In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3451

EUGENE WINKLER, GARY GERSEN, TIMUEL BLACK,

MARY CAY MARUBIO, and C. DOUGLAS FERGUSON,

Plaintiffs-Appellees,

v.

ROBERT M. GATES, Secretary of Defense,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99-2424—Blanche M. Manning, Judge.

____________

ARGUED APRIL 6, 2006—DECIDED APRIL 4, 2007

____________

Before BAUER, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge. This appeal presents another

variation on the question whether taxpayers have standing to challenge a governmental action that allegedly

violates the Establishment Clause—an issue that arises

with some regularity. See Freedom From Religion Foundation, Inc. v. Chao, 433 F.3d 989 (7th Cir. 2006), cert.

granted sub nom. Hein v. Freedom From Religion Foundation, Inc., 127 S.Ct. 722 (2006) (No. 06-157); Hinrichs v.

Bosma, 440 F.3d 393 (7th Cir. 2006); Laskowski v. Spellings, 443 F.3d 930 (7th Cir. 2006), as modified on rehear-
2 No. 05-3451

ing, 456 F.3d 702 (7th Cir. 2006). Each of these cases

addresses challenging issues in an area of law in which the

law is by no means clear.

Here, the taxpayers’ target is a federal statute, 10 U.S.C.

§ 2554, that requires the United States military to assist

the Boy Scouts of America (BSA) organization with its

Jamboree, a national event held every four years. Plaintiff Eugene Winkler and others (to whom we refer collectively as Winkler) sued the Secretary of Defense claiming

that the Jamboree statute violates the Establishment

Clause because it requires the government to support an

organization—BSA—that conditions membership upon a

belief in God and thus that excludes believers in religions

that are not based on one or more Deities, agnostics, and

atheists. The Secretary moved to dismiss on the ground

that taxpayer standing did not exist on these facts, but the

district court ruled that standing was proper. It then found

that BSA is a religious organization and that the direct

public subsidy of the Jamborees violated the Establishment Clause.

We conclude that Winkler does not have standing to

challenge the Jamboree statute. We therefore do not

reach the complex question whether aid to a civic organization that conditions membership on a particular religious

belief but that does not otherwise exclude people from its

activities violates the Establishment Clause.

I

Standing jurisprudence, as the Supreme Court has

explained, contains two strands: Article III standing,

which enforces the Constitution’s case-or-controversy requirement, see Lujan v. Defenders of Wildlife, 504 U.S.

555, 559-62 (1992); and prudential standing, which

embodies “ ‘judicially self-imposed limits on the exercise of
No. 05-3451 3

federal jurisdiction,’ Allen [v. Wright], 468 U.S. [737,] 751

[(1984)].” Elk Grove Unified School Dist. v. Newdow, 542

U.S. 1, 11-12 (2004). As the Lujan Court put it, there are

three elements of Article III standing: injury in fact, a

causal connection between the injury and the defendant’s

conduct, and likely redressability through a favorable

decision. 504 U.S. at 560-61. Prudential standing is

somewhat harder to define, but Newdow “explained that

prudential standing encompasses ‘the general prohibition

on a litigant’s raising another person’s legal rights, the

rule barring adjudication of generalized grievances more

appropriately addressed in the representative branches,

and the requirement that a plaintiff’s complaint fall

within the zone of interests protected by the law invoked.’ ” 542 U.S. at 12 (quoting Allen, 468 U.S. at 751). It

is the latter branch of standing doctrine that concerns

us in this appeal.

At one time, the Supreme Court did not recognize any

doctrine of taxpayer standing in federal court. A taxpayer’s

stake in any government action, the Court pointed out, “is

shared with millions of others, is comparatively minute

and indeterminable, and the effect upon future taxation, of

any payment out of the funds, [is] so remote, fluctuating

and uncertain, that no basis is afforded for an appeal to

the preventive powers of a court of equity.” Frothingham

v. Mellon, 262 U.S. 447, 487 (1923). See also Doremus v.

Bd. of Educ. of Borough of Hawthorne, 342 U.S. 429

(1952). This restraint on standing remains the general rule

today. See, e.g., Bennett v. Spear, 520 U.S. 154, 167 (1997);

Lujan, 504 U.S. at 560-61.

Flast v. Cohen, 392 U.S. 83 (1968), recognized a narrow

but important modification to the Frothingham rule. In

Flast, the Court began by addressing the question whether

Frothingham had announced a constitutional ban against

taxpayer standing, derived from Article III, or if “the Court
4 No. 05-3451

was simply imposing a rule of self-restraint which was not

constitutionally compelled.” 392 U.S. at 92. Although the

government there argued that Frothingham had been

constitutionally compelled, id., the Court noted that the

reasons given in the earlier case “suggest[ed] that the

Court’s holding rest[ed] on something less than a constitutional foundation.” Id. at 93. In the end, after noting that

standing, like the other justiciability doctrines, involves

a “blend of constitutional requirements and policy considerations,” id. at 99, the Court found that there is “no

absolute bar in Article III to suits by federal taxpayers

challenging allegedly unconstitutional federal taxing and

spending programs,” id. at 101. Put differently, although

Article III may usually bar taxpayer standing, it does not

always have that effect. Cf. DaimlerChrysler Corp. v.

Cuno, 126 S.Ct. 1854, 1861-63 (2006) (rejecting state

taxpayer standing to challenge state law on Commerce

Clause grounds). The Flast Court described the concededly limited set of cases in which a litigant would have

standing to assert claims solely in her capacity as a

taxpayer:

First, the taxpayer must establish a logical link

between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party

to allege the unconstitutionality only of exercises of

congressional power under the taxing and spending

clause of Art. I, § 8, of the Constitution. It will not be

sufficient to allege an incidental expenditure of tax

funds in the administration of an essentially regulatory statute. . . . Secondly, the taxpayer must establish

a nexus between that status and the precise nature of

the constitutional infringement alleged.

