FFRF v. Gonzales

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

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FREEDOM FROM RELIGION FOUNDATION, INC.; ANNE NICOL GAYLOR; ANNIE LAURIE GAYLOR; and DAN BARKER,

Plaintiffs,

v. (Case No. 06 C 0244 S)

UNITED STATES ATTORNEY GENERAL ALBERTO R. GONZALES HARLEY G. LAPPIN, DIRECTOR OF FEDERAL BUREAU OF PRISONS and CLAY JOHNSON III, DIRECTOR OF OFFICE OF MANAGEMENT AND BUDGET,

Defendants.

COMPLAINT

The plaintiffs for their complaint allege as follows:

1. This is an action by the plaintiffs brought against the defendants alleging violations of the Establishment Clause of the First Amendment to the United States Constitution.

2. This court has federal question jurisdiction pursuant to 28 U.S.C. ¤ 1331.

3. Venue is appropriate in the District Court for the Western District of Wisconsin pursuant to 28 U.S.C. ¤ 1391(e).

4. The plaintiff, Freedom From Religion Foundation, Inc. ("FFRF"), is a Wisconsin non-stock corporation whose principal office is in Madison, Wisconsin.

5. FFRF has more than 6,600 members, including federal taxpayers, who are opposed to government endorsement of religion in violation of the Establishment Clause of the First Amendment to the United States Constitution.

6. FFRF's purpose is to protect the fundamental constitutional principle of separation of church and state by representing and advocating on behalf of its members.

7. The plaintiff, Anne Nicol Gaylor, is a federal taxpayer residing in Madison, Wisconsin, and she is a member of and former president of FFRF, and she is a non-believer who is opposed to governmental endorsement of religion.

8. The plaintiff, Annie Laurie Gaylor, is a federal taxpayer residing in Madison, Wisconsin, and she is a member of and co-president of FFRF, and she is the Editor of FFRF's periodical "Freethought Today," and she is also a non-believer who is opposed to governmental endorsement of religion.

9. The plaintiff, Dan Barker, is a federal taxpayer residing in Madison, Wisconsin, and he is a member of and copresident of FFRF, and he is Public Relations Director of FFRF, and he is also a non-believer who is opposed to governmental endorsement of religion.

10. The plaintiffs are opposed to the use of congressional taxpayer appropriations to advance and promote religion.

11. The defendant, Alberto R. Gonzales, is the Attorney General of the United States of America and he is the head of the United States Department of Justice, of which the Bureau of Prisons is a part.

12. Attorney General Gonzales is sued in his official capacity as the head of the United States Department of Justice.

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13. The defendant, Harley G. Lappin, is the Director of the Federal Bureau of Prisons, a part of the United States Department of Justice.

14. Mr. Lappin is sued in his official capacity as the Director of the Federal Bureau of Prisons.

15. The defendant, Clay Johnson III, is the Director of the Office of Management and Budget.

16. Mr. Johnson III is sued in his official capacity as the Director of the Office of Management and Budget.

17. The Federal Bureau of Prisons is funded by taxpayer appropriations from the United States Congress.

18. The defendants, Attorney General Gonzales and Mr. Lappin, who are sued in their official capacities, are responsible for utilizing Congressional taxpayer appropriations as alleged herein.

19. The Federal Bureau of Prisons has solicited proposals for the provision of a single-faith, residential re-entry program at one or more pilot site institutions.

20. The purpose of the residential re-entry program is to facilitate "personal transformation" of participating inmates.

21. The residential re-entry program of the Bureau of Prisons is intended to effect the spiritual development of participating inmates.

22. The Bureau of Prisons intends to make awards to one or more contractors, who must develop a curriculum that demonstrates consistency with program goals and outlines how the contractor plans to incorporate program components, including spiritual development; spiritual development is a required program component.

23. The Bureau of Prisons intends to make awards to one or more contractors, which contractor(s) must make available a single-faith, residential re-entry program, consistent with the requirements of the Bureau's solicitation, including the program component for spiritual development.

24. The Federal Bureau of Prisons has already issued a formal solicitation seeking proposals for the new pilot program, wherein the contractor(s) are required to design and implement faith-based programming for a single-faith, residential re-entry cell block at one or more pilot site prisons.

25. The program for which the Bureau of Prisons is soliciting proposals is known as the Life Connections Program.

26. The purpose of the Life Connections residential re-entry program is to facilitate "personal transformation" of the participating inmates through the development of the inmates' spirituality or faith.

27. The Life Connections Program is a collaboration between the Department of Justice Task Force for Faith-Based and Community Initiatives, which Task Force encourages/promotes the utilization of Congressional appropriations for faith-based initiatives.

28. The Bureau of Prisons has designated six of its institutions as sites where the Life Connections residential re-entry program services will be newly established, including the Seagoville Federal Correctional Institution, the Beaumont Federal Correctional Complex, the Hazelton United States Penitentiary, the Fort Dix Federal Correctional Institution, the Edgefield Federal Correctional Institution, and the Tucson Federal Correctional Institution.

29. The mission of the Life Connections Program is to facilitate personal transformation by providing inmates with an intensive opportunity for alleged personal growth through the sharing of common living space and program components, including faith-based components.

30. Proposals for the Life Connections Program, at a minimum, must outline how the contractor(s) plans to incorporate program components which foster growth in program goal areas, including spiritual development.

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31. Participants in the Life Connections Program will live together in a single-faith housing unit designated by the Bureau of Prisons.

32. Participants in the Life Connections Program will engage in program components designed to foster personal growth in the program goal areas, including spiritual development.

33. The Bureau of Prisons' solicitation for a single-faith, residential re-entry program at six pilot site institutions represents an expansion of the Life Connections Program that the Bureau of Prisons has been operating since at least 2003.

34. The Bureau of Prisons Life Connections Program is a single-faith residential, faith-based restorative justice program based upon the premise that inmates should develop their faith and spirituality.

35. The Life Connections Program, as it has been operated, is an eighteen-month program designed to effect personal transformation using the participant's faith commitment.

36. Inmates participate in religion-specific and interfaith program components designed to cause inmates to explore faith as a way to restoration with one's god, family, community, and self.

37. The Life Connections Program, as it has been operated by the Bureau of Prisons, brings spiritual guides into the prison facilities under contract with the Bureau of Prisons; the spiritual guides lead small group studies of sacred religious texts.

38. Participants in the Life Connections Program are matched with faith mentors who visit weekly, and participants also are linked with a faith-based community at their release destination.

39. The Bureau of Prisons has been operating the Life Connections Program in at least five program sites since 2003, including the Federal Correctional Institution at Milan, Michigan, the U.S. Penitentiary at Leavenworth, Kansas, the Federal Medical Center at Carswell, Texas, the Federal Correctional Institution at Petersburg, Virginia, and the Federal Correctional Institution at Victorville, California.

40. The Life Connections Program is implemented by the Religious Services Branch of the Bureau of Prisons.

41. The Life Connections Program that is being implemented by the Bureau of Prisons was designed by Chaplain Kendall Hughes, a Chaplain employed by the Federal Bureau of Prisons.

42. Chaplain Hughes designed a faith-based model for reforming inmates based on the premise that inmates should pursue, nurture and commit themselves to religious faith.

43. All inmates in the Life Connections Program are housed together so that they are not subjected to the harassment and temptations of normal prison life.

44. The Life Connections Program has been endorsed by the Federal Bureau of Prisons, and the Program has already been implemented in five facilities.

45. The Life Connections Program implements, in part, President Bush's faith-based initiative.

46. According to the head of the White House Office of Faith Based Initiatives, Jim Towey, faith based initiatives are intended to transform lives.

47. The Bureau of Prisons has developed and implemented the Life Connections Program with the aim to provide participants with alleged moral and spiritual principles.

48. The Bureau of Prisons has developed the Life Connections Program because of a belief in the alleged potency of faith to change behavior.

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49. The Bureau of Prisons has already previously hired individuals as Life Connections Program Facilitators and Life Connections Program Community Liaisons at the institutions where the program has been implemented.

50. The Life Connections Facilitator, under contract with the Bureau of Prisons, is responsible for coordinating all program components, facilitating workshops, seminars and other programming needs, and using the Life Connections Program "curriculum."

51. The Life Connections Facilitators hired by the Bureau of Prisons are required to possess a degree from an accredited college or university, with a major in religious studies, religious education, or related curriculum.

52. The defendant, Attorney General Gonzales, has admitted that the Department of Justice is expanding the Bureau of Prisons' Life Connections Program, which he describes as providing life-skills education in concert with each prisoner's spirituality or faith.

53. The defendants, Gonzales and Lappin, for their parts and in their individual capacities, oversee and are responsible for the disbursement of Congressional tax appropriations made to the Department of Justice and the Bureau of Prisons, including funds appropriated for the substantive integration of religion into prison programming.

54. The direct funding of religious programming by the defendants Gonzales and Lappin, in their official capacities, is not intended merely to accommodate the religious free exercise rights of inmates, but rather the Bureau of Prisons' religious programming is based upon the intent to encourage and promote the development of faith among inmates.

55. The defendants Gonzales and Lappin, in their official capacities, have engaged in activities that violate the Establishment Clause of the First Amendment to the United States Constitution, including by funding, with Congressional tax appropriations made pursuant to Article I, ¤ 8, of the Constitution, programs that integrate religion as a substantive and integral component.

