffs lacked standing to raise the same substantive issue.
As this court recently observed, "(t)he plaintiffs in Schempp had
standing, not because their complaint rested on the Establishment
Clause -- for as Doremus demonstrated, that is insufficient -- 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 clery plaintiffs here
are hardly in a position to allege a comparable element of personal
injury.
   /13/ The plaintiffs have no adequate respone to this difficulty.
They state that "the injury * * * is not the Catholic Church's
political activities per se, but the government's subsidy of those
activities" (Br. in Opp. 56);  the district court states that
"(r)edress will come directly from the government's consistent
enforcement of the tax laws, not from any change in the political
activities of the Church" (Pet. App. 97a).  But these statements mark
a return to the contention, akin to the plaintiffs' "denigration"
claim, that the mere fact that the Church allegedly receives favorable
treatment is enough to support standing.  That simply cannot be
correct;  if the mere fact of favored treatment of one party is enough
to constitute a concrete injury to another, then any interested party
can challenge a perceived violation of the law by the government.  But
"(t)he federal courts were simply not constituted as ombudsmen of the
general welfare" (Valley Forge, 454 U.S. at 487), and therefore the
plaintiffs may not bring suit merely to ensure "consistent enforcement
of the tax laws" (Pet. App. 97a).  Rather, the plaintiffs here can
demonstrate standing only if the alleged failure in government
enforcement causes a concrete injury to them.  They essentially
acknowledge, however, that they cannot allege such a concrete injury.
   /14/ In reaching a contrary conclusion here, the district court
relied heavily (see Pet. App. 71a-73a) on Shakman v. Democratic
Organization, 435 F.2d 267 (7th Cir. 1970), cert. denied, 402 U.S. 909
(1971) (Shakman I), where a group of voters was held to have standing
to sue the county challenging alleged abuses of the patronage system.
That case, however, is of little precedential value.  The correctness
of Shakman in light of the intervening standing decisions of this
Court has been questioned by other courts.  See, e.g., Winpisinger v.
Watson, 628 F.2d at 141 & n.32.  Indeed, the Seventh Circuit itself
recently revisited Shakman in a subsequent appeal in the same case,
and it concluded that, because of the major changes in the "legal
landscape" since its earlier decision, its prior finding of standing
could not be regarded as binding law of the case and would have to be
reconsidered (Shakman v. Dunne, 829 F.2d 1387, 1393 (1987)).  Upon
reexamination, the court concluded that the plaintiffs lacked standing
to challenge the hiring practices of the incumbent county
administration, and hence that the complaint had to be dismissed to
that extent (the original complaint had challenged a broader spectrum
of patronage practices).  Significantly, the Seventh Circuit relied
heavily on Winspisinger in concluding that the alleged connection
between the challenged patronage hiring practices and the injury -- a
disadvantage to electoral opponents of the incumbent because persons
would be induced to work for the incumbent in expectation of receiving
a patronage job -- was too speculative to support standing (see 829
F.2d at 1397-1398).  In any event, even if Shakman I were regarded as
still authoritative, it involved a challenge to patronage practices in
"a single County, not a coordinate branch of the federal government"
(Winpisinger v. Watson, 628 F.2d at 141 n.32), and its holding
therefore has little bearing in the present context of a nationwide
suit against an arm of the federal government.
   /15/ Indeed, the causal link in the instant case is considerably
more tenuous than it was in Winpisinger because an additional set of
conjectures concerning the possibility of changes in the Church's
activities must be accepted before the uncertainties of the electoral
process even come into play.
   /16/ The Court in Chaney identified some of those factors as
follows (470 U.S. at 831-832):
         (T)he agency must not only assess whether a violation has
      occurred, but whether agency resources are best spent on this
      violation or another, whether the agency is likely to succeed if
      it acts, whether the particular enforcement action requested
      best fits the agency's overall policies, and indeed, whether the
      agency has enough resources to undertake the action at all.  An
      agency generally cannot act against each technical violation of
      the statute it is charged with enforcing.  The agency is far
      better equipped than the courts to deal with the many variables
      involved in the proper ordering of its priorities.
   /17/ Congress's oversight responsibility is not taken lightly.
Indeed, last summer a congressional committee, after careful study,
issued a report and recommendations on the very subject that underlies
this lawsuit -- namely, political activities of tax-exempt
organizations.  See Staff of the House Subcomm. on Oversight of the
Comm. on Ways and Means, 100th Cong., 1st Sess., WMCP:  100-12, Report
and Recommendations on Lobbying and Political Activities by Tax-Exempt
Organizations (Comm. Print 1987).  And last month Congress enacted
legislation addressing the question of political and lobbying
activities of tax-exempt organizations.  See Sections 10711-10714 of
the Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-203
(Dec. 22, 1987).
   /18/ It is highly pertinent that the executive function that the
plaintiffs ask the district court to assume here involves the
sensitive task of separating church activities relating to the
exercise of religious beliefs -- such as the announcement of positions
taken on theological grounds -- from impermissible lobbying and
intervention in political campaigns (cf. Surinach v. Pesquera de
Busquets, 604 F.2d 73, 78 (1st Cir. 1979)).  As this Court observed in
Lemon v. Kurtzman, 403 U.S. 602, 620 (1971), "state inspection and
evaluation of the religious content of a religious organization is
fraught with the sort of entanglement that the Constitution forbids."
The possibilities for excessive government entanglement with religion
that are inherent in the inquiry that the plaintiffs seek to compel
here further counsel against interjection of the courts into the
exercise of this executive function.  Indeed, the difficulties
attending church audits recently prompted Congress to enact detailed
remedial legislation (see Deficit Reduction Act of 1984, Pub. L. No.
98-369, Section 1033(a), 98 Stat. 1034;  H.R. Conf. Rep. 98-861, 98th
Cong., 2d Sess. 1101-1114 (1984)), which establishes stringent
procedural safeguards in the conduct of examinations of churches.
These restrictions, however, are directed to government investigation
of religious activity, rather than to investigations conducted by
private parties, and by their terms would not appear to apply to a
lawsuit like this one.  Thus, entertainment of such a suit by the
federal courts might well have the anomalous effect of granting the
plaintiffs greater license to investigate the Church's continuing
qualification for tax exemption than Congress allows to the agency
that it has charged with the enforcement of the tax laws.
   /19/ Moreover, permitting the present case to proceed to trial
would encourage similar suits by third parties dissatisfied with the
tax treatment of other groups with whose views they disagree.  Even if
such suits would ultimately fail on the merits, they could be used for
purposes of securing information through discovery for utilization in
public debate, as well as a means of turning the courts themselves
into fora for policy debate rather than adjudicative tribunals.