392 U.S. at 102-03. The plaintiffs in Flast wanted the court

to enjoin the expenditure of federal funds under the

Elementary and Secondary Education Act of 1965. Those
No. 05-3451 5

1 We recognize that the Court will have more to say about this

area in Freedom from Religion. The questions presented in that

case, however, reveal that no party is asking the Supreme Court

to expand taxpayer standing. Petitioners, represented by the

Solicitor General, phrase the question as follows: “Whether

taxpayers have standing under Article III of the Constitution to

challenge, on Establishment Clause grounds, the actions of

Executive Branch officials pursuant to an Executive Order,

(continued...)

funds, they alleged, were being used to support religious

schools in violation of the Establishment Clause. The

Court found that the required nexus existed where the

constitutional infringement alleged amounted to a direct

violation of the Establishment Clause. Id. at 103-04. The

Court distinguished Frothingham as a challenge under

the Due Process Clause, which, unlike the Establishment

Clause, does not impose a specific limitation on Congress’s

power to tax and spend. Id. at 104-05. In the present case,

Winkler is claiming that a particular statute violates the

Establishment Clause. Just as in Flast, that is enough to

show the required nexus between his status as a taxpayer

and the alleged constitutional infringement.

The more difficult question is whether the Jamboree

statute is the type of legislative enactment that the Flast

Court had in mind. Is it an “exercise[ ] of congressional

power under the taxing and spending clause of Art. I, § 8,”

or do we have only an “incidental expenditure of tax

funds in the administration of an essentially regulatory

statute”? 392 U.S. at 102-03. The Supreme Court has

provided some guidance for the way in which that question

should be approached. The two most important cases for

present purposes are Valley Forge Christian College v.

Americans United for Separation of Church & State, 454

U.S. 464 (1982), and Bowen v. Kendrick, 487 U.S. 589

(1988).1
6 No. 05-3451

1 (...continued)

where the conduct at issue is financed only indirectly through

general appropriations legislation and no funds are disbursed to

any institutions or individuals outside the government.” Respondents ask “Whether the standing principle recognized in Flast v.

Cohen, 392 U.S. 83 (1968), and reaffirmed unanimously in Bowen

v. Kendrick, 487 U.S. 605 (1988), permits taxpayers to challenge

on Establishment Clause grounds an expenditure of funds

pursuant to a congressional authorization when that expenditure

is fairly traceable to the allegedly unconstitutional conduct.”

Since, as we explain in this opinion, we conclude that standing

is lacking even under the theories the Freedom from Religion

respondents are urging the Court to adopt, we see no reason to

hold this case for the Court’s decision.

In Valley Forge, the plaintiffs challenged the decision of

the Secretary of Health, Education, and Welfare to transfer a defunct property that had once been a military

hospital to Valley Forge Christian College. The Secretary

was authorized to make that decision under a federal

statute permitting the transfer of surplus property to

private and public entities that might make use of it. The

Supreme Court found that the plaintiffs had no standing to challenge the Secretary’s action in court, because

the challenged action was not an exercise of the taxing and

spending power. Instead, the statute authorizing the

administrative decision had relied upon Congress’s power

under the U.S. Constitution’s Property Clause, Art. IV,

§ 3, cl. 2. See 454 U.S. at 480. The Court took note of how

far removed the action that the executive took in Valley

Forge was from the imposition of a tax:

Although not necessary to our decision, we note that

any connection between the challenged property

transfer and respondents’ tax burden is at best speculative and at worst nonexistent. Although public

funds were expended to establish Valley Forge
No. 05-3451 7

General Hospital, the land was acquired and the

facilities constructed 30 years prior to the challenged

transfer. . . . Moreover, each year of delay in disposing

of the property depleted the Treasury by the amounts

necessary to maintain a facility that had lost its value

to the Government.

Id. at 480 n.17. This footnote, while perhaps technically

dicta, sheds some light on why the Supreme Court saw

the statute in question as one based primarily (even if

not exclusively) on the Property Clause.

Six years after Valley Forge, the Supreme Court revisited taxpayer standing in Bowen. In that case, taxpayers

claimed that a federal grant program that Congress had

enacted and had entrusted to an executive agency for

implementation violated the Establishment Clause. Without discussing standing at any length, the Court held that

the law was not unconstitutional on its face. 487 U.S. at

617-18. Turning to the taxpayers’ challenge to the law as

applied, however, the Court identified the first question as

whether the taxpayers had standing to pursue their claim.

Id. at 618. It concluded that they did:

We do not think, however, 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. Indeed, Flast itself

was a suit against the Secretary of HEW, who had

been given authority under the challenged statute to

administer the spending program that Congress had

created. . . . [W]e have not questioned the standing of

taxpayer plaintiffs to raise Establishment Clause

challenges, even when their claims raised questions

about the administratively made grants. . . . Nor is

this, as we stated in Flast, a challenge to “an inciden-
8 No. 05-3451

tal expenditure of tax funds in the administration of

an essentially regulatory statute.” The 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. In this litigation there is 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.

Id. at 619-20 (internal citation omitted). The question for

us, briefly put, is whether the Jamboree statute is more

like the surplus property act in Valley Forge or more like

the AFLA program in Bowen. (Although this aspect of

prudential standing requires us to peek at the merits of

the case, this overlap is inevitable under existing law,

which requires us to ask whether the expenditure of funds

was or was not “incidental.”)