56. The defendants Gonzales and Lappin have been and are responsible for the use of federal taxpayer appropriations to integrate religion as a substantive and integral component of programs delivered by the Bureau of Prisons.

57. The integration of religion and spirituality into the Life Connections Program is intended to promote religion and belief.

58. The actions of the defendants Gonzales and Lappin, in using taxpayer money to integrate religion as part of the programming of the Bureau of Prisons, including the Life Connections Program, violate the fundamental principle of the separation of Church and State by using Congressional taxpayer appropriations to intentionally support activities that endorse religion.

59. The actions of the defendants Gonzales and Lappin in disbursing and utilizing taxpayer money to support the integration of religion into the Bureau of Prisons' programs, including the Life Connections Program, give the appearance of the government's official support for and advocacy of religion, including the current solicitation for proposals to provide single-faith programming.

60. The actions of the defendants Gonzales and Lappin in utilizing taxpayer money to support the integration of religion into prison programs give support to and the appearance of the endorsement of religion, including the endorsement of the single-faith selected for each new program site.

61. The disbursement of Congressional appropriations, made pursuant to Article I, ¤ 8 of the United States Constitution, for the purpose of supporting the integration of religion into prison programming, gives actual and apparent government endorsement and advancement of religion.

62. The actions of the defendants Gonzales and Lappin in utilizing Congressional taxpayer appropriations to endorse and advance religion violate the Establishment Clause of the First Amendment to the United States Constitution.

63. The actions of the defendants Gonzales and Lappin in violating the Establishment Clause of the First Amendment

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to the United States Constitution are injurious to the interests of the plaintiffs individually, and to FFRF in its representative capacity, because the defendants' actions compel the plaintiffs to support the establishment, endorsement and advancement of religion to which the plaintiffs object.

64. The Office of Management and Budget, under the direction of the defendant Clay Johnson III, for its part, also engages in prohibited actions which give the appearance that federal agencies, like the Bureau of Prisons, should make more appropriations to faith-based organizations in federal program contracting merely based on the status of being a faith-based organization.

65. The Office of Management and Budget too is funded by taxpayer appropriations from the United States Congress, pursuant to Article I, ¤8, of the United States Constitution.

66. The Office of Management and Budget utilizes Congressional taxpayer appropriations in activities intended to cause federal agencies to disburse, in turn, more government contracts to faith-based organizations.

67. The Office of Management and Budget utilizes Congressional taxpayer appropriations in its own activities, which in turn give the appearance of promoting the disbursement of more federal contracts to faith-based organizations by federal agencies, which is the intent of the Office of Management and Budget's actions.

68. The Office of Management and Budget engages in activities that create an atmosphere intended to cause federal agencies to increase their contracting with faith-based organizations merely because the organizations are faith based.

69. The actions of the Office of Management and Budget are intended to promote and cause the disbursement of more Congressional appropriations to faith-based organizations.

70. The Office of Management and Budget, in particular, evaluates, reviews and gives a "report card" to each major federal agency, which report cards, on information and belief, grade the agencies on the extent to which they have disbursed and/or increased their appropriations to faith-based organizations.

71. The Office of Management and Budget "grades" each federal agency, such as the Department of Education, the Department of Justice, the Department of Labor, the Department of Health and Social Services, the Department of Agriculture, the Department of Housing and Urban Development, etc., on the extent to which each agency disburses/increases appropriations made to faith-based organizations.

72. The actions of the Office of Management and Budget in grading federal agencies on their disbursement of Congressional appropriations to faith-based organizations are intended to cause increased disbursements to faith-based organizations merely because such organizations are faith-based; report cards, by definition, measure success against a standard that agencies are expected to achieve.

73. The defendant, Johnson III, for his part and in his individual capacity, oversees and is responsible for the use of Congressional tax appropriations made to the Office of Management and Budget, including funds appropriated for activities intended to cause federal agencies to increase disbursements of Congressional appropriations to faith based organizations.

74. The actions of the Office of Management and Budget are based upon the premise that funding should normatively be increased to faith-based organizations -- merely because such organizations are faith-based.

75. The defendant, Johnson III, in his official capacity, therefore has engaged in activities that violate the Establishment Clause of the First Amendment to the United States Constitution because the actions of the Office of Management and Budget are intended to selectively cause increased funding by federal agencies for faith-based organizations as such.

76. The actions of the defendant, Johnson III, in using taxpayer money to cause pressure for increased funding for faithbased organizations, violate the fundamental principle of separation of church and state, including because such actions have a reasonable likelihood of causing federal agencies to increase funding for faith-based organizations merely because of their faith-based status.

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77. The actions of the defendant, Johnson III, give the appearance of the government's official support for and advocacy of religion.

78. The actions of the defendant, Johnson III, give support to and the appearance of the endorsement of increased funding for faith-based organizations merely because such organizations are faith-based.

79. The actions of the defendant, Johnson III, in utilizing Congressional taxpayer appropriations to endorse and advance religion violate the Establishment Clause of the First Amendment to the United States Constitution.

80. The actions of the defendant, Johnson III, in violating the Establishment Clause of the First Amendment to the United States Constitution are injurious to the interests of the plaintiffs individually, and to FFRF in its representative capacity.

WHEREFORE, the plaintiffs demand judgment as follows:

a. For judgment declaring that congressional taxpayer disbursements made by the defendants have been used in violation of the Establishment Clause of the First Amendment to the United States Constitution;

b. For an order enjoining the defendants from continuing to disburse and use appropriations in violation of the Establishment Clause of the First Amendment to the United States Constitution;

c. For an order requiring the defendants to establish rules, regulations, prohibitions, standards and oversight to ensure that future disbursements are not made and/or used to fund activities that include religion as a substantive integral component, including funding for the Life Connections Program;

d. For an order requiring the defendants to establish rules, regulations, prohibitions, standards and oversights to insure that future disbursements are not made and/or used to selectively fund activities that include a single faith as an integral component;

e. For an order enjoining the defendant, Johnson III and the Office of Management and Budget, from engaging in activities that pressure, encourage and/or create an atmosphere of preference for making appropriations by federal agencies to faith-based organizations;

f. For judgment awarding such further relief as the court deems just and equitable; and

g. For judgment awarding the plaintiffs their reasonable costs, disbursements and attorneys' fees as allowed by law.

Dated this 4th day of May, 2006.

_____________________________________

Richard L. Bolton, Esq. Boardman, Suhr, Curry & Field LLP 1 South Pinckney Street, 4th Floor P. O. Box 927 Madison, WI 53701-0927 Telephone: (608) 257-9521 Facsimile: (608) 283-1709 Attorneys for Plaintiffs

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 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN ____________________________________

FREEDOM FROM RELIGION FOUNDATION, INC., ANNE NICHOL GAYLOR, ANNIE LAURIE GAYLOR and DAN BARKER,

Plaintiffs, v.

ORDER 06-C-244-S

ALBERTO R. GONZALES, HARLEY G. LAPPIN and ROB PORTMAN,

Defendants. ____________________________________

Motions by defendants to sever any claim relating to the

Office of Management and Budget from the claims relating to the

Bureau of Prisons and the Attorney General and to stay proceedings

regarding any claim relating to the Office of Management and Budget

came on to be heard by telephone in the above entitled matter on

September 13, 2006, the plaintiffs having appeared by Boardman,

Suhr, Curry & Field by Richard L. Bolton; defendants by United

States Department of Justice, Civil Division by Karen Richardson

and Adam D. Kirschner. Honorable John C. Shabaz, District Judge,

presided.

The law of the case doctrine is applicable in this case

because the United States Court of Appeals for the Seventh Circuit

expressly addressed the issue in Freedom from Religion Foundation,

Inc. v. Chao, 433 F.3d 989 (7th Cir. 2006). The Court is required

to apply the Appellate Court’s interpretation of taxpayer standing

in this action. Further, the complaint demonstrates that the

claims referred to by defendants are related and should be tried together in the interest of judicial economy.
Accordingly,
ORDER IT IS ORDERED that said motions are DENIED. Entered this 13th day of September, 2006.
BY THE COURT: S/
__________________________________ JOHN C. SHABAZ District Judge

 
 Freedom From Religion Foundation, Inc.

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Home > News Releases > 2006 > 'Single Faith' Federal Prison Programs Canceled after FFRF Files Suit
"Single Faith" Federal Prison Programs Canceled after FFRF Files Suit
A Major Victory for FFRF!
October 27, 2006
(MADISON, WIS.) In response to a legal challenge by the Freedom From Religion Foundation, the Federal Bureau of Prisons quietly canceled its plan to open at least five "single faith" programs at federal penitentiaries.
The Bureau in late May had suspended calls for solicitations to run "single-faith" programs at as many as six federal prisons. The Foundation filed suit on May 4. The Bureau posted a short announcement at its website yesterday that "it is determined to be in the best interest of the government to cancel" the plan.
"We agree that setting up single-faith prison programs is certainly not in the best interests of our secular government--or of prisoners," comments Annie Laurie Gaylor, Foundation copresident. "Secular, practical education is the answer in our prisons, not proselytizing a captive audience of prisoners, most of whom are already religious!"
"Our lawsuit has averted an egregious First Amendment violation, but the federal prisons are still engaging in unconstitutional activity," Gaylor added.
The Foundation lawsuit will proceed, since it is still challenging the constitutionality of ongoing "multifaith" programs set up by the Bureau.
The lawsuit, filed in the U.S. District Court, Western District of Wisconsin, names Attorney General Alberto R. Gonzales; Federal Bureau of Prisons director Harley G. Lappin, and Clay Johnson III, director, Office of Management and Budget. Plaintiffs include the Freedom From Religion Foundation, a national state/church watchdog group of freethinkers (atheists and agnostics), co-presidents Annie Laurie Gaylor and Dan Barker, and founder Anne Nicol Gaylor.

