## In the 

# United States Court of Appeals

For the Seventh Circuit

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Nos. 05-4604 & 05-4781

A NTHONYH INRICHS , H ENRYG ERNER, L YNETTE H EROLD , et al., Plaintiffs-Appellees

,
v

.

S PEAKER OF THE H OUSE OF
REPRESENTATIVES OF THE I NDIANAG ENERALA SSEMBLY, Defendant-Appellant

.

____________ Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division.
No. 05 C 813 —David F. Hamilton

, Judge.

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A RGUEDS EPTEMBER7, 2006—D ECIDEDO CTOBER 30, 2007

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Before RIPPLE , K ANNE and W OOD , Circuit Judges

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RIPPLE , Circuit Judge . Four Indiana taxpayers, Anthony Hinrichs, Henry Gerner, Lynette Herold and Francis White Quigley, brought this action against the Speaker of the House of Representatives of the Indiana General Assembly, challenging the House’s practice of opening each session with a prayer . The district court agreed with the plaintiffs that the pr actice of legislative prayer as implemented by the House vi olated the Establishment2 Nos. 05-4604 & 05-4781

Clause and issued a permanent injunction. The Speaker timely appealed and sought a stay of the district court’s ruling pending full briefing before this court. We denied the stay but noted that our de cision was based only on a preliminary understanding of the facts surrounding Indiana’s practice. See Hinrichs v. Bosma , 440 F.3d 393 (7thCir. 2006). After briefing, oral argument and supplemental briefing, we now hold that the plaintiffs do not have standing to maintain this action. We therefore
reverse the district court’ s judgment and remand the action with instructions to dismiss for want of jurisdiction.

I

BACKGROUND

A. Facts
Indiana’s legislative authority is vested in the Indiana General Assembly, which is co mposed of the Senate andthe House of Representatives. The House of Representatives meets in its chamber in the Indiana Statehouse,which has seating for the representatives and an observation gallery for about 75 to 100 members of the public.
House Rule 10.2 calls for a prayer or invocation to be given each meeting day before the House conducts any business. For the 188 years prior to the time the plaintiffs instituted this action, the Indiana House of Representatives opened each day with an invocation. The invocation occurs immediately after the Speaker’s call to order. No legislative business takes place until the prayer is finished, and no one is required to remain in the House chamberNos. 05-4604 & 05-4781 3

1 The parties stipulated that members of the public seated in the balcony are “discourage[d] from leaving the balcony during the Pledge of Allegiance or the Invocation so as to minimize noise. However, if any individual indicates that he or she objects to the prayer or Pledge or if the individual expresses a desire to leave immediately the individual will be allowed to leave freely.” R.17 at 1-2. during the prayer. 1 The invocation is delivered from the Speaker’s stand, and, according to House rules, no one may enter the Speaker’s stand wi thout invitation from the Speaker.
The invocation frequently is delivered by visiting clergy who have volunteered to pray and are nominated by a representative. On occasion, representatives have sponsored clergy who do not share their own religiousaffiliation. To nominate a member of the clergy, a representative fills out a “Minister ofthe Day” form setting forththe dates when the clergy member is available. The representative then submits the fo rm to the Majority Caucus Chair, who schedules the cleric to deliver the invocation. No minister who has requested sponsorship ever has
been turned down.
Prior to the date on which the visiting clergy member is to offer the invocation, a House staff member sends a letter setting forth the logistical details of the visit. The
letter also states:

The invocation is to be a sh ort prayer asking for guidance and help in the matters that come before the members. We ask that you strive for an ecumenical prayer as our members, staff and constituents come from different faith backgr ounds. Thank you for your
consideration.4 Nos. 05-4604 & 05-4781

2 An exception to this typical arrangement occurs when the Speaker has sponsored the cleric of the day.R.16, Att. 2. No further guidance is provided and no review of the content of the pray er is conducted prior to its being given; typically, the Speaker does not know the identity of the minister until a few minutes prior to his or
her introduction. 2

When a visiting clergy member has not been designated to give the prayer for a legislative session, a representativehas given the invocation. On such an occasion, the representative does not receive guidance from anyone associated with the House conc erning the form or content of the prayer. No one associat ed with the House ever has advised, corrected or admonish ed a minister or representative about the religious content of an invocation.
During the 2005 House session, the invocation wasdelivered by priests, Protestant ministers, several representatives, a rabbi and an imam. Of the forty-five prayers offered during this session for which text is available, twenty-nine prayers referenced “Jesus” or “Christ”; others invoked “God,” “Lord,” “Alm ighty God,” or “Heavenly
Father.” Id. Att. 6 at 3, 7 (prayers of January 10 and 13, 2005and February 17, 2005). At least one prayer was not addressed to a specific deity. See id. at 16-17 (prayer of April 14, 2005).