II

Whether a party has standing to bring a “case or controversy” before the court is a question of law that this court

reviews de novo. Wisconsin Right to Life, Inc. v. Schober,

366 F.3d 485, 489 (7th Cir. 2004). If there were factual

questions, we would review the district court’s factual

determinations for clear error. Id.

Because the Jamboree statute, 10 U.S.C. § 2554, is

central to our decision, we begin with its text. The statute

has been altered several times over the years, most

recently during the pendency of this litigation. For the

convenience of the reader, we reproduce it in full, despite

its length:
No. 05-3451 9

§ 2554. Equipment and other services: Boy Scout

Jamborees

(a) The Secretary of Defense is hereby authorized,

under such regulations as he may prescribe, to lend to

the Boy Scouts of America, for the use and accommodation of Scouts, Scouters, and officials who attend any

national or world Boy Scout Jamboree, such cots,

blankets, commissary equipment, flags, refrigerators,

and other equipment and without reimbursement,

furnish services and expendable medical supplies, as

may be necessary or useful to the extent that items

are in stock and items or services are available.

(b) Such equipment is authorized to be delivered at

such time prior to the holding of any national or

world Boy Scout Jamboree, and to be returned at such

time after the close of any such jamboree, as may be

agreed upon by the Secretary of Defense and the Boy

Scouts of America. No expense shall be incurred by

the United States Government for the delivery, return,

rehabilitation, or replacement of such equipment.

(c) The Secretary of Defense, before delivering such

property, shall take from the Boy Scouts of America,

good and sufficient bond for the safe return of such

property in good order and condition, and the whole

without expense to the United States.

(d) The Secretary of Defense is hereby authorized

under such regulations as he may prescribe, to provide, without expense to the United States Government, transportation from the United States or military commands overseas, and return, on vessels of the

Military Sealift Command or aircraft of the Air Mobility Command for (1) those Boy Scouts, Scouters, and

officials certified by the Boy Scouts of America, as

representing the Boy Scouts of America at any national or world Boy Scout Jamboree, and (2) the
10 No. 05-3451

equipment and property of such Boy Scouts, Scouters,

and officials and the property loaned to the Boy Scouts

of America, by the Secretary of Defense pursuant to

this section to the extent that such transportation

will not interfere with the requirements of military

operations.

(e) Before furnishing any transportation under subsection (d), the Secretary of Defense shall take from

the Boy Scouts of America, a good and sufficient bond

for the reimbursement to the United States by the

Boy Scouts of America, of the actual costs of transportation furnished under this section.

(f) Amounts paid to the United States to reimburse it

for expenses incurred under subsection (b) and for the

actual costs of transportation furnished under subsection (d) shall be credited to the current applicable

appropriations or funds to which such expenses and

costs were charged and shall be available for the same

purposes as such appropriations or funds.

(g) In the case of a Boy Scout Jamboree held on a

military installation, the Secretary of Defense may

provide personnel services and logistical support at the

military installation in addition to the support authorized under subsections (a) and (d).

(h) Other departments of the Federal Government are

authorized, under such regulations as may be prescribed by the Secretary thereof, to provide to the Boy

Scouts of America, equipment and other services,

under the same conditions and restrictions prescribed

in the preceding subsections for the Secretary of

Defense.

(i)(1) The Secretary of Defense shall provide at least

the same level of support under this section for a

national or world Boy Scout Jamboree as was pro-
No. 05-3451 11

vided under this section for the preceding national or

world Boy Scout Jamboree.

(2) The Secretary of Defense may waive paragraph (1),

if the Secretary—

(A) determines that providing the support subject

to paragraph (1) would be detrimental to the

national security of the United States; and

(B) submits to Congress a report containing such

determination in a timely manner, and before the

waiver takes effect.

Since the entire purpose of this statute is to aid the Boy

Scouts with their marquee program, the Jamboree, we

must also look briefly at who they are and why this

controversy arose. The Boy Scout movement was founded

in 1907 in England by Lord Robert Baden-Powell. Three

years later, in 1910, William D. Boyce founded BSA as a

private, nonprofit organization. In 1916, in recognition of

BSA’s record of public service, Congress granted BSA a

federal charter. See 36 U.S.C. § 30901 et seq. As of the

time the record in this case was compiled, there were over

three million youth and one million adult volunteers

participating in the organization.

Few would dispute the fact that the Boy Scouts have,

over the years, provided a valuable outlet for countless

young people. The issue here, however, is whether (or to

what extent) it should be viewed as a religious organization. Without a doubt, there are some religious aspects to

scouting. The Boy Scout Oath begins with the phrase “On

my honor I will do my best To do my duty to God and my

Country . . . .” The Scout Law demands, among other

things, that a Scout “is Reverent toward God. He is

faithful in his religious duties. He respects the beliefs of

others.” Scouting is not, however, affiliated with any

particular religious denomination; to the contrary, BSA
12 No. 05-3451

welcomes young people of every religion as well as those

who are not affiliated with any organized religion, so long

as they are willing to accept the Oath and the Scouting laws. BSA admits that atheists and agnostics are

ineligible for membership or leadership positions in

Scouting. On the other hand, significantly for the specific

issue before us, anyone, including members of the general

public, may attend the Jamboree. Although certain aspects

of the BSA’s membership rules have led to litigation in

recent years (particularly its stand with respect to sexual

orientation), see Boy Scouts of America v. Dale, 530 U.S.

640 (2000), Boy Scouts of America v. Wyman, 335 F.3d 80

(2d Cir. 2003), Evans v. City of Berkeley, 129 P.3d 394 (Cal.

2006), those matters are not important to our decision

here.