The Bureau of Prisons' 18-month Life Connections Program, instigated by the Department of Justice Task Force for Faith-based and Community Initiatives, has been operating since at least 2003. Created by Bureau Chaplain Kendall Hughes, it was designed as a faith-based model based "on the premise that inmates should pursue, nurture and commit themselves to religious faith."

Implemented by the Religious Services Branch of the Bureau of Prisons, Life Connections is operating in at least five federal institutions: the Federal Correctional Institution at Milan, Mich.; the U.S. Penitentiary at Leavenworth, Ks.; the Federal Medical Center at Carswell, Texas; the Federal Correctional Institution at Petersburg, Va., and the Federal Correctional Institution at Victorville, Calif.

The Life Connections Facilitators hired by the Bureau of Prisons must have a degree with a major in religious studies, religious education or related curriculum. The facilitator coordinates all components of the Life Connections Program.

The Foundation contends the program goes far beyond accommodation, and instead exists to encourage and promote faith among inmates.

Such activities "violate the fundamental principle of the separation of church and state by using Congressional taxpayer appropriations to intentionally support activities that endorse religion."

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The lawsuit further alleges that the Office of Management and Budget engages "in activities that create an atmosphere intended to cause federal agencies to increase their contracting with faith-based organizations merely because the organizations are faith-based." The complaint points out that the Office of Management and Budget gives a "report card" to each major federal agency which apparently grades the agencies on the extent to which they have disbursed or increased their appropriations to faith-based agencies.

The Foundation seeks a judgment declaring that the Congressional taxpayer disbursements for the Life Connections Program violate the Establishment Clause of the First Amendment, an order enjoining the defendants from continuing such appropriations, and an order requiring the defendants to establish regulations and oversight to ensure future funded activities do not include religion as a substantive integral component.

Freedom From Religion Foundation v. Gonzales, Case No. 06-C-0244-S, has been assigned to Judge John Shabaz, U.S. District Court, Western District of Wisconsin.

Read the Complaint.
The Freedom From Religion Foundation, based in Madison, Wis., is a national association of freethinkers (atheists, agnostics) that has been working since 1978 to keep church and state separate.

Freedom From Religion Foundation • PO Box 750 • Madison, WI 53701 • (608) 256-8900 • contact us © Freedom From Religion Foundation.

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 February 19, 2007 12:51:42

Web PACER (v1.2)

U.S. District CourtWestern District of Wisconsin (Madison) CIVIL DOCKET FOR CASE #: 06-C-0244-S Case Number: 06-C-0244-S
Case Title: FREEDOM FROM RELIGION FOUNDATION, INC. v. GONZALES, ALBERTO R.
Filed On: 05/04/2006 Nature of Suit: 440
Jurisdiction: U.S. Government Defendant Jury Demand: No
Closed On: 11/09/2006 Origin: Original Proceeding
Rule 23: No Monetary Demand: $ 0,000 Assigned To: Judge John C. Shabaz Cause: CIVIL RIGHTS; Other Civil Rights Magistrate Judge: Crocker Last Updated On: 11/09/2006

Plaintiffs
FREEDOM FROM RELIGION FOUNDATION, INC. GAYLOR, ANNE NICOL GAYLOR, ANNIE LAURIE BARKER, DAN
Attorney(s) for Plaintiffs
RICHARD L. BOLTON BOARDMAN, SUHR, CURRY & FIELD P.O. BOX 927 MADISON, WI 53701-0927 (608) 257-9521 For: BARKER, DAN FREEDOM FROM RELIGION FOUNDATION, INC. GAYLOR, ANNE NICOL GAYLOR, ANNIE LAURIE

Defendants GONZALES, ALBERTO R. LAPPIN, HARLEY G. PORTMAN, ROB
Attorney(s) for Defendants LESLIE K. HERJE ASSISTANT U.S. ATTORNEY 660 W. WASHINGTON AVE, SUITE 200 MADISON, WI 53701-1585 (608) 264-5158 For: GONZALES, ALBERTO R. LAPPIN, HARLEY G. PORTMAN, ROB ADAM D. KIRSCHNER U.S. DEPT. OF JUSTICE,CIVIL DIVISION FEDERAL PROGRAMS BRANCH P.O. BOX 883

WASHINGTON, DC 20044 (202) 353-9265 For: GONZALES, ALBERTO R. LAPPIN, HARLEY G. PORTMAN, ROB

DOCKET FOR CASE # 06-C-0244-S

# Date

Docket Entry

05/04/2006 NORTC - FEE PAID.

001 05/04/2006 JS-44

002 05/04/2006 COMPLAINT - SUMMONS ISSUED.

003 06/19/2006 PPTC REPORT BY PLTFS.

004 06/19/2006 NOTICE OF APPEARANCE BY ATTY. ADAM KIRSCHNER FOR DEFTS.

005 06/19/2006 PPTC REPORT BY DEFTS.

006 06/22/2006 PTC ORDER

06-C-244-S-06-22-06.PDF

007 07/07/2006 MOTION (UNOPPOSED) BY DEFTS. FOR EXTENSION OF TIME TO FILE ANSWER.

008 07/12/2006 ORDER GRANTING DEFTS. MOTION FOR EXTENSION OF TIME TO FILE ANSWER UNTIL 7/21/06.

009 07/21/2006 ANSWER

010 08/30/2006 MOTION BY DEFTS. TO STAY REGARDING ANY CLAIM RELATING TO THE OFFICE OF MANAGEMENT AND BUDGET.

011 08/30/2006 MOTION BY DEFTS. TO SEVER ANY CLAIM RELATING TO OFFICE OF MANAGEMENT AND BUDGET FROM THE CLAIMS RELATING TO BOP AND AG.

012 08/30/2006 BRIEF IN SUPPORT OF DEFT. MOTION TO STAY AND SEVER.

013 08/31/2006 DEFT. NOTICE OF APPEARANCE BY ATTY. KAREN RICHARDSON.

014 09/13/2006 ORDER DENYING DEFTS. MOTIONS TO SEVER AND STAY CLAIMS RELATING TO THE OFFICE OF MANAGEMENT AND BUDGET.

06-C-244-S-09-13-06.PDF

11/07/2006 RECD. PARTIES STIPULATION OF DISMISSAL; FORWARDED TO CHAMBERS.
015 11/09/2006 STIPULATION AND ORDER DISMISSING CASE W/O PREJUDICE; PARTIES TO BEAR THEIR OWN ATTY. FEES AND COSTS. CC MLD
BRIEFING SCHEDULES FOR CASE # 06-C-0244-S Be advised that this briefing schedule information is for internal use of the court only and
is not to be relied upon by counsel/parties as actual due dates. Actual due dates for dispositive motions are to be computed as set forth in the judge's standard orders and/or
orders on pretrial conferences.
No BRIEFING SCHEDULES Entries
APPEALS FOR CASE # 06-C-0244-S

No APPEALS Entries

CALENDAR FOR CASE # 06-C-0244-S

Date Time

Calendar Entry

09/13/2006 8:30 a.m.

Telephone Motion Hearing

06/22/2006 8:15 a.m.

Telephone Status Conference

Room Judge 560 Shabaz
560 Shabaz

[END OF DOCKET 06-C-0244-S]