Several prayers were overtly Christian in content. For instance, one visiting cleric quoted several verses from a book of the New Testament as part of his prayer, see id. at 8 (prayer of Februa ry 28, 2005); st ill others referred to the “saving power of Jesus Christ,” id. at 13 (prayer of March 28, 2005), to “our lord and savior Jesus Christ,” id. at 14Nos. 05-4604 & 05-4781 5

(prayer of April 5, 2005), or to Jesus Christ as the son of God, id. at 16 (prayer of April 11, 2005). Many of these
references were limited to th e doxology at the end of the prayer. There also were invocations given that were not tied to any specific faith or denomination. For instance, the prayer offered on April 14, 2005, referenced Buddha, the Zen masters, a philosopher and a story from the Bible.
See id. at 16-17. Still others invoked only “God” or “Lord”and simply requested wisdom for the Assembly or blessings for the State. See, e.g.

, id. at 18 (prayer of April 19, 2005); id. at 14 (prayer of March 31, 2005). Some prayers were offered as the personal prayer of the clergy member,

see, e.g. , id. at 14-15 (prayer of April 5, 2005); others purported to be offered on behalf of those assembled, see, e.g. , id. at 17 (prayer of April 18, 2005).
Although minimal, there were costs associated with the practice of offering the invocation. The initial letter sent to clergy cost $.54 per ma iling. Before a sessioncommenced, the House members sometimes took photographs with the clergy scheduled to give the invocation. These photographs cost $.68 per print and were mailedat a cost of $1.60 per print. A thank-you letter sometimes was sent to visiting cl ergy, also at a cost of $.54 per mailing. Additionally, the sessions of the Indiana House are broadcast on the Internet at a cost of $112.85per hour, or $1.88 per minute; each prayer, whether offered by a member of the clergy or by a representative,
lasted a few minutes. All funds used to cover these costs came from the general budget; no funds were appropriated specifically to co ver these expenses.6 Nos. 05-4604 & 05-4781

3 Specifically, the district court decreed:
1. That defendant Speaker of the House of Representatives of the Indiana General Assembly, in his official capacity, is permanently enjoined from permitting sectarian prayers to be offered as part of the o fficial proceedings of the House of Representatives. If the Speaker chooses to continue to permit non-sectarian prayers as part of the o fficial proceed- (continued...) B. District Court Proceedings
On May 31, 2005, four Indiana taxpayers, Anthony Hinrichs, Henry Gerner, Lynette Herold and Francis White Quigley, brought this action for declaratory and injunctive relief challenging th e existing practice of the Indiana House of Representatives to allow sectarian prayers to be given prior to each legislative session. The Speaker of the House of Repr esentatives of the Indiana General Assembly was named as the defendant. In the complaint, the plaintiffs stated that they did not object to the practice of legislative prayer, but claimed that the practice of the Indiana Ho use of Representatives violated the First Amendment because it allowed overtly sectarian prayers to be offered. The Speaker answered the complaint and, among other matters, asserted lack of standing.

On October 28, 2005, the district court conducted a trial on stipulated facts and written submissions of the parties. On November 30, 2005, the district court entered a final order declaring the Speaker’s practice of allowing sectarian prayer to be violative of the Establishment Clause and permanently enjoining the Speaker from “permitting sectarian prayers to be offe red as part of the official proceedings of the House of Representatives.” R.31 at 1. 3Nos. 05-4604 & 05-4781 7

3 (...continued) ings, he shall advise all persons offering such prayers (a) that the prayers must be non-sectarian and must not be used to proselytize or advance any one faith or belief or to disparage any other faith or be lief, and (b) that the prayersshould not use Christ’s name or title or any other denominational appeal. This injunction applies to the Speaker, and to his agents, servants, employees, and attorneys, and all other persons in active concert with them who receive actual notice of this injunction by personal service or otherwise.

R.31 at 1-2. The district court first addr essed the Speaker’s contention that the plaintiffs lacked standing to bring this action. In the district court’s view, the plaintiffs had established taxpayer standing under the Supreme Court’s and this
court’s case law. It stated:
In this case the House’s prayer practice is indeed paid for by taxpayer funds, through confirmation and thank-you letters and photographs sent to clergy, and additional web-streaming time. Though these costs are not directly attributable to the content of the invocations, they are directly attributable to the practice of legislative prayerthat plaintiffs challenge. Because the plaintiffs are Indiana taxpayers whohave proven “a measurable appropriation or disbursement of [public] funds occasi oned solely by the activities complained of,” Doremus [ v. Board of Education ], 342 U.S. [429,] 434 [(1952)], all four plaintiffs havestanding under Article III to challenge the constitutionality of the official legislative prayers.