The Boy Scouts have been holding Jamborees since 1937,

long before this statute was passed. Throughout that

time, the U.S. military has supported the Jamboree by

loaning military equipment and by providing various

logistical and other services. It was not until 1972 that

Congress expressly sanctioned this practice by passing the

Jamboree statute. It did so because the military believes

that the Scouts provide unique opportunities for the

secular purposes of military recruitment and positive

public relations for the Armed Forces. In 2001, the Boy

Scout Jamboree drew more than 40,000 Scouts and leaders

to Fort A.P. Hill in Virginia, which has served as the

National Scout Jamboree’s permanent home since 1981.

The Jamboree statute is only one of several mechanisms

by which the BSA obtains or could obtain federal support

for the Jamboree. For example, 10 U.S.C. § 2667(a)

permits the leasing of real or personal military property to

private groups if such as arrangement would “promote the

national defense or be in the public interest.” Unlike the

Jamboree statute, 10 U.S.C. § 2667 does not mention the

BSA by name. Likewise, 10 U.S.C. § 2012 authorizes the
No. 05-3451 13

Secretary to allow the armed forces to provide support to

private groups if “the provision of such assistance is

incidental to military training.” 10 U.S.C. § 2012(a)(2).

That statute does name the BSA and 12 other organizations as eligible for assistance, and it permits the Secretary to expand the list on a “case-by-case basis.” 10 U.S.C.

§ 2012(e)(3).

These statutes, together with the Jamboree statute, do

not establish the kind of “classic” taxing and spending

program that the Court evaluated in Flast or Bowen, or

that this court considered in Laskowski. No governmental

office gives out any grants to the BSA or any other group

or institution, religious or otherwise. Much of the support

given is in the form of “loans.” Indeed, 10 U.S.C. § 2554(b)

requires the BSA to foot the bill for expenses related to the

“delivery, return, rehabilitation, or replacement” of the

loaned equipment, and the repeated refrain of § 2554(d) is

that various services must be provided “without expense”

to the United States. BSA must give bonds to ensure that

its bill is paid. See § 2554(c) (equipment) and (e) (transportation). The Secretary would like us to draw the standing

line here: if § 2554 does not authorize either a grant or

direct subsidy to the BSA, he argues, then the taxpayers

do not have standing.

Bowen, however, did not endorse this bright-line test. In

his brief before this court, the Secretary concedes that the

military spends a significant amount of money on the

Jamborees. None of that money is given directly to BSA.

Instead, it is all spent by the military to furnish services

in kind. Although, as the Secretary suggests, the government would be footing the bill for at least some of those

services by paying the soldiers’ salaries regardless of

what duties the soldiers are assigned, that does not change

the fact that the personnel assisting the Jamboree are

donating the value of their taxpayer-funded labor to the

BSA. (We doubt that the Secretary would make the same
14 No. 05-3451

argument if the soldiers in question were building a

swimming pool for the local base commander.) In addition,

the military hires temporary workers to perform

Jamboree-related services, and it purchases supplies

earmarked for the Jamboree.

The military spent $6 million on the 1997 Jamboree,

almost $8 million on the one in 2001, and—until the

district court’s injunction—it was scheduled to spend

another $7.3 million on the 2005 Jamboree. This averages

out to almost $2 million per year per Jamboree on expenses including the military’s transportation of its

personnel to Fort A.P. Hill, rental of commercial equipment such as trucks, and purchasing a range of disposable goods such as medical supplies and cookie dough.

That level of spending of federal tax dollars, while a tiny

fraction of the Pentagon’s budget, can hardly be called

incidental. (For Fiscal Year 2008, the President has

requested $481.4 billion in discretionary authority for the

Department of Defense. See http://www.dod.mil/comptroller/defbudget/fy2008/2008_Budget_Rollout_Release.pdf.) As

we have said, the fact that the support given to the BSA

is “in kind” rather than by cash or check cannot be the

dividing line. Building a church and providing all of its

supplies must be equally offensive to the Establishment

Clause as giving the church the money to do the construction and purchase of supplies itself. Election law provides

a good analogy: a candidate must disclose not only cash

contributions but also coordinated expenditures. The

reason is simple: money is fungible and the value of the

services rendered or supplies given to a candidate is equal

to that of the check that might have otherwise been

written by the donor. Cf. Shays v. Federal Election Com’n,

414 F.3d 76, 97-98 (D.C. Cir. 2005) (discussing the Federal

Election Campaign Act’s definitions of contributions

and coordinated expenditures and when under the

statute the latter are classified as the former).
No. 05-3451 15

More persuasively, the Secretary contends that Winkler

lacks standing because the Jamboree statute is not a

“taxing and spending” statute but rather is authorized by

Congress’s powers under the Property Clause, Art. IV, § 3,

cl. 2, and the Military Clauses, Art. I, § 8, cls. 12-14. The

military is, in other words, just regulating its own property

and manpower. Winkler responds that even if Congress

is exercising its authority under the Property and/or

Military Clauses in this statute, the statute also necessarily relies on the Taxing and Spending Clause, Art. I,

§ 8, cl. 1. He argues that taxpayers have standing to

challenge this statute because “[s]pending is the challenged conduct, and not just a means to accomplish the

challenged conduct.” To adopt Winkler’s position, however,

would be to abolish the line that the Supreme Court drew

between Valley Forge and Bowen, because exactly the

same thing could have been said about the surplus property program in Valley Forge. Indeed, it is hard to imagine

how Congress could exercise any of its constitutional

powers without some incidental use of the taxing and

spending power.