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 433 F.3d 989 (2006)
FREEDOM FROM RELIGION FOUNDATION, INC., et al., Plaintiffs-Appellants, v.
Elaine L. CHAO, Secretary of Department of Labor, et al., Defendants-Appellees.
No. 05-1130.
United States Court of Appeals, Seventh Circuit.
Argued September 13, 2005. Decided January 13, 2006.
Richard L. Bolton (argued), Boardman, Suhr, Curry & Field, Madison, WI, for Plaintiffs-Appellants.
Lowell Sturgill (argued), Department of Justice Civil Rights Division, Appellate Section, Washington, DC, for for Defendants-Appellees.
990 *990 Before POSNER, RIPPLE, and WOOD, Circuit Judges.
POSNER, Circuit Judge.
The question presented by this appeal is whether a taxpayer can ever have standing under Article III of the Constitution to litigate an alleged violation of the First Amendment's establishment clause unless Congress has earmarked money for the program or activity that is challenged. The district judge thought not, and would have been correct in his thinking under an earlier view of Article III's limitation of the federal judicial power to deciding "Cases" and "Controversies." It was once thought that these terms (which "are, for all intents and purposes, synonymous," Jones v. Griffith, 870 F.2d 1363, 1366 (7th Cir.1989)) limited federal jurisdiction to cases in which the plaintiff alleged the kind of injury that would have supported a lawsuit in the eighteenth century. In the words of Justice Frankfurter, "Both by what they said and by what they implied, the framers of the Judiciary Article gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union. Judicial power could come into play only in matters that were the traditional concern of the courts at Westminster and only if they arose in ways that to the expert feel of lawyers constituted `Cases' or `Controversies.' . . . Even as to the kinds of questions which were the staple of judicial business, it was not for courts to pass upon them as abstract, intellectual problems but only if a concrete, living contest between adversaries called for the arbitrament of law." Coleman v. Miller, 307 U.S. 433, 460, 59 S.Ct. 972, 83 L.Ed. 1385 (1939) (concurring opinion).
In line with Justice Frankfurter's thinking, Doremus v. Board of Education, 342 U.S. 429, 433-34, 72 S.Ct. 394, 96 L.Ed. 475 (1952), rejected taxpayer standing as inconsistent with Article III, cf. Frothingham v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), though a taxpayer could sue in state court to enforce his federal right if the state didn't impose as rigorous a standing requirement as Article III does. See, e.g., Appleton v. Menasha, 142 Wis.2d 870, 419 N.W.2d 249, 252-53 (1988). The tangible harm to the taxpayer complaining of the expenditure was too attenuated to satisfy eighteenth-century notions of standing embodied in Article III. Indeed, the tangible harm would often be zero because if the complained-of expenditure was enjoined, the money would probably be used to defray some other public expense that would not benefit the taxpayer, rather than returned to him in the form of a lower tax rate.
Notions of standing have changed in ways to induce apoplexy in an eighteenth-century lawyer. For example, Department of Commerce v. U.S. House of Representatives, 525 U.S. 316, 331, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999), upheld standing to challenge the use of statistical sampling for the decennial census; the mere "threat of vote dilution" as a result of the methodology was deemed sufficiently concrete, actual, and imminent to confer standing. Federal Election Commission v. Akins, 524 U.S. 11, 20-25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998), upheld standing to sue for lists of donors to political action committees, on the ground "that the information would help [the committees] (and others to whom they would communicate it) to evaluate candidates for public office."

Bush v. Vera, 517 U.S. 952, 958, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (plurality opinion), upheld the standing of voters who lived in newly created majority-minority congressional districts to challenge them as racially gerrymandered on the ground that such districting denied them equal treatment. U.S. Term Limits, Inc. v. 991 Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 *991 L.Ed.2d 881 (1995), assumed (without discussion) that there was taxpayer and voter standing to challenge a state constitutional amendment that provided that no candidate could be on the ballot who had already served either three terms in the House of Representatives or two terms in the Senate.
And with specific reference to the establishment clause, consider our decision in American Civil Liberties Union v. City of St. Charles, 794 F.2d 265, 267-69 (7th Cir.1986), where we considered how much (or rather how little) injury is required to establish conventional (not even taxpayer) standing in an establishment-clause case. We thought it enough that the plaintiffs, who objected to the prominent display of a cross on public property at Christmas time, had "been led to alter their behavior to 0907 detour, at some inconvenience to themselves, around the streets they ordinarily use," in order to avoid having to see the cross. Id. at 268. "The curtailment of their use of public rights of way" was injury enough to support their suit. Id. In reaching this conclusion we relied on Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), where the Supreme Court had held that schoolchildren and their parents had standing to complain that the reading of the Bible and the recitation of the Lord's Prayer in the public school that the children attended violated the establishment clause. The specific injury to the plaintiffs could have been averted by the parents' taking their children out of the public school and putting them in a secular private school (or by moving to another public school district), but those options did not deprive the plaintiffs of standing because it was an injury to them to take their children out of the public school, just as it was an injury to the plaintiffs in the St. Charles case that they had to detour to avoid the direct effect on them of the alleged violation (in effect, to mitigate their damages). No such ground of standing is claimed here, however; it is taxpayer standing or nothing for these plaintiffs.
It was not long after Schempp that the Supreme Court decided Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), in favor of a taxpayer challenge in federal court to an alleged violation of the establishment clause. Congress had appropriated money for grants of financial assistance to private as well as public schools, and the plaintiffs complained that insofar as some of the grants had been made to parochial schools, the statute violated the establishment clause. The Court interpreted Frothingham and Doremus as having rested not on Article III0907not on the notion that the injury that a taxpayer sustains if his taxes are used for a purpose offensive to him is too slight (in the Frankfurterian originalist conception) to sustain a case or controversy in the Article III sense0907but rather on what have come to be called the "prudential" principles of standing. These are judge-made principles illustrated by Warth v. Seldin, 422 U.S. 490, 509, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), that deny standing to someone who has been injured as a result of the defendant's conduct (the core standing requirement of Article III) but who is not the "right" person to bring suit, maybe because someone has been injured more seriously and should be allowed to control the litigation.
An example of the prudential limitations on standing is the judge-made "indirect purchaser" doctrine of antitrust law that denies a right of action to a purchaser from a purchaser from a cartel. Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). If as is highly likely a purchaser from the cartel (the "direct purchaser") passes on a portion of the cartel overcharge to his customers (the "indirect purchasers" from the 992 cartel), the *992 latter are injured and an award of damages would redress their injury. So there would be Article III standing. But to allow them to sue would greatly complicate litigation, first because the court would have to determine how much of the overcharge had been passed on, a difficult question of incidence analysis, and second because there would be tiers of plaintiffs complaining about the same violation of law.
But the prudential principles of standing, like other common law principles, are protean and mutable (the term "prudential" is the very antithesis of a definite rule or standard). The Court decided in Flast that they should not stand in the way of challenges to "exercises of congressional power under the taxing and spending clauses of Art. I, § 8, of the Constitution," provided that the expenditure complained of is not just "an incidental expenditure of tax funds in the administration of an essentially regulatory statute" and that "the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8." 392 U.S. at 102-03, 88 S.Ct. 1942. The Court found that this two-part test was satisfied by a challenge to the use

of "the taxing and spending power . . . to favor one religion over another or to support religion in general." Id. at 103, 88 S.Ct. 1942.
The word "specific" in the passage we quoted from Flast turned out to be critical to the Court's later reasoning. By forbidding Congress to establish a national church, the establishment clause places a specific limitation on congressional appropriations, since the essence of an establishment of religion is government financial support. Walz v. Tax Commission of City of New York, 397 U.S. 664, 668, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) ("for the men who wrote the Religion Clauses of the First Amendment the `establishment' of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity"); see also Engel v. Vitale, 370 U.S. 421, 430-31, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). In Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), we learn that a taxpayer has standing to complain only about the violation of a limitation on Congress's power under Article I, section 8, of the Constitution to tax and (implicitly) to spend money to finance the exercise of the various powers granted to Congress by Article I. Taxpayers challenged the donation of a disused army hospital by a federal executive agency to a religious institution. The Court denied them standing because the transfer had not been made by Congress or pursuant to an exercise of Congress's taxing and spending powers; it had been made (by the agency) pursuant to Congress's power under Article IV, section 3, to dispose of U.S. property. Id. at 479-80, 102 S.Ct. 752.
To complete the edifice, Bowen v. Kendrick, 487 U.S. 589, 618-20, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988), held that taxpayers had standing to challenge grants by a federal agency to religious institutions pursuant to a statute that authorized grants to public and private institutions for services related to adolescents' sexual problems, even though the grants had not been made by Congress itself. Kendrick was a replay of Flast, where the complaint had been not about the statute itself, which said nothing about religion (there was such a complaint in Kendrick but the part of the Court's opinion dealing with that complaint does not relate to our case), but about the fact that 993 in administering the statute the executive branch had made grants to religious *993 institutions. Consistent with Flast, Kendrick reads Valley Forge as not requiring taxpayers to show that a statute violated the establishment clause; all they had to show was that a statute enacted pursuant to Congress's taxing and spending powers under Article I, section 8 had been necessary for the violation to occur it 0907 did not have to be sufficient. The violation was not completed until the executive branch acted, but the taxpayers still had standing to challenge it.
In Valley Forge the executive branch had simply given away surplus property, and while the property had probably been built or acquired with appropriated funds rather than donated to the government, the Court did not treat the transfer as an expenditure of appropriated funds. Similarly, in In re United States Catholic Conference, 885 F.2d 1020, 1027-28 (2d Cir.1989), where standing to challenge the Internal Revenue Service's grant of a tax exemption to the Catholic Church was denied, there was no expenditure of appropriated funds and no challenge to the exercise of Congress's taxing and spending powers. Cf. Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976); District of Columbia Common Cause v. District of Columbia, 858 F.2d 1, 3-4 (D.C.Cir.1988).
The present case, however, is governed by Kendrick. The taxpayers here are complaining about the use of money appropriated by Congress under Article I, section 8, to fund conferences that various executive-branch agencies hold to promote President Bush's "Faith-Based and Community Initiatives." This is a program that the President has created by a series of executive orders. One order established an Office of Faith-Based and Community Initiatives in the White House. Others established Centers for Faith-Based and Community Initiatives in the various federal departments.
The stated goal of the conferences is to promote community organizations whether secular or religious, as explained in the conferences' website (www.dtiassociates.com/FBCI/):
For years, faith-based and community groups have been assisting people in need. Unfortunately, the Federal government has often not been a willing partner to these groups in the provision of social services. President Bush has worked to change this. Since he took office, thousands of grassroots organizations have received training in the Federal grants process, and hundreds of these groups have successfully competed for Federal funds for the first time. The White House will host a new round of Conferences on Faith-Based and Community Initiatives to continue