R.30 at 24. The district court th en turned to the question of the constitutionality of the House’s “Minister of the Day”8 Nos. 05-4604 & 05-4781

program. It summarized its findings of fact and conclusions of law accordingly:

[T]he evidence shows that th e official prayers offeredto open sessions of the Indiana House of Representatives repeatedly and consis tently advance the beliefs
that define the Christian re ligion: the resurrection and divinity of Jesus of Nazareth. The Establishment Clause “means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preferen ce for Christianity overother religions). ‘The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.’ ” County of Allegheny v. American Civil Liberties Union , 492 U.S. 573, 605 (1989), quoting Larson v. Valente , 456 U.S. 228, 244 (1982). The sectarian content of the substantial majority of official pray ers in the Indiana House therefore takes the prayers outside the safe harbor the Supreme Court recognized fo r inclusive, non-sectarian legislative prayers in Marsh v. Chambers , 463 U.S. 783 (1983). Plaintiffs have standing as Indiana taxpayers to bring their claims, and they are entitled to declaratory and injunctive relief. This relief will not prohibit the House from opening its session with prayers if it chooses to do so, but will require that any officialprayers be inclusive and non-sectarian, and not advance one particular religion.

R.30 at 2.
After the court’s injunction issued, the Speaker filed a motion pursuant to Federal Rule of Civil Procedure 59(e).The Speaker claimed that the court’s injunction “manifest[ed] clear legal error beca use it exceed[ed] the Court’s jurisdiction in taxpayer-sta nding cases” and “because itNos. 05-4604 & 05-4781 9

4 This order rendered moot the Speaker’s motion to stay. [wa]s overly broad and d[id] not conform to the conduct challenged or the relief requested by the Plaintiffs.” R.33 at 1. Additionally, the Spea ker maintained that “the injunction [wa]s vague and [gav e] the Speaker of the House
no clear standard for application.” Id . The Speaker also filed a motion to stay the enforcement of the injunction pending the district court’s disposition of his Rule 59 motion. The plaintiffs opposed both motions.
On December 28, 2005, the court issued an order denying the Speaker’s Rule 59 motion. 4In its order, the district court first rejected the Speaker’s argument “that thecourt should give him the choice between either (a) modifying the prayer practice to bring it within constitutional bounds, or (b) eliminating the public spending but continuing the unconstitutional pattern of sectarian Christian prayers.” R.47 at 3. The district court stated:

To describe the alternatives is to answer the question. The taxpayer plaintiffs have standing because of the public expenditures, but the law authorizes the court to order an end to the unconstitutional practice. The injury that gives the taxpayer-plaintiffs standing is the misuse of the public funds into which they pay
their taxes.
In taxpayer standing cases, the injury to the plaintiff may be remedied by enjoining the expenditure of public funds, but may also be remedied by enjoining the unconstitutional practice, especially where theconstitutional issues do not depend on the expenditure of public funds.

Id. at 3-4 (citations omitted).10 Nos. 05-4604 & 05-4781

The district court then turned to the Speaker’s challenges to the terms of the injunction. The district court disagreed with the Speaker that the injunction should have been limited to opening prayers:
The plaintiffs challenged the House’s practice of official prayers conducted under House Rule 10, which calls for a prayer after the Speaker calls the House to order and before the Pledge of Allegiance. As noted, plaintiffs showed that the practice of inviting clergy
or House members to offer the prayer has produced a pattern of sectarian and exclusionary Christian prayers. If the court had limited the injunction to prayers offered pursuant to House Rule 10 as it currently exists, the injunction would not have affected, for example,
an amended rule that would switch the order of the Pledge of Allegiance and the prayer, or a practice of sectarian prayer at the end of each session instead of the beginning.

Id. at 7-8.
Finally, the district court a ddressed the Speaker’s contention that “the injunction is t oo vague to give him fair notice of what he is required to do to comply with it.” Id. at 9. Although the district court believed that the “injunction here [wa]s sufficiently specific,” it nevertheless answered some of the Speaker’s questions “because of the larger public interests at stake.” Id. at 10. The court explained that “[t]he injunction is not limited to sectarian Christian prayers”; this simply was the focus of the court’s decision because “the evidence here shows a pattern of Christian prayer.” Id. at 12. The court also elaborated on whatwould constitute prayers that “are sectarian in the Christian tradition,” specifically those that “proclaim or otherwise communicate the beliefs that Jesus of NazarethNos. 05-4604 & 05-4781 11

5 As noted by our dissenting colleague, a pecuniary interest is not the only means of establishing standing. Seedissent at 43-44.
In the context of an alleged Establishment Clause violation, we have stated that “allegations ofdirect and unwelcome exposure to a religious message” are sufficient to show the injury-in-fact necessary to support standing. Doe v. County of Montgomery, Ill.