Congress usually does not indicate which of its manifold

powers it is exercising when it passes a particular piece of

legislation, and some pieces of legislation undoubtedly

rest on multiple constitutional clauses. The Jamboree

statute is a good example. It apparently relies, in part, on

the Property Clause, Art. IV, § 3, cl. 2; the Military

Clauses, Art. I, § 8, cls. 12-14; and even the Commerce

Clause, Art. I, § 8, cl. 3. (The Jamboree affects interstate

commerce by drawing thousands of travelers to the

Commonwealth of Virginia. In an amicus brief, a group of

Virginia politicians pointed out that BSA alone spent

$17 million in Virginia for the 2005 Jamboree, and individual scouts and other visitors to the Jamboree obviously

added much more to the total.)
16 No. 05-3451

The text of the Jamboree statute that we reproduced

earlier is also informative. Even assuming that it is correct to characterize the BSA as a “religious” organization,

this statute is for the purpose of assisting the military in

persuading a new generation to join its ranks and in

building good will. This is a secular and valid purpose. Cf.

Rumsfeld v. Forum for Academic and Institutional Rights,

Inc., 126 S.Ct. 1297 (2006) (upholding statute requiring

law schools to offer military recruiters same access to

campuses and students as most favored nonmilitary

recruiters had). Although some support of the organization

does occur, the statute does not turn money or services

over to BSA to handle any way it wants. Indeed, most of

the services the military furnishes are underwritten by

BSA, because Congress has insisted on revenue-neutrality

for the United States.

Despite the fact that § 2554(h) authorizes other departments to follow the military’s lead, it is first and foremost

a statute about the use, disposal, and provision of military

resources—including equipment, land, and soldiers. The

district court relied on the absence of recruiting or training as a purpose in the statute itself or the 1972 Senate report, see S.R. 92-631 (1972), reprinted in 1972

U.S.C.C.A.N. 2022, but it overlooked the fact that the 1972

report focused on the potential international ramifications

of supporting the Jamboree:

The theme of the 1971 Jamboree, For Understanding,

prevailed in all facets of jamboree activities. The 7,800

American scouts in attendance, identified by the stars

and stripes on their uniforms, received great applause

and admiration wherever they appeared. One of the

most significant results of the jamboree was the

fellowship and understanding for other peoples the Boy

Scouts of America obtained from their association with

the scouts of all nations. The international rapport

achieved made the equipment loaned and time spend

[sic] by the Department of Defense and other Govern-
No. 05-3451 17

ment agencies in coordinating the services to the

American contingent very worthwhile.

1972 U.S.C.C.A.N. at 2024.

Although Winkler questions whether the military is

investing its time and money wisely when it uses the

Jamboree to further its broader goals, that concern is far

removed from the Establishment Clause. Furthermore, a

court is poorly equipped to second-guess the military’s

own assessment of the benefits of the Jamboree. In a time

when the armed forces regularly spend significant funds

both for recruitment and public relations, Congress’s

decision to authorize them to take advantage of a built-in

audience of potential recruits is reasonably related to the

activities authorized by the Military Clauses. We are

satisfied that this purpose is apparent even in the legislation that was before the district court. Nonetheless, we

note for the sake of completeness that Congress took steps

to clarify its purpose in a later act. Pub.L. 109-148, Div. A,

Title VIII, § 8126(c)(1), Dec. 30, 2005, 119 Stat. 2729, reads

as follows:

(1) Findings.—Congress makes the following findings:

(A) Section 8 of article I of the Constitution of the

United States commits exclusively to Congress the

powers to raise and support armies, provide and

maintain a Navy, and make rules for the government

and regulation of the land and naval forces.

(B) Under those powers conferred by section 8 of

article I of the Constitution of the United States to

provide, support, and maintain the Armed Forces, it

lies within the discretion of Congress to provide

opportunities to train the Armed Forces.

(C) The primary purpose of the Armed Forces is to

defend our national security and prepare for combat

should the need arise.
18 No. 05-3451

(D) One of the most critical elements in defending the

Nation and preparing for combat is training in conditions that simulate the preparation, logistics, and

leadership required for defense and combat.

(E) Support for youth organization events simulates

the preparation, logistics, and leadership required for

defending our national security and preparing for

combat.

(F) For example, Boy Scouts of America’s National

Scout Jamboree is a unique training event for the

Armed Forces, as it requires the construction, maintenance, and disassembly of a ‘tent city’ capable of

supporting tens of thousands of people for a week or

longer. Camporees at the United States Military

Academy for Girl Scouts and Boy Scouts provide

similar training opportunities on a smaller scale.

This case is like the Third Circuit’s case, Americans

United for Separation of Church and State v. Reagan, 786

F.2d 194 (3d Cir. 1986), in which federal taxpayers challenged congressional actions funding the diplomatic

mission to the Vatican as a violation of the Establishment

Clause. In that case, the Third Circuit noted that the

expenditure at issue was not one “for which authority

is found only in article I, section 8, clause 1.” Id. at 199.

Instead, the actual bill challenged was a repeal of an 1867

law banning funding of a mission in Rome. The Third

Circuit noted that the power being exercised was not

that of appropriation, but that of “the conduct of foreign

affairs” and that the Supreme Court in Flast “by carefully

limiting taxpayer standing to challenges of expenditures

solely dependent upon the taxing and spending clause,

made clear that one’s status as a taxpayer did not confer

upon one standing to challenge the exercise of other

governmental powers . . . .” Id. See also Phelps v. Reagan,

812 F.2d 1293 (10th Cir. 1987) (following the Third

Circuit).
No. 05-3451 19

We reiterate finally that the activity Congress has

chosen to support—the Jamboree—is one that is open to

all, not just to members of BSA. We conclude, in light of

all these facts, that the Jamboree Statute is primarily an

exercise of Congress’s powers under the Military and, to

a lesser extent, Property Clauses. While the use of those

powers necessarily requires some incidental spending,

the statute is not the kind of “taxing and spending”

legislation identified in Flast as suitable for a taxpayer

challenge.