supporting the work of effective social service programs. The conferences will provide participants with information about the Federal funding process, available funding opportunities, and the requirements that come with the receipt of Federal funds. The conferences will also provide an opportunity to inform State and local officials about equal treatment regulations and other central elements of the Faith-Based and Community Initiative. The conferences will be supported by the Departments of Justice, Agriculture, Labor, Health and Human Services, Housing and Urban Development, Education, Commerce, and Veterans Affairs, the Small Business Administration, and the Agency for International Development.
The plaintiffs claim that in fact the conferences are designed to promote religious community organizations over secular ones.
994 *994 The complaint0907all we have to go on at this stage is 0907 wordy, vague, and in places frivolous, as where it insinuates that the President is violating the establishment clause by "tout[ing] the allegedly unique capacity of faith-based organizations to provide effective social services" as 0907 if the President were not entitled to express his opinion about such organizations. But the complaint is not entirely frivolous, for it portrays the conferences organized by the various Centers as propaganda vehicles for religion, and should this be proved one could not dismiss the possibility that the defendants are violating the establishment clause, because it has been interpreted to require that the government be neutral between religion and irreligion as well as between sects. McCreary County v. American Civil Liberties Union of Kentucky, ___ U.S. ___, ___-___, 125 S.Ct. 2722, 2733-34, 162 L.Ed.2d 729 (2005); Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687, 696, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994); Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 14-17, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989). Neutrality goes both ways; if the government merely wants to redress discrimination against religious providers of social services, it is not violating the establishment clause. Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 839, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); Lynch v. Donnelly, 465 U.S. 668, 673, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984); Linnemeir v. Board of Trustees of Purdue University, 260 F.3d 757, 765 (7th Cir.2001). But these are the issues on the merits; the only question before us is the plaintiffs' standing to litigate the merits.
At argument the plaintiffs' counsel was unable to identify the appropriations that fund the conferences. The complaint does, however, allege that the conferences are funded by money derived from appropriations, which means from exercises of Congress's spending power rather than from, say, voluntary donations by private citizens. There is no suggestion that these are appropriations earmarked for these conferences, or for any other activities of the various Faith-Based and Community Initiatives programs, or for a statute pursuant to which the programs were created. The money must come from appropriations for the general administrative expenses, over which the President and other executive branch officials have a degree of discretionary power, of the departments that sponsor the conferences. Consolidated Appropriations Act, 2005, Pub.L. No. 108-447, 118 Stat. 2809, 2853, 3115-16, 3136, 3150, 3311-12; Department of Homeland Security Appropriations Act, 2005, Pub.L. No. 108-334, 118 Stat. 1298-99.
The difference, then, between this case on the one hand and Flast and Kendrick on the other is that the expenditures in those cases were pursuant to specific congressional grant programs, while in this case there is no statutory program, just the general "program" of appropriating some money to executive-branch departments without strings attached. The difference cannot be controlling. Suppose the Secretary of Homeland Security, who has unearmarked funds in his budget, decided to build a mosque and pay an Imam a salary to preach in it because the Secretary believed that federal financial assistance to Islam would reduce the likelihood of Islamist terrorism in the United States. No doubt so elaborate, so public, a subvention of religion would give rise to standing to sue on other grounds, just as in the St. Charles cross case; taxpayer standing in the hypothetical mosque case would not be essential to enabling a suit to be brought in federal court to challenge the violation of the establishment clause. But it would be too much of a paradox to recognize taxpayer standing only in cases in 995 which the violation of the establishment clause *995 was so slight or furtive that no other basis of standing could be found, and to deny it in the more serious cases.
At the other extreme, the fact that almost all executive branch activity is funded by appropriations does not confer standing to challenge violations of the establishment clause that do not involve expenditures. Imagine a suit

complaining that the President was violating the clause by including favorable references to religion in his State of the Union address. The objection to his action would not be to any expenditure of funds for a religious purpose; and though an accountant could doubtless estimate the cost to the government of the preparations, security arrangements, etc., involved in a State of the Union address, that cost would be no greater merely because the President had mentioned Moses rather than John Stuart Mill. In other words, the marginal or incremental cost to the taxpaying public of the alleged violation of the establishment clause would be zero. But in the hypothetical case of the mosque, and in the real though much less dramatic case before us, the objection is to a program for which money undoubtedly is "appropriated," albeit by executive officials from discretionary funds handed them by Congress, rather than by Congress directly.
The government asks us to shift the line so that it runs not between the Presidential (or other official) speech and a Presidential initiative (the conferences), but between the speech and the initiative, on the one hand, and grants made pursuant to the initiative, on the other hand. The conferences are concerned in part with instructing the attendants on how to apply for government grants for their religious organizations; but the challenge that is before us is not to the grants but to the conferences. The line proposed by the government (no standing to challenge the conferences, standing to challenge the grants) would be artificial because there is so much that executive officials could do to promote religion in ways forbidden by the establishment clause (which despite its wording applies to executive as well as congressional action, American Civil Liberties Union of Illinois v. City of St. Charles, supra, 794 F.2d at 270) without making outright grants to religious organizations. For the government to operate a mosque or other place of worship would not involve a grant unless a contractor was involved.
We are mindful that the Court in Flast carved an exception for "an incidental expenditure of tax funds in the administration of an essentially regulatory statute." Flast v. Cohen, supra, 392 U.S. at 102, 88 S.Ct. 1942. We may put to one side "regulatory" and focus on "incidental." That is a relative term. Whether an expenditure is incidental depends on what it is deemed incidental to. Every government expenditure could be thought incidental to the great goal of the public welfare, a pursuit that costs the federal government some $2 trillion a year, to which the cost of a mosque would certainly be incidental. The Department of Homeland Security alone has a budget of more than $30 billion, compared to which the funds required for the construction of a mosque would be small0907and therefore "incidental"? The religiously oriented programs challenged in Kendrick were incidental to the goal of solving problems of adolescent sexuality, but this did not negate taxpayer standing. If the conferences at issue in this case are, as the plaintiffs charge, intended to promote religion, the fact that their cost is slight relative to the budgets of the various departments that sponsor them does not make that cost incidental. Otherwise, indeed, there would be no federal taxpayer standing in any case.
996 The word "incidental" in Flast should be reserved for such cases as that of the *996 government's expenditure on an armored limousine to transport the President to the Capitol to deliver the State of the Union address in which he speaks favorably of religion. Or to the government's expenditure on processing the Catholic Church's application in In re United States Catholic Conference, supra, for a tax exemption. So while it is true that the executive branch would quickly grind to a halt without general budget appropriations from Congress, our analysis, tracking Kendrick, would not permit an individual citizen to challenge just any action of the executive with which he disagrees as a violation of the establishment clause.
The hypothetical case of standing to challenge a Presidential speech extolling religion turns out not to be entirely hypothetical. One of the defendants in this case is a former Secretary of Education, Rod Paige, whom the plaintiffs accuse not of sponsoring or administering conferences under the President's Faith-Based and Community Initiatives program but of having given a speech at one of them in which he said that "President Bush does this because he knows first-hand the power of faith to change lives 0907from the inside out. And the reason he knows this is because faith changed his life." The district judge was right to rule that the plaintiffs had no standing to sue Paige because of that remark, just as he was right to rule, in a part of the case not before us, that the plaintiffs do have standing to challenge actual grants made to faith-based organizations pursuant to the President's initiative. (The judge went on to dispose of that phase of the case on summary judgment, but the appeal does not challenge his disposition.)
We must consider finally the bearing of a line of cases, illustrated by United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94