, 41 F.3d 1156, 1159 (7th Cir. 1994); see also ACLU v. City of St.
Charles , 794 F.2d 265, 268-69 (7th Cir. 1986). The plaintiffs (continued...) was the Christ, the Messiah, the Son of God, or the Savior,or that he was resurrected, or that he will return on Judgment Day or is otherwise divine.” Id. at 16. With that clarification, the court denied the motion to alter or amend the judgment.
The Speaker timely appealed to this court.

II

DISCUSSION

Before we turn to the substantive claims, we first must address the “threshold jurisdic tional question” of whether the plaintiffs possess the requisite standing to pursue this

action. Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 102 (1998). The party “asserting federal jurisdiction” must “carry the burden of estab lishing [its] standing under
Article III.” DaimlerChrysler Corp. v. Cuno , 126 S. Ct. 1854, 1861 (2006).

When we first approached this issue on the Speaker’smotion to stay, we noted that, in order to establish taxpayer standing—the only basis for standing asserted
here 5—the plaintiffs “must demonstrate that the challenged12 Nos. 05-4604 & 05-4781

5 (...continued) initially asserted both standing as taxpayers and, with respect to Mr. Hinrichs, standing as in dividual subject to “direct and unwelcome exposure” to the House prayers as a result of his job as a lobbyist. The plaint iffs, however, abandoned this alternative basis for standing in the district court when Mr. Hinrichs ceased being a lobbyist and informed the court that “he ha[d] no plans to lobbyfor any organization or entity in the Indiana General Assembly .” R. 29 at 1. Thereafter, the plaintiffs relied exclusively on their status as taxpayers to support standing. Consequently, in order to maintain their action, the plaintiffs must meet the requirements for taxpayer standing set forth below. program is supported by moni es raised through taxes and
that the use of those monies exceeds a specific constitutional limitation on the use ofpublic funds, such as the First Amendment’s prohibitio n on laws respecting an establishment of religion.” Hinrichs , 440 F.3d at 396. Since briefing in this case was completed, the Supreme Court
handed down its decision in Hein v. Freedom from Religion Foundation, Inc. , 127 S. Ct. 2553 (2007), in which the Court offered significant guid ance concerning the breadth of its taxpayer standing jurisprudence. We invited theparties to submit supplemental briefs discussing the impact of Hein on the plaintiffs’ standing in this case.
In light of Hein , the Speaker reasserts that the plaintiffs lack standing here. According to the Speaker, the Supreme
Court made clear in DaimlerChrsyler Corp. v. Cuno , 126 S. Ct. 1854, 1863 (2006), that the taxpayer standing requirements for federal taxpayers apply with equal force to state taxpayers. Accordingly, Hein directly applies to this action and “forecloses taxpayer standing in this case because the Plaintiffs have not identified—and cannot identify—anyNos. 05-4604 & 05-4781 13

specific legislative appropriations that ‘expressly authorize,
direct or even mention the expenditures of which [the plaintiffs] complain.’ ” Appellant ’s Supp. Br. at 5. For their part, the plaintiffs maintain that Hein did nothing to disturb the holding of Flast v. Cohen , 392 U.S. 83 (1968), or
of Doremus v. Board of Education , 342 U.S. 429, 434-45 (1952), which, unlike Flast , dealt explicitly with the question of state taxpayer standi ng. According to the plaintiffs, all that

Doremus and Flast require of state taxpayers is a “goodfaith pocketbook” injury, that is, “a financial interest that is, or is threatened to be, injured by the unconstitutional
conduct.” Doremus , 342 U.S. at 434-35; seeAppellees’ Supp.
Br. at 4.
Upon consideration of th e Court’s disposition in Hein

, and the parties’ supplemental arguments, we believe
that Hein requires us to revisit our preliminary determination that the plaintiffs possess the requisite standing to maintain this action. In order to explain our determination, a more plenary discussion of taxpayer standing, especially taxpayer st anding to challenge alleged Establishment Clause violations, is in order.