III

Because plaintiffs do not have standing to bring this

case, we REVERSE the judgment of the district court and

REMAND for dismissal of the action.

SYKES, Circuit Judge, concurring. I agree with the

majority’s conclusion that the plaintiff taxpayers lack

standing to challenge the Boy Scout Jamboree statute,

10 U.S.C. § 2554. I do not agree, however, with several

aspects of the majority’s standing analysis. My primary

objection is to the assertion, made by this court in Freedom

from Religion Found., Inc. v. Chao, 433 F.3d 989, 991 (7th

Cir. 2006), cert. granted sub nom. Hein v. Freedom from

Religion Found., Inc., 127 S. Ct. 722 (2006), and repeated

here, maj. op. at 3, 8, that taxpayer standing doctrine is

merely prudential; it is not. The Frothingham rule against

taxpayer suits enforces the standing requirements of
20 No. 05-3451

Article III’s case-or-controversy limitation on federal

judicial power, a fundamental feature in the Constitution’s

separation of powers. DaimlerChrysler Corp. v. Cuno, 126

S. Ct. 1854, 1861-63 (2006); Bowen v. Kendrick, 487 U.S.

589, 618-20 (1988); Valley Forge Christian Coll. v. Amns.

United for Separation of Church & State, Inc., 454 U.S.

464, 477-80 (1982); United States v. Richardson, 418 U.S.

166, 171-73 (1974); Schlesinger v. Reservists Comm. to Stop

the War, 418 U.S. 208, 215 (1974); Flast v. Cohen, 392 U.S.

83, 101-06 (1968); Doremus v. Bd. of Educ., 342 U.S. 429,

433-34 (1952); Frothingham v. Mellon, 262 U.S. 447, 486-

89 (1923).

Frothingham involved a taxpayer’s due process challenge

to the Maternity Act of 1921, which provided federal

funding to the states for maternal and infant health. The

Court held the taxpayer could not bring the claim, noting

that a “party who invokes the power [of judicial review]

must be able to show, not only that the statute is invalid,

but that he has sustained or is immediately in danger of

sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite

way in common with people generally.” Frothingham, 262

U.S. at 488. A taxpayer’s “interest in the moneys of the

treasury . . . is shared with millions of others, is comparatively minute and indeterminable, and the effect upon

future taxation, of any payment out of the funds, so

remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of

equity.” Id. at 487. The Court noted that if a single taxpayer may challenge a statute, “then every other taxpayer

may do the same, not only in respect of the statute here

under review, but also in respect of every other appropriation act and statute whose administration requires the

outlay of public money, and whose validity may be questioned.” Id. To entertain such a suit, the Court held, would

be “not to decide a judicial controversy, but to assume a
No. 05-3451 21

position of authority over the governmental acts of another and coequal department, an authority which plainly

we do not possess.” Id. at 489.

The Flast exception to the Frothingham rule—invoked by

the plaintiff taxpayers here—likewise addresses constitutional standing requirements in the context of Establishment Clause challenges to exercises of the congressional

taxing and spending power. Flast, 392 U.S. at 101-06. Any

question about the constitutional or prudential status of

the Supreme Court’s taxpayer standing doctrine was

resolved in Flast itself. Along the way to announcing a

narrow exception to the Frothingham bar against taxpayer standing, the Supreme Court in Flast undertook a

“fresh examination of the limitations upon standing to

sue in a federal court and the application of those limitations to taxpayer suits” and grounded its “fresh examination” in Article III. Id. at 94.

The Court said in Flast that the question whether

plaintiffs may sue in federal court solely in their capacity

as taxpayers “turns on whether they can demonstrate the

necessary stake as taxpayers in the outcome of the litigation to satisfy Article III requirements.” Id. at 102 (emphasis added). The Court held that “a taxpayer will have

standing consistent with Article III to invoke federal

judicial power when he alleges that congressional action

under the taxing and spending clause is in derogation of

those constitutional provisions which operate to restrict

the exercise of the taxing and spending power.” Id. at 105-

06 (emphasis added). Because “the Establishment Clause

of the First Amendment . . . specifically limit[s] the taxing

and spending power conferred by Art. I, § 8,” the Court

held that taxpayers will have standing to assert Establishment Clause challenges “only [to] exercises of congressional power under the taxing and spending clause.” Id. at

102, 105. The Flast plaintiffs sued to enjoin federal
22 No. 05-3451

appropriations made to religious schools pursuant to the

Elementary and Secondary Education Act of 1965; the

Court found a “logical nexus” between their status as

taxpayers and the claim that the Education Act was an

unconstitutional exercise of the taxing and spending

power in violation of the Establishment Clause and

permitted the claim to proceed. Id. at 102-03. But Flast left

the Frothingham rule in place: The Court said the case-orcontroversy requirements of Article III will not be satisfied

“where a taxpayer seeks to employ a federal court as a

forum in which to air his generalized grievances about the

conduct of government or the allocation of power in the

Federal System.” Id. at 106.

In Richardson, the Court observed that Flast had

clarified the question whether the Frothingham prohibition against taxpayer standing derived from the requirements of Article III or was merely a prudential policy

judgment. Richardson, 418 U.S. at 172-73. “When the

Court addressed the question of standing in Flast, Mr.

Chief Justice Warren traced what he described as the

‘confusion’ following Frothingham as to whether the Court

had announced a constitutional doctrine barring suits

by taxpayers challenging federal expenditures as unconstitutional or simply a policy rule of judicial self-restraint.”