S.Ct. 2925, 41 L.Ed.2d 706 (1974), and Public Citizen, Inc. v. Simon, 539 F.2d 211, 217-19 (D.C.Cir.1976), in which taxpayer standing to enforce provisions of the Constitution other than the establishment clause was rejected. The Public Citizen suit complained that federal employees were illegally assisting in President Nixon's reelection campaign. The court rejected "taxpayer standing to attack any executive action that draws on an outstanding appropriation on the ground that the purchases or services are not in accord with the congressional intent in passing the appropriation. This would place the judiciary in the role of management overseer of the Executive Branch. Such oversight is a function of Congress. . . . When what is involved is expenditures in implementation of a regulatory statute, or mere executive activity that entails some expenditures, there is no . . . arrow aimed at taxpayers as a class, but an activity of concern to the public at large." Federal employees employed in programs of unquestioned constitutionality cannot be sued by taxpayers simply because they divert some of their work time to improper purposes0907just as the President could not be sued for a speech extolling religion even in the unlikely event that the speech violated the establishment clause.
So if the plaintiffs acknowledged the underlying constitutionality of the Faith-Based and Community Initiatives program, the fact that government employees involved in the program sometimes wandered out of the neutral zone would not confer standing to sue. But since the program itself is challenged as unconstitutional, the fact that it was funded out of general rather than earmarked appropriations 0907that it was an executive rather than a congressional program0907does not deprive taxpayers of standing to challenge it. Taxpayers have standing to 997 challenge an executive-branch program, alleged to *997 promote religion, that is financed by a congressional appropriation, even if the program was created entirely within the executive branch, as by Presidential executive order. We therefore vacate the judgment and remand the case for a determination of the merits of those claims that we have determined the plaintiffs have standing to litigate.
VACATED AND REMANDED, WITH DIRECTIONS.
RIPPLE, Circuit Judge, dissenting.
Today, the panel majority holds that executive conduct alleged to have violated the Establishment Clause may be challenged by federal taxpayers so long as that conduct was financed in some manner by a congressional appropriation. Because I do not believe that the applicable Supreme Court precedent permits such a dramatic expansion of current standing doctrine, I respectfully dissent.
The modern doctrine of constitutional standing was hardborn and has endured a difficult adolescence. It has now reached a stage of maturity, however, where several milestones in its growth have become important and wellestablished doctrine firmly ingrained in the Nation's jurisprudence. As an intermediate appellate court, we cannot ignore or treat as malleable what the Supreme Court has mandated.
The first of these principles is the Court's insistence that the core factors in the doctrine of standing are not simply prudential matters of judicial restraint but constitutional requirements rooted firmly in the Case and Controversy Clause of the Third Article of the Constitution. "[A]t an irreducible minimum, Art. III requires the party who invokes the court's authority to show that he personally has suffered actual or threatened injury as a result of the putatively illegal conduct of the defendant, and that the injury can be traced to the challenged action and is likely to be redressed by a favorable decision." Valley Forge Coll. v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (internal quotations and citations omitted); see also Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). It is the first of these requirements0907the need for a concrete injury0907that must be the focus of our inquiry in this case. This "irreducible constitutional minimum" has required that the traditional formula for taxpayer standing, articulated by Chief Justice Warren in Flast v. Cohen, 392 U.S. 83, 102-03, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), be construed with "rigor." Valley Forge Coll., 454 U.S. at 481, 102 S.Ct. 752. That formula requires that the federal taxpayer establish a logical link between his status as a taxpayer and the type of legislative enactment attacked, which for taxpayers can be only an exercise of the congressional power under the Taxing and Spending Clause of Article I, § 8 of the Constitution. It also requires that the taxpayer establish a nexus between his status as a taxpayer and the precise nature of the constitutional infringement alleged. Flast at 102, 88 S.Ct. 1942. It is undisputed that the question before us requires that we focus on the first of these requirements and ask whether the plaintiffs have, in the allegations of their complaint, set forth with sufficient rigor a nexus between their status as taxpayers and an exercise of the congressional power under the Taxing and Spending Clause.

Before turning to a definitive answer to that question, we should pause for a moment and reflect on why the Supreme Court requires that we examine this assertion of nexus so rigorously. Taxpayer standing "pushes the envelop" on traditional notions of constitutional standing. Ever since Frothingham v. Mellon, 262 U.S. 447, 43 998 S.Ct. 597, 67 L.Ed. 1078 (1923), the specter of a citizen bringing a *998 lawsuit in a federal court to rectify an undifferentiated injury has loomed prominently over the development of our standing jurisprudence. Any assertion of taxpayer standing comes close, dangerously close, to becoming such a case. A lawsuit based on such undifferentiated injury a 0907 mere disagreement with the government policy is 0907 hardly the case and controversy within the jurisdiction of the federal courts.
When the Supreme Court has been called upon to examine this first prong of the Flast analysis, its decisions so far have been grounded on the fact that the complaint really did not present a grievance linked to the Taxing and Spending Clause, but instead based on another constitutional provision. Therefore, in United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974), the Court rejected the assertion of taxpayer standing over a suit based on the Accounts Clause. Again in Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974), the Court refused taxpayer standing to an individual who asserted a violation of the Incompatibility Clause. In Valley Forge, the Court similarly decided that a taxpayer suit that implicated the Property Clause, not the Taxing and Spending Clause, could not be maintained.
In this case, the gravamen of the plaintiffs' complaint is of course based on the Establishment Clause, a specific restriction on Congress' power to spend. But is it based on an exercise of the Taxing and Spending Clause? The plaintiffs ask that we answer that question in the affirmative because organizing and conducting the meetings in question involved the expenditure of government funds; the Government replies that the only funds involved are those made available to the President for the operation of his executive office. In its view, specific legislative expenditure under the taxing and spending power is simply not at stake. Rather, the object of the plaintiffs' complaint is the decision of the President to use the funds to conduct these meetings.
My colleagues take the view that, if a taxpayer can challenge the expenditure of government funds under a specific appropriation, they ought to be able to question an expenditure under a general appropriation as well. In my view, this approach, while possessing an initial appeal, simply cuts the concept of taxpayer standing loose from its moorings. The Court's post-Flast holdings make it clear that taxpayer standing survives as a narrow exception to Schlesinger, Richardson and Wright's ban on generalized grievances. It has survived, even on those narrow terms, only because of the inherent difficulty in enforcing the specific prohibition of the Establishment Clause against the expenditure of government funds for the establishment of religion. See Flast, 392 U.S. at 103, 88 S.Ct. 1942. Beneficiaries of such spending have no incentive to sue, and non-beneficiary outsiders cannot show a direct injury. Flast allows standing in these cases so that tax0907 and expenditure-based violations of the Establishment Clause do not go unremedied. The Supreme Court has made the judgment that the values embodied in the Case and Controversy Clause0907 separation of powers and the adversary process[1] 0907are 999 sufficiently protected when *999 a taxpayer makes a specific objection linked to a specific exercise of the taxing and spending power on the ground that it violates the Establishment Clause.
Indeed, a good illustration of Flast's limited purpose is the part of this case, no longer part of this appeal, in which Freedom from Religion challenged specific grants that it alleged were distributed preferentially to religious organizations under the government's faith-based programs. One of these grant programs was "Mentoring Children of Prisoners," established by Congress in the Promoting Safe and Stable Families Amendments of 2001, Pub.L. No. 107-133, 115 Stat. 2414 (2002). The program's purpose was to provide support for children with incarcerated parents, and it expressly made eligible for funding faith 0907 and community-based organizations. An organization called MentorKids USA applied for and received a grant under the congressional program. With its stated mission to "exalt the Lord Jesus Christ as the Son of God," MentorKids hired only Christians as mentors, and required its mentors to give monthly reports on the progression of their mentee's "relationship with God." R.53 at 9-10. On the allegation that Congress had made public funds available to MentorKids, the district court, quite properly, allowed taxpayer standing to challenge the grant.
Without the Flast exception, it is unlikely that anyone would have had standing to sue in such a situation. Certainly, MentorKids was not going to challenge the grant it received. Similarly, non-sectarian community groups

who applied for, but were denied a grant under the same program, would not have been able to satisfy the injuryin-fact and redressibility requirements of conventional standing doctrine; their injury would have been indirect and their allegations that they would have received funding but for the preferential treatment of religious groups would have been too speculative.[2] Finally, an individual plaintiff who came into direct contact with MentorKids and was offended by the group's religious message could not sue for violation of the Establishment Clause because MentorKids is not a state actor. Flast, therefore, remains necessary to allow challenges to situations in which Congress makes no public endorsement of religion but nevertheless supports a sectarian cause through the transfer of public funds. See Flast, 392 U.S. at 103, 88 S.Ct. 1942 ("Our history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general."); see also, e.g., Pulido v. Bennett, 860 F.2d 296, 297 (8th Cir.1988) (allowing taxpayer standing to bring an establishment clause challenge against a spending program that channeled funding to parochial schools).
1000 *1000 Because the Flast exception serves such a narrow purpose, its application has been confined to its express terms. After Schlesinger, Richardson and Valley Forge, to earn taxpayer standing a plaintiff must bring an attack against a disbursement of public funds made in the exercise of Congress' taxing and spending power; focus on a program originating in the executive branch will not suffice. See Valley Forge, 454 U.S. at 479, 102 S.Ct. 752 ("Flast limited taxpayer standing to challenges directed only at exercises of congressional power") (internal quotation marks and alterations omitted); Schlesinger, 418 U.S. at 228, 94 S.Ct. 2925 (denying standing because the taxpayer plaintiffs "did not challenge an enactment under Art. I, § 8, but rather the action of the Executive Branch").
Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988), did not alter the strictures on taxpayer standing. In Bowen, the Court upheld taxpayer standing to lodge an Establishment Clause challenge against the Adolescent Family Life Act ("AFLA"), a congressional spending program whose administration was delegated to the Secretary of Health and Human Services. Rejecting the Secretary's argument that funds were distributed by an executive branch agency rather than by Congress, the Court observed that "[t]he AFLA is at heart a program of disbursement of funds pursuant to Congress' taxing and spending powers, and appellees' claims call into question how the funds authorized by Congress are being disbursed pursuant to the AFLA's statutory mandate." Id. at 619-20, 108 S.Ct. 2562. That executive officials had been delegated the actual authority to write the checks did not matter. Id. at 619, 108 S.Ct. 2562 ("We do not think . . . that appellees' claim that AFLA funds are being used improperly by individual grantees is any less a challenge to congressional taxing and spending power simply because the funding authorized by Congress has flowed through and been administered by the Secretary."). The touchstone of the Flast inquiry, according to Bowen, was whether the Secretary had been "given authority under the challenged statute to administer the spending program that Congress had created." Id. (emphasis added).
I cannot accept my colleagues' contention that Bowen broadens taxpayer standing so that it is sufficient for plaintiffs to show merely that a congressional appropriations statute enabled the executive branch to violate the Establishment Clause. Such a standard makes virtually any executive action subject to taxpayer suit. The executive can do nothing without general budget appropriations from Congress and the approach of my colleagues will permit an individual citizen to challenge any action of the executive with which he disagrees, as violative of the Establishment Clause. Bowen simply did not sanction such a judicial intrusion into the affairs of the executive at the request of an individual who can assert no specific connection between his status as a taxpayer and the executive decision. See Bowen, 487 U.S. at 620, 108 S.Ct. 2562 ("In this litigation there is still a sufficient nexus between the taxpayer's standing as taxpayer and the congressional exercise of taxing and spending power. . . ."). In short, my colleagues expand the narrow concept of taxpayer standing to the point where it cannot be distinguished from the citizen standing that the Supreme Court has regarded, throughout the development of the modern standing doctrine, as destructive of the case and controversy limitation on the power of the federal courts to intrude into the decision-making prerogatives of the executive branch.
1001 The majority's position sets this circuit on a course different from that of the other *1001 courts to have applied the Flast exception after Bowen. The Court of Appeals for the District of Columbia Circuit, when asked by municipal taxpayers to prohibit the District of Columbia from expending public funds to oppose citizens' initiatives, observed that the "[Supreme] Court has never recognized federal taxpayer standing outside [of Flast's] narrow