A. Taxpayer St anding Prior to Flast v. Cohen
Our discussion must begin with the Supreme Court’s initial pronouncements on ta xpayer standing set forth in Frothingham v. Mellon , decided with Massachusetts v.
Mellon , 262 U.S. 447 (1923). In that case, the plaintiffs, as federal taxpayers, challenged the constitutionality of the Maternity Act on the ground s that the appropriations authorized by the Act were “f or purposes not national, but local to the states,” and the effect of the statute was to take the plaintiffs’ property, namely their tax dollars,14 Nos. 05-4604 & 05-4781

without due process of law. Id. at 479-81. The Court determined that the interests of a federal taxpayer were not sufficiently direct or certain to support a general challenge to a congressional appropriations statute: “His interest in the moneys of the Treasury—partly realized from taxation and partly from other sources—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 a fforded for an appeal to the preventive powers of a court of equity.” Id. at 487. The Court explained that passing onthe constitutionality of a statute, absent a plaintiff who has suffered a direct and concrete injury as a result of a congressional enactment, would result in a violation of the separation of powers:
We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for so me direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. . . . The party who invokes the power must be able to show, not only that the statute is invalid, but that he has sustained or is immediatelyin danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffersin some indefinite way in common with people generally. If a case for preventive relief be presented the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding. Here the parties plaintiff have no such case. Looking through forms of words to the substance ofNos. 05-4604 & 05-4781 15

their complaint, it is merelythat officials of the executive department of the government are executing and will execute an act of Congre ss asserted to be unconstitutional; and this we are asked to prevent. To do so would be, not to decide a judicial controversy, but toassume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess.

Id. at 488-89.
In articulating the rationale for denying standing to federal taxpayers, the Court noted that the interest of federal taxpayers with respect to the federal treasury were “very different” from that of a municipal taxpayer challenging an allegedly illegal use of municipal funds:
The interest of a taxpayer of a municipality in the application of its moneys is direct and immediate and the remedy by injunction to prevent their misuse is not inappropriate. . . . The reasons which support the extension of the equitable remedy to a single taxpayer in such cases are based upon the peculiar relation of the corporate taxpayer to the corporation, which isnot without some resemblance to that subsisting between stockholder and private corporation.

Id. at 486-87.
The Court next addressed taxpayer standing in Doremus

. There, state taxpayers challe nged a New Jersey statute requiring the recitation of five verses of the Old Testament at the beginning of each sch ool day; the activity was not “supported by any separate tax or paid for from any particular appropriation,” nor did “it add[] any sum
whatever to the cost of conducting school.” Doremus , 342
U.S. at 433.16 Nos. 05-4604 & 05-4781

In deciding whether the ta xpayers could pursue their challenge, the Court first re iterated its statements from prior cases that “the interests of a [federal taxpayer] in the moneys of the federal treasury are too indeterminable, remote, uncertain and indirectto furnish a basis for an appeal to the preventive powers of the Court over their manner of expenditure.” Id. at 433. The Court went on to
observe that what it had said “of a federal statute” was “equally true when a state Ac t [wa]s assailed: ‘The party who invokes the power 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 a result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.’ ” Id. at 434 (quoting Frothingham , 262 U.S. at 488). The Court then held that the case or controversy requirement is met by a state taxpayer only when the taxpayer brings “a good-fa ith pocketbook action.” Id. It is a question, the Court stated, “o f possession of the requisite financial interest that is, or is threatened to be, injured by
the unconstitutional conduct.” Id. at 435. Finding this financial interest lacking, th e Court held that the state taxpayers could not maintain their challenge to the statute.

B. Flast v. Cohen

In Flast , the Court considered whether there were any exceptions to the bar agains t taxpayer standing erected

in Frothingham . Specifically, the Court had to decide
“whether the Frothingham barrier should be lowered when a taxpayer attacks a federal st atute on the ground that it
violates the Establishment and Free Exercise Clauses of the
First Amendment.” Id. at 85. At issue in Flastwas the constitutionality of the Elementary and Secondary Educa-Nos. 05-4604 & 05-4781 17

tion Act of 1965, Pub. L. No. 89- 10, 79 Stat. 27 (codified at 20 U.S.C. § 241a et seq. ( 1964)), which, among other matters, “appropriated [funds] . . . to finance instruction in reading, arithmetic, and other subjects in religious schools, and to purchase textbooks and other instructional
materials for use in such schools.” Id. at 85-86.
In addressing the standing issue, the Court first turned to its holding in Frothingham . In that case, the Court recounted, it had
noted that a federal taxpayer’s “interest in the moneysof the treasury . . . is comparatively minute and indeterminable” and that “the effect upon future taxation, of any payment out of the (T reasury’s) funds, . . . (is) remote, fluctuating and uncertain.” As a result, the Court ruled that the taxpayer had failed to allege the type of “direct injury” nece ssary to confer standing.