Richardson, 418 U.S. at 172. The Richardson Court noted

that Chief Justice Warren’s “fresh examination” of standing doctrine in Flast led to a constitutional holding on the

question of taxpayer standing. Id. at 173 (“[T]he [Flast]

Court emphasized that Art. III requirements are the

threshold inquiry.”).

To the extent any ambiguity remained after Richardson,

Valley Forge surely cleared it up. There, as the majority

notes, the Court declined to expand Flast, holding that

taxpayers did not have standing to challenge a federal

agency’s decision to transfer an unused Army hospital to
No. 05-3451 23

Valley Forge Christian College. The Court reasoned that

the taxpayers’ claim did not fall within the narrow exception announced in Flast because they challenged an

executive—not congressional—action, and because the

authorizing legislation, the Federal Property and Administrative Services Act of 1949, was an exercise of the Property Clause power under Article IV, Section 3, Clause 2,

not an exercise of the taxing and spending power under

Article I, Section 8. Valley Forge, 454 U.S. at 479-80.

Valley Forge could not have been clearer about the

foundations of the Court’s taxpayer standing doctrine. The

Court held that although “[t]he term ‘standing’ subsumes

a blend of constitutional requirements and prudential

considerations,” the “irreducible minimum” of Article III

standing “requires the party who invokes the court’s

authority to show that he personally has suffered some

actual or threatened injury as a result of the putatively

illegal conduct of the defendant, . . . and that the injury

fairly can be traced to the challenged action and is likely

to be redressed by a favorable decision.” Id. at 471-72

(citations and quotations omitted). Quoting Frothingham,

the Court reaffirmed that taxpayers generally cannot

establish these minimums because “[a]ny tangible effect of

the challenged statute on the plaintiff’s tax burden [is]

‘remote, fluctuating and uncertain,’ ” and the asserted

injury is not distinct and particularized but instead is

shared “ ‘in common with people generally.’ ” Id. at 477

(quoting Frothingham, 262 U.S. at 487-88). Taxpayers

seeking to establish standing under Flast must assert

an injury from a specific congressional exercise of the

Article I, Section 8 taxing and spending power alleged to

be in violation of the Establishment Clause.

Recognizing Flast’s potential to impermissibly enlarge

the judicial role if extended beyond its terms, the Court

in Valley Forge cautioned that Flast should not be understood to have relaxed the injury-in-fact and redressability
24 No. 05-3451

requirements of constitutional standing in Establishment

Clause cases and insisted that the exception it created

be applied with “rigor.” Id. at 481, 488-90. Indeed, the

Court has strictly limited the reach of Flast, confining it to

Establishment Clause claims, see DaimlerChrysler, 126

S. Ct. at 1864, and actions to enjoin a direct disbursement

of public funds pursuant to a specific congressional

appropriation, see Bowen, 487 U.S. at 618 (“[W]e have

consistently adhered to Flast and the narrow exception

it created to the general rule against taxpayer standing

in Frothingham.”); see also Freedom from Religion, 433

F.3d at 998 (Ripple, J., dissenting) (Flast “survives as a

narrow exception to . . . [the] ban on generalized grievances”; expanding Flast to allow taxpayers to challenge an

executive branch activity conducted with general appropriation funds “cuts the concept of taxpayer standing loose

from its moorings.”); Laskowski v. Spellings, 443 F.3d 930,

939 (7th Cir. 2006) (Sykes, J., dissenting) (“The Supreme

Court has steadfastly refused to expand Flast and has

never recognized private party repayment to the Treasury

as an appropriate remedy for an Establishment Clause

violation in a suit based on taxpayer standing.”).

If the rule against taxpayer standing derives from the

requirements of Article III (and it does), its exception

cannot be mere prudential judicial policy:

[N]either the counsels of prudence nor the policies

implicit in the “case or controversy” requirement

should be mistaken for the rigorous Art. III requirements themselves. Satisfaction of the former cannot

substitute for a demonstration of “ ‘distinct and palpable injury’ . . . that is likely to be redressed if the

requested relief is granted.” That requirement states

a limitation on judicial power, not merely a factor to

be balanced in the weighing of so-called “prudential”

considerations.

Valley Forge, 454 U.S. at 475 (citations omitted).
No. 05-3451 25

Curiously, my colleagues cite but do not discuss the

Supreme Court’s most recent statement on taxpayer

standing, last term’s unanimous opinion in

DaimlerChrysler. There, the Court reaffirmed the

Frothingham bar against taxpayer standing and declined

to extend Flast to Commerce Clause claims.

DaimlerChrysler, 126 S. Ct. at 1864-65. Nothing in

DaimlerChrysler even remotely hints that the Court now

considers taxpayer standing doctrine to be rooted in

prudential policy considerations; to the contrary, the

Court’s opinion focused on the requirements of Article III

and the case-or-controversy limitation on federal judicial

power. Indeed, the Court referred to the Frothingham rule

as “the Article III prohibition on taxpayer suits.” Id.

at 1865.

So this court was simply wrong to assert in Freedom

from Religion that Frothingham and Flast “rested not on

Article III . . . but rather on what have come to be called

the ‘prudential’ principles of standing,” which “like

other common law principles, are protean and mutable.”