facts, and it has refused to extend Flast to exercises of executive power." District of Columbia Common Cause v. District of Columbia, 858 F.2d 1, 3-4 (D.C.Cir.1988) (citations omitted). Similarly, in In re United States Catholic Conference, 885 F.2d 1020 (2d Cir.1989), the Court of Appeals for the Second Circuit denied taxpayer standing to pro-choice supporters who alleged that the IRS, by granting tax-exempt status to the Catholic church, had violated the Establishment Clause. The court reasoned:
Plaintiffs in the instant case do not challenge Congress' exercise of its taxing and spending power as embodied in § 501(c)(3) of the [Tax] Code; they do not contend that the Code favors the Church. . . . Instead, they argue that the IRS, in allegedly closing its eyes to violations by the Church, is disregarding the Code's mandate and the Constitution. The complaint centers on an alleged decision made solely by the executive branch that in plaintiffs' view directly contravenes Congress' aim. The instant case is therefore distinguishable from [Bowen v. Kendrick]. In that case, there was "a sufficient nexus between the taxpayer's standing as a taxpayer and the congressional exercise of taxing and spending power, notwithstanding the role the Secretary plays in administering the statute." Kendrick, 108 S.Ct. at 2580. Here, there is no nexus between plaintiffs' allegations and Congress' exercise of its taxing and spending power. Hence, Kendrick does not alter the requirements of taxpayer standing to allow the instant plaintiffs to challenge how the IRS administers the Code.
Id. at 1028. In short, the Second Circuit squarely held that the alleged executive branch misapplication of a statutory tax exemption enacted by Congress under its Taxing and Spending Power is, under prevailing Supreme Court precedent, insufficient to support taxpayer standing. Like an arguably illegal executive expenditure (like the one alleged in this case), the misapplication of a tax exemption impacts the congressional policy decision embodied in the statute. It is not, however, an attack on Congress' exercise of the Taxing and Spending Power.
As these cases demonstrate, our sister circuits have refused to interpret Bowen as affording taxpayer standing based simply upon a showing that a statute enabled the executive branch to violate the Establishment Clause. This circuit ought to follow the same course and, in the process, adhere to the principles set forth in the Supreme Court's case law. Accordingly, I respectfully dissent.
[1] See Flast v. Cohen, 392 U.S. 83, 94-95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) ("Embodied in the words `cases' and `controversies' are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government.")
[2] Cf. Allen v. Wright, 468 U.S. 737, 757, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (holding that parents lacked standing to challenge tax-exempt status of discriminatory private schools because it was too "speculative . . . whether withdrawal of a tax exemption from any particular school would lead the school to change its policies"); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) (denying standing to challenge the tax-exempt status of hospitals who refused care to indigents because the injury to plaintiffs was highly indirect and "result[ed] from the independent action of some third party not before the court"). Likewise, as the Court pointed out in Warth v. Seldin, "the indirectness of the injury . . . may make it substantially more difficult to meet the minimum requirement of Art. III." 422 U.S. 490, 505, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).
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 Freedom From Religion Foundation, Inc. v. Chao, 447 F.3d 988 (2006)
447 F.3d 988 United States Court of Appeals,
Seventh Circuit.
FREEDOM FROM RELIGION FOUNDATION, INC., et al., Plaintiffs-Appellants, v.
Elaine L. CHAO, Secretary of Department of Labor, et al., Defendants-Appellees.
No. 05-1130. | May 3, 2006.
Appeal from the United States District Court for the Western District of Wisconsin. 04 C 0381S-John C. Shabaz, Judge.
Attorneys and Law Firms
Richard L. Bolton (argued), Boardman, Suhr, Curry & Field, Madison, WI, for Plaintiff-Appellant.
Lowell Sturgill (argued), Dept. of Justice Civil Rights Div. Appellate Section, Washington, DC, for Defendant-Appellee.
Before Hon. JOEL M. FLAUM, Chief Judge, Hon. RICHARD A. POSNER, Hon. FRANK H. EASTERBROOK, Hon. KENNETH F. RIPPLE, Hon. DANIEL A. MANION, Hon. MICHAEL S. KANNE, Hon. ILANA DIAMOND ROVNER, Hon. DIANE P. WOOD, Hon. TERENCE T. EVANS, Hon. ANN CLAIRE WILLIAMS, Hon. DIANE S. SYKES, Circuit Judges.
Opinion
ORDER
On March 13, 2006, defendants-appellees filed a petition for rehearing with suggestion of rehearing en banc. A vote of the active members of the Court was requested, and a majority has voted to deny the petition.* The petition is therefore DENIED.
FLAUM, Chief Judge, concurring in the denial of rehearing en banc.
Along with Judge Easterbrook, my vote to deny the petition for rehearing en banc is not premised upon a conclusion that the taxpayer standing issue as addressed in the panel opinion is free from doubt. Indeed, the position set forth in the dissent is one which could eventually command high court endorsement. However, the obvious tension which has evolved in this area of jurisprudence, as evidenced by the scholarly opinions of Judge Posner and Judge Ripple, can only be resolved by the Supreme Court. In my judgment, the needed consideration of this important issue by that tribunal would be unnecessarily delayed by our further deliberation.
*989 EASTERBROOK, Circuit Judge, concurring in the denial of rehearing en banc.
My vote to deny the petition for rehearing en banc does not imply that I deem the panel’s resolution beyond dispute or the issue unimportant. To the contrary, the subject is both recurring and difficult, and there is considerable force in Judge Ripple’s dissent, 433 F.3d 989, 997-1001 (7th Cir.2006), and in the standing analysis of Judge Sykes’s dissent from Laskowski v. Spellings, 443 F.3d 930, 941-46 (7th Cir.2006), which extends this panel’s holding. Two divided decisions on related matters that put the judicial and the political branches of the federal government at odds imply the wisdom of further review. My vote to deny rehearing rests on a conclusion that this is not the right forum for that further deliberation.
The principal difficulty with arguments pro and con about taxpayer standing is that the doctrine is arbitrary. Taxpayers lack standing to complain about almost all expenditures. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), held that taxpayer suits about religious outlays are special but declined to overrule Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), which holds that taxpayers lack standing to complain about public expenditures. To the extent
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Freedom From Religion Foundation, Inc. v. Chao, 447 F.3d 988 (2006)
that the Establishment Clause forbids taxation to support religion, people subject to the illegal levy may obtain relief, but plaintiffs in this litigation do not say that they have paid one extra penny because of the grant. Where’s the concrete injury? The loss (if any) is mental distress that plaintiffs, who are bystanders to the challenged program, suffer by knowing about conduct that they deem wrongful. Article III does not permit courts to entertain such complaints. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976); United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974). Cf. Metro-North Commuter R.R. v. Buckley, 521 U.S. 424, 117 S.Ct. 2113, 138 L.Ed.2d 560 (1997). Yet Flast has so far resisted efforts either to cabin it or to incorporate its approach into a more general framework of justiciability.
Our panel’s majority has concluded that the doctrine of taxpayer standing will be more logical if it covers administrative as well as legislative earmarks. I grant that proposition-but comprehensiveness and rationality are not this doctrine’s hallmarks. Why may taxpayers complain about outlays of cash but not about a distribution of real or personal property? See Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Cash may be exchanged for property or the reverse; a distinction between cash and property for the purpose of standing is illogical but embedded in the cases.
Why may taxpayers complain about modest expenditures (the grant in Laskowski was $500,000, or less than a cent per U.S. taxpayer) but not about slightly smaller ones? According to the panel, a complaint that the President used the State of the Union Address to promote religion is not justiciable. The panel dismissed a claim against the Secretary of Education that rested on the expense that the Secretary had incurred to deliver a speech. See 433 F.3d at 995-96. The total cost of presidential proclamations and speeches by Cabinet officers that touch on religion (Thanksgiving and several other *990 holidays) surely exceeds $500,000 annually; it may cost that much to use Air Force One and send a Secret Service detail to a single speaking engagement. If money from the Treasury is to supply the identifiable trifle for standing, then the only tenable line is between $0 (no cost to taxpayers as a whole) and $1 (some cost, however dilute); yet the panel draws a line between $500,000 and $50,000 or $5,000 (even if there are lots of speeches or proclamations at $5,000 or $50,000 apiece). Where is the coherence in such a doctrine? That no court is willing (yet!) to entertain a suit about a speech that costs $50,000 to draft, deliver, and distribute through the Government Printing Office-while adjudicating objections to $500,000 grants that do not cost the plaintiff even 1¢-suggests problems in Flast ‘s underpinning and application.
Perhaps Michael Newdow should have invoked his tax return, rather than his status as a father, to challenge the inclusion of “under God” in the Pledge of Allegiance. What is the price tag in both money and the opportunity cost of time to print many million copies of that phrase and read it daily in thousands of classrooms? As it was, however, the Supreme Court deemed his suit non-justiciable. See Elk Grove Unified School District v. Newdow, 542 U.S. 1, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004).
But this arbitrariness is built into the doctrine as it comes to us. Nothing we can do would eliminate the tension between Flast and Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988), on the one hand, and Frothingham and Valley Forge (plus the many cases such as Defenders of Wildlife ) on the other. The problem is not of our creation and cannot be resolved locally. There is no logical way to determine the extent of an arbitrary rule. Only the rule’s proprietors can bring harmony-whether by extension or contraction-or decide to tolerate the existing state of affairs.
RIPPLE, Circuit Judge, with whom MANION, KANNE and SYKES, Circuit Judges, join, dissenting from the denial of rehearing en banc.
The Government has requested that the court hear this case en banc. Because the decision of the panel majority departs significantly from established Supreme Court precedent and creates an inter-circuit conflict, I believe that the Government’s considered request reflects its serious concern about the impact of the panel majority’s holding on executive governance. Therefore, I believe that the case should be set for rehearing en banc, and that a decision be rendered that reflects the view of the entire court. Indeed, because this case also reflects a view about the nature of Article III judicial power, the case has serious implications for judicial governance, and we, as officers of that branch, have a special duty to ensure that a decision expanding the authority that we claim for ourselves represents the considered judgment of every judge on this court. Such a review is especially appropriate when the Government specifically charges, as it has here, that the court has “greatly exceeded its authority by ignoring the Supreme Court’s own rules ... and substituting its own views of what the law rationally ought to be.” Pet. Reh’g at 13.
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Freedom From Religion Foundation, Inc. v. Chao, 447 F.3d 988 (2006)
The panel majority’s opinion does not square with the Supreme Court’s taxpayer standing cases beginning with Flast v. Cohen, continuing with Valley Forge Christian College, and ending most recently with Bowen v. Kendrick. In each of these cases, the plaintiffs’ claims to taxpayer standing turned on the strength of the nexus demonstrated between their status as taxpayers and the challenged congressional expenditure. In Flast, taxpayers *991 had shown such a nexus because they alleged that Congress had violated the Establishment Clause by authorizing grants to parochial schools, even though the money passed through an executive agency. Bowen found a sufficient taxpayer nexus to challenge the constitutionality of a congressional spending program that allowed religious institutions to receive federal funds, even though the program was administered by the Secretary of Health and Human Services. By contrast, Valley Forge prohibited taxpayers from halting a purely executive decision to transfer surplus public land to a religious institution. What distinguished the Valley Forge plaintiffs from those in Flast and Bowen was that “the source of their complaint [was] not a congressional action, but a decision by [the executive agency] to transfer a parcel of federal property.” Valley Forge, 454 U.S. at 479, 102 S.Ct. 752. In short, Valley Forge held that the constitutionally-required nexus between a plaintiff’s status as taxpayer and “ ‘exercises of congressional power’ ” erodes without an allegation that Congress has violated the Establishment Clause. Id. (quoting Flast, 392 U.S. at 102, 88 S.Ct. 1942).
Here, as in Valley Forge, the plaintiffs do not complain of any action taken by Congress. The plaintiffs never alleged that Congress violated the Establishment Clause by appropriating funds. Here, as in Valley Forge, there is no allegation that Congress authorized the challenged activities; and, as far as the record reflects, the challenged executive action involved no more incidental expenditure than the transfer of public land in Valley Forge. Nevertheless, the panel decision held that the plaintiffs had standing because the congressional appropriation was “necessary for the violation to occur,” Freedom from Religion Foundation, Inc. v. Chao, 433 F.3d 989, 993 (7th Cir.2006). Some expenditure of governmental funds is necessary for every executive action. That reality is present here as it was present in Valley Forge. However, the Supreme Court, in making an exception to usual standing rules for taxpayers has drawn a very clean line in order to avoid making the federal courts a forum for all sorts of complaints about the conduct of governmental affairs on no basis other than citizen standing. Abolishing or even diluting a standard so explicitly set by the Supreme Court simply is not an appropriate decision for us to make. We have a duty to apply faithfully the precedent of the Supreme Court until that precedent is overruled by the Supreme Court. See State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997).
We also ought to hear this case en banc because the panel majority has created a clear conflict on this issue. Most to the point is In re United States Catholic Conference, 885 F.2d 1020 (2d Cir.1989). There, the Court of Appeals for the Second Circuit denied taxpayer standing to pro-choice supporters who sought to challenge a decision by the IRS to grant tax-exempt status to the Catholic Church. Critically, as in Valley Forge and in this case, the plaintiffs had not asserted that Congress wrote the Internal Revenue Code in a manner that favored the Catholic Church. Nor had they alleged that the Code authorized the IRS to do what it was doing (allegedly closing its eyes to violations by the Church). Instead, “[t]he complaint center[ed] on an alleged decision made solely by the executive branch that, in plaintiffs’ view, directly contravene[d] Congress’ aim.” Id. at 1028. The plaintiffs therefore had not established, as the Supreme Court requires, “a sufficient nexus between the taxpayer’s standing as a taxpayer and the congressional exercise of taxing and spending power.” Id. (emphasis added). The present case is indistinguishable. *992 1
Fortunately, this case not only meets the criteria for en banc review set forth in our rules, see Fed. R.App. P. 35, but also the criteria for certiorari review in the Supreme Court of the United States, see Sup.Ct. R. 10. This court has “decided an important federal question in a way that conflicts with the relevant decisions” of the Supreme Court. See Sup.Ct. R. 10(c). It also has “entered a decision in conflict with the decision of another United States court of appeals on the same important matter.” Sup.Ct. R. 10(a). The Government therefore has one last forum in which to seek a return to traditional principles governing the right of a taxpayer to challenge a decision of the executive.