Id. at 92 (quoting Frothingham , 262 U.S. at 487-88). The Court then observed that its opinion in Frothingham had engendered some confusion concerning the legal and philosophical bases for standing . This confusion, the Court continued, suggested that it“should undertake a fresh
examination of the limitations upon standing to sue in a federal court and the applicat ion of those limitations to taxpayer suits.” Id. at 94.
The Court, however, did not turn immediately to the concept of standing, but fi rst examined the limitations placed on federal courts by th e case or controversy requirement of Article III. Justic iability, the Court explained, was not merely prudential, but firmly rooted in Article III:
[T]he implicit policies embodied in Article III, and not history alone, impose the ru le against advisory opinions on federal courts. When the federal judicial power18 Nos. 05-4604 & 05-4781

is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III.

Id. at 96. However, the Court al so acknowledged that “[t]he ‘many subtle pressures’ whic h cause policy considerations
to blend into the constitution al limitations of Article III make the justiciability doctrine one of uncertain and shifting contours.” Id. at 97 (footnote omitted).

The Court also noted that, as “an aspect of justiciability,” “standing is surrounded by the same complexities and vagaries that inhere in justiciability.” Id. at 98. However, “[d]espite the complexities and uncertainties,” the Court continued,
some meaningful form can be given to the jurisdictional
limitations placed on federal court power by the concept of standing.
The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a
federal court and not on the issues he wishes to have adjudicated. The “gist of the question of standing” is whether the party seeking relief has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues uponwhich the court so largely depends for illumination of difficult constitutional questions.”

Id. at 99 (quoting Baker v. Carr , 369 U.S. 186, 204 (1962)) (emphasis added). This requirement of a “proper party” was necessary so that “federalcourts w[ould] not be askedNos. 05-4604 & 05-4781 19

to decide ‘ill-defined controversies over constitutional issues,’ ” or cases which were “hypothetical” or “abstract.”
Flast , 392 U.S. at 100 (quoting United Pub. Workers v.
Mitchell , 330 U.S. 75, 90 (1947), and Aetna Life Ins. Co. v.
Haworth , 300 U.S. 227, 240 (1937), respectively). TheCourt then summarized the relationship between standing and Article III jurisdiction:

Thus, in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. Itis for that reason that the emphasis in standing problems is on whether the party invoking federal court jurisdiction has “a personal stake in the outcome of the controversy,” and whether the dispute touches upon “the legal relations of parties having adverse legal interests.”

Id. at 101 (quoting Baker, 369 U.S. at 204, and Aetna Life Ins.
Co. , 300 U.S. at 240-41, respectively).
This requirement did not eliminate the possibility that a federal taxpayer may have “the requisite personal stakein the outcome” of a particular case necessary to establish standing. Flast , 392 U.S. at 101. Indeed, the Court stated that the requisite stak e could be established under the following circumstances:
The nexus demanded of federal taxpayers has two aspects to it. 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 unconstitu tionality only of exercises of congressional power under the taxing and spend-20 Nos. 05-4604 & 05-4781

ing clause of Art. I, § 8, of the Constitution. It will not be sufficient to allege an incidental expenditure oftax funds in the administration of an essentially regulatory statute. This requ irement is consistent with the limitation imposed uponstate-taxpayer standing
in federal courts in Doremus v. Board of Education , 342 U.S. 429 (1952). Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under thisrequirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon th e exercise of the congressional taxing and spendingpower and not simply thatthe enactment is generally beyond the powers delegated to Congress by Art. I, § 8. When both nexusesare established, the litigant will have shown a taxpayer’s stake in the outcom e of the controversy and will be a proper and appropriate party to invoke a federal court’s jurisdiction.

Id. at 102-03.
Turning then to the specific plaintiffs in the case, the
Court held that each nexus had been established. With respect to the first nexus, the taxpayers’ challenge was made to an exercise of Congress’ taxing and spending power under Article I, Section 8 of the United States Constitution. With respect to the second nexus, the Court noted that the taxpayers alleged that the challenged expenditures violated the Establishment Clause, which operated as a specific limit ation on Congress’ spending power: “Our history vividly illustrates that one of the specific evils feared by th ose who drafted the Establishment Clause and fought for it s adoption was that the taxing and spending power woul d be used to favor oneNos. 05-4604 & 05-4781 21

religion over another or to support religion in general.” Id.
at 103.
The Court then summarized its holding accordingly:
[W]e hold that a taxpayerwill 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 th e taxing and spending power. The taxpayer’s allegation in such cases would be thathis tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power. Such an injury is appropriate for judicial redress, and the taxpayer has established the necessary nexus between his status and the nature of the allegedly unconstitutional action to support his clai m of standing to secure judicial review. Under such circumstances, we feel confident that the questions will be framed with thenecessary specificity, that the issues will be contested with the necessary adverseness and that the litigation will be pursued with the necessary vigor to assure that the constitutional challenge will be made in a form traditionallythought to be capable of judicial resolution.