Freedom from Religion, 433 F.3d at 991-92. This

mischaracterization of taxpayer standing doctrine permitted the Freedom from Religion majority to avoid a

“rigorous” adherence to the limits of Flast, to dispense with

the requirement of a specific congressional disbursement

under the taxing and spending power, and to allow taxpayers to challenge a wholly executive-branch activity supported by general appropriations. Id. at 996-97. As Judge

Ripple noted in dissent, this was a “dramatic expansion of

current standing doctrine,” encompassing an activity of

government not at all like the congressional-grant programs at issue in Flast and Bowen—the only category of

taxpayer “injury” that the Supreme Court has recognized

as sufficient to allow a taxpayer Establishment Clause

claim to proceed. Id. at 997.
26 No. 05-3451

It is true that the logic of Flast is difficult to reconcile

with the basic requirements of Article III, see Freedom

from Religion Found., Inc. v. Chao, 447 F.3d 988, 988-90

(Flaum, C.J., concurring in denial of rehearing en banc)

(Easterbrook, J., concurring in denial of rehearing en

banc); as the majority notes, the Supreme Court granted

certiorari in Freedom from Religion and may bring greater

clarity to this area of justiciability law. But we are not

at liberty to recast a constitutional doctrine as a prudential one. We should not perpetuate the underlying doctrinal error of Freedom from Religion here.

Relatedly, I cannot agree with the majority’s assertion

that “no party” in Freedom from Religion “is asking the

Supreme Court to expand taxpayer standing.” Maj. op.

at 5 n.1. To the contrary, because Freedom from Religion

moved the boundaries of current taxpayer standing

doctrine, the plaintiffs there, in defending this court’s

decision, are necessarily asking the Supreme Court to

expand taxpayer standing.

The majority observes that the Jamboree statute,

together with the other statutory sources of the military’s

authority to lend property and provide logistical support

to the Jamboree, “do not establish the kind of ‘classic’

taxing and spending program that the Court evaluated in

Flast or Bowen.” Maj. op. at 13. I agree. But the same can

be said about the presidential conferences at issue in

Freedom from Religion. That case, like this one, challenges

executive branch activity supported by general appropriations.

The majority rejects the argument that taxpayers will

have standing under Flast only where the challenged

statute “authorize[s] either a grant or direct subsidy” of

the type at issue in Bowen and in Flast itself. Maj. op.

at 13. “[T]he fact that the support given to the BSA is ‘in

kind’ rather than by cash or check,” the majority states,
No. 05-3451 27

“cannot be the dividing line. Building a church and providing all of its supplies must be equally offensive to the

Establishment Clause as giving the church the money to

do the construction and purchase of supplies itself.” Id.

at 14. Yet the majority relies on this distinction to support the conclusion that the plaintiffs here do not have

standing: “Although some support of the organization does

occur, the [Jamboree] statute does not turn money or

services over to BSA to handle any way it wants.” Id. at 16.

Again, this logical tension may be inherent in Flast’s

exception to Frothingham’s rule, see Freedom from Religion, 447 F.3d at 990 (Easterbrook, J., concurring in denial

of rehearing en banc); the Supreme Court will provide

guidance soon.

In the meantime, the better course is to follow the

admonition in Valley Forge, apply the Flast exception to

the Frothingham rule with “rigor,” and limit Flast’s

reach to factually similar claims until the Supreme

Court tells us otherwise. That means no standing here, but

for a threshold reason rejected by the majority: because the

Jamboree statute does not establish a congressional grant

or direct appropriation program of the type at issue in

Flast and Bowen. It is, as the majority notes, a statute

about the military’s use and disposition of its land and

equipment, and the assignment, training, and recruitment

of soldiers. Maj. op. at 16. I fully agree with the majority’s

conclusion that the Jamboree statute rests primarily on

the Military Clauses, Article I, Section 8, Clauses 12-14,

and the Property Clause, Article IV, Section 3, Clause 2,

and for this (additional) reason, the case resembles Valley

Forge rather than Flast and Bowen.

I would also note that redressability is missing here. On

appeal, the plaintiffs have focused their arguments on

defending the district court’s decision on standing and its

injunction against the operation of the Jamboree statute.

The district court rejected the plaintiffs’ challenge to
28 No. 05-3451

certain other statutes authorizing the military to lend

property and provide logistical support to the Jamboree,

and they have apparently accepted that ruling. But the

fact that the military has other statutory authority to

assist the Jamboree, see 10 U.S.C. §§ 2012, 2667, maj. op.

at 12-13, and was doing so for thirty-five years prior to the

enactment of the Jamboree statute, undermines any

argument that the “injury” from the statute is redressable.

An injunction against § 2554 would not prevent the

military from opening Fort A.P. Hill to the Boy Scouts

and providing equipment and logistical support to the

Jamboree under statutory authority upheld by the district court and not at issue here.

This brings me to my final point. The district court held

that § 2554 violated the Establishment Clause and enjoined “the U.S. Secretary of Defense and his officers,

agents, servants, employees and attorneys . . . from

providing any aid to the Boy Scouts of America pursuant

to 10 U.S.C. § 2554, with the sole exception of aid provided

or to be provided in support of the 2005 Jamboree that will

take place from July 25 through August 3, 2005.” (Emphasis added.) This order was dated June 22, 2005, and it

notes that “[t]he injunction the plaintiffs are seeking

specifically excludes the upcoming 2005 Jamboree.”

Whether the plaintiffs’ forbearance in this regard was the

product of generosity, the spirit of compromise, or a desire

to avoid the public relations fallout that would have

attended their eleventh-hour scuttling of the 2005 Jamboree (if that’s what would have occurred), their conduct

undermines any claim that they were suffering a grave

constitutional injury. Constitutional litigation is legitimate

only where there is a real injury and a legal remedy

available to redress it. A willingness to postpone the

remedy suggests that the plaintiffs’ injury was not real but

only a legal fiction to get their Establishment Clause claim

before the court. But “Article III . . . is not merely a
No. 05-3451 29

troublesome hurdle to be overcome if possible so as to

reach the ‘merits’ of a lawsuit which a party desires to

have adjudicated; it is a part of the basic charter promulgated by the Framers.” Valley Forge, 454 U.S. at 476.

With these points of departure, I respectfully concur.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-4-07