Footnotes

*

Chief Judge Flaum and Judge Easterbrook have written opinions concurring in the denial of the petition for rehearing en banc.

Judge Ripple has written an opinion, which Judge Manion, Judge Kanne, and Judge Sykes have joined, dissenting from the denial

of the petition.

1

The panel majority’s terse attempt to distinguish In re United States Catholic Conference on the basis of there being, in that case,

“no expenditure of appropriated funds,” Freedom from Religion Foundation, Inc. v. Chao, 433 F.3d 989, 993 (7th Cir.2006),

misses the mark. For purposes of taxpayer standing, a tax exemption is no different from a positive appropriation, and no less an

exercise of Congress’ power to tax and spend for the general welfare. See U.S. Const. art. I, sec. 8.

3

Freedom From Religion Foundation, Inc. v. Chao, 447 F.3d 988 (2006) 4

 
 Freedom From Religion Foundation, Inc. v. Chao, 250 Fed.Appx. 751 (2007)

250 Fed.Appx. 751 This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter See
Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Seventh Circuit Rule 32.1.
(Find CTA7 Rule 32.1) United States Court of Appeals,
Seventh Circuit.
FREEDOM FROM RELIGION FOUNDATION, INCORPORATED, Anne Gaylor, Annie L. Gaylor,
et al., Plaintiffs-Appellants, v.
Elaine L. CHAO, Tommy G. Thompson, and Alberto Gonzales, Defendants-Appellees.
No. 05-1130. | Submitted Aug. 30, 2007. | Decided Oct. 15, 2007.
Appeal from the United States District Court for the Western District of Wisconsin. No. 04 C 381. John C. Shabaz, Judge.
Attorneys and Law Firms
Richard L. Bolton, Boardman, Suhr, Curry & Field,

Madison, WI, for Plaintiffs-Appellants.
Lowell Sturgill, Department of Justice Civil Rights Division, Appellate Section, Washington, DC, for Defendants-Appellees.
Before Hon. RICHARD A. POSNER, Circuit Judge, Hon. KENNETH F. RIPPLE, Circuit Judge, Hon. DIANE P. WOOD, Circuit Judge.
Opinion
ORDER
Pursuant to the judgment of the Supreme Court, reversing our decision in Freedom from Religion Foundation v. Chao, 433 F.3d 989 (7th Cir.2006), reversed under the name Hein v. Freedom From Religion Foundation, ---U.S. ----, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007), the judgment of the district court is AFFIRMED.
Parallel Citations
2007 WL 2988641 (C.A.7 (Wis.))
	  

1