Id. at 105-06.

C. Standing Cases after Flast
Over the next few years, litigants tested Flast ’s boundaries by attempting to use taxpayer standing to challenge different kinds of federal governmental actions. For22 Nos. 05-4604 & 05-4781

6 In Doremus v. Board of Education , 342 U.S. 429 (1952), the Court
stated:
[W]e reiterate what the Court said of a federal statute as equally true when a state Act is assailed: “The party who invokes the power must be able to show, not only that thestatute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as a re- (continued...) instance, in Valley Forge Christian College v. Americans United for Separation of Church and State , 454 U.S. 464 (1982), plaintiffs sought to challenge as violative of the Establishment Clause the transfer of federal property by the Department of Health, Education and Welfare to a sectarian institution. The Court, howeve r, held that the plaintiffs lacked standing to maintain their action because “ Flast limited taxpayer standing to challenges directed ‘only [at] exercises of congressional power’ ” under the Taxing and Spending Power. Valley Forge , 454 U.S. at 479 (quoting Flast

, 392 U.S. at 102). Similarly, in United States v. Richardson , 418 U.S. 166 (1973), the Court held that a taxpayer did not have standing to pursue his action which sought a detailed accounting of expenditures by the Central Intelligence Agency. According to the Court, the taxpayer had not tied his status as a taxpayer to th e “taxing or spending power,” nor had he claimed that appropriated funds were being spent in violation of a specific constitutional limitation on that power. Id. at 175.
The Court has been equally unwilling to see Flastas a means of extending statetaxpayer standing. As noted above, the Court previo usly had suggested in Doremus that
the limitations on federal ta xpayer standing were equally applicable to state taxpayer s challenging state actions. 6TheNos. 05-4604 & 05-4781 23

6 (...continued) sult of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.”

Id. at 434 (quoting Frothingham v. Mellon , decided with Massachusetts v. Mellon , 262 U.S. 447, 488 (1923)).

7 Neither the district court, nor this court in considering the motion for stay, had the benefit of this decision. Court again focused on the question of state taxpayer standing in Cuno

. 7In Cuno , state taxpay ers sought to challenge actions by the city of Toledo and the State of Ohio to encourage the manufa cture of Jeeps in the Toledo area, specifically through o ffering local and state tax benefits for new investment. The taxpayers alleged that the granting of tax credits under these circumstances violated the Commerce Clause. Without addressing the parties’ standing, the Sixth Circuit reached the merits of the plaintiffs’ claims and held that the tax credit wasinvalid. The Supreme Court granted review, but requested that the parties also “address whether [the] plaintiffs have standing to challenge the franchise tax credit in this litigation.” Id. at 1860.
In its opinion, the Court noted that it was asked to decide“an important question of constitutional law concerning the Commerce Clause.” Id. at 1861. Before it turned to that question, however, it had to determine whether the“plaintiffs, as the parties now asserting federal jurisdiction, [had] carr[ied] the burden of establishing their standing under Article III.” Id. (internal citations omitted).
In addressing the standing issue, the Court reviewed the roots of its taxpayer standing jurisprudence in Frothingham :24 Nos. 05-4604 & 05-4781

In rejecting a claim that improper federal appropriations would “increase the burden of future taxation and thereby take [the plaint iff’s] property without due process of law,” the Court observed that a federal 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 1862 (quoting Frothingham , 262 U.S. at 486-87). The Court then noted that the “rationale for rejecting federal taxpayer standing applies with undiminished force to state taxpayers.” Cuno , 126 S. Ct. at 1863. The application of the principle to the states was indicated, the Court stated, in Doremus : In that case, we noted our earlier holdings that “the interests of a taxpayer in the moneys of the federal treasury are too indeterminable, remote, uncertain and indirect” to support stan ding to challenge “their manner of expenditure.” We then “reiterate[d]” what we had said in rejecting a federal taxpayer challenge to a federal statute “as equa lly true when a state Act is assailed: ‘The [taxpayer] must be able to show . . .
that he has sustained . . . some direct injury . . . and notmerely that he suffers in some indefinite way in common with people generally.’ ”

Id. (quoting Doremus , 342 U.S. at 433-34).

Indeed, the Court noted that failure to extend the bar against general taxpayer st anding to state taxpayers challenging appropriations ma de by state statutes could
raise serious federalism issues:Nos. 05-4604 & 05-4781 25

Federal courts may not assume a particular exercise of
this state fiscal discretionin establishing standing; a party seeking federal ju risdiction cannot rely on such “[s]peculative inferences . . . to connect [his] injury to the challenged actions of [the defendant],”
Simon [ v. Eastern Kentucky Welfare Rights Org. ], 426 U.S. [26, 45 (1976)] . . . . Indeed, because state budgetsfrequently contain an array of tax and spending provisions, any number of which may be challenged on a variety of bases, affording state taxpayers standing to press such challenges simply because their tax burden gives them an interest in the state treasury would interpose the federal courts as “ ’virtually continuing monitors of the wisdom and soundness’ ” of state fiscal administration, contrary to th e more modest
role Article III envisions for federal courts. See[ Allen v. Wright , 468 U.S. 737, 760-61 ( 1984)] (quoting Laird v.

Tatum , 408 U.S. 1, 15 (1972)).

Cuno , 126 S. Ct. at 1864.

Thus, the Court concluded, “we hold that state taxpayers have no standing under Article III to challenge state tax or spending decisions simply by virtue of their status as taxpayers.” Id. at 1864. Finally, the Court rejected the plaintiffs’ attempts to analogize their challenge under
the Commerce Clause to the Establishment Clause violation alleged in Flast . The Court believed that the broad application of Flasturged by the plaintiffs “would be quite at odds with its narrow application in our precedent and Flast ’s own promise that it would not transform federal courts into forums for taxpayers’ ‘generalized grievances.’ ” Id. at 1865 (quoting Flast , 392 U.S. at 106).26 Nos. 05-4604 & 05-4781

D. Hein v. Freedom from Religion Foundation
It is against this jurisp rudential framework that we must view the Supreme Court’s decision in Hein and consider its application to the present case. In Hein , federal taxpayers challenged part of the President’s Faith Based and Community Initiatives program as violative of the First Amendment’s Establishment Clause. The plaintiffs maintained that they possessed taxpayer standing to challenge the program because funds from the federal treasury, specifically “gener al Executive Branch appropriations,” Hein , 127 S. Ct. at 2559, were used to fund the initiative. A divided panel of this court determined that the plaintiffs had shown the necessary injury under
Flast , and its progeny, to establish taxpayer standing. Specifically, the majority held that:

The difference, then, between this case on the one hand
and Flastand [ Bowen v. ] Kendrick [, 487 U.S. 589 (1988),]
on the other is that the ex penditures in those caseswere 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-bran ch departments without strings attached. The diffe rence cannot be controlling.
Freedom from Religion Found., Inc. v. Chao , 433 F.3d 989, 994 (7th Cir. 2006). The Supreme Court disagreed. After reiterating the test for taxp ayer standing set forth in Flast

, see Flast , 392 U.S. at 102-03, the plurality determined thatthe difference between a specific congressional enactment authorizing the expendit ure of funds and an expenditure made from general funds appropriated to the Executive Branch was a critical one: The necessary link between “congressional action and co nstitutional violation thatNos. 05-4604 & 05-4781 27

supported taxpayerstanding in Flast[wa]s missing.” Hein

, 127 S. Ct. at 2566. The plurality explained that the
[r]espondents do not challenge any specific congressional action or appropriation; nor do they ask the Court to invalidate any congression al enactment or legislatively created program as unconstitutional. That is because the expenditures at issue here were not made pursuant to any Act of Congress. Rather, Congress provided general appropri ations to the ExecutiveBranch to fund its day-to-day activities. These appropriations did not expressly authorize, direct, or even mention the expenditures of which respondentscomplain. Those expenditures resulted from executive discretion, not congressional action.

Id. at 2566 (footnote omitted). Consequently, the plurality
concluded that “this case fa lls outside the ‘narrow exception’ that Flast‘created to the general rule against taxpayer standing established in Frothingham .’ ” Id . at 2568 (quoting
Kendrick, 487 U.S. at 618). “Because the expenditures that respondents challenge were not expressly authorized or mandated by any specific co ngressional enactment,” the Justices in the plurality explained, “respondents’ lawsuit is not directed at an exercise of congressional power, and thus lacks the requisite ‘log ical nexus’ between taxpayer status ‘and the type of legislative enactment attacked.’ ”
Hein , 127 S. Ct. at 2568 (quoting Flast , 392 U.S. at 102) (additional citations omitted).

E. Application

We believe that there are several guiding principles to take away from the cases we just have discussed. First, the general rule, articulated first in Frothingham and reiterated28 Nos. 05-4604 & 05-4781

most recently in Hein , is that federal taxpayers may not lodge constitutional challeng es against congressional appropriations. The exception to the general rule set forth

in Frothingham is a narrow one: Indeed, the exception only applies when the taxpayer has established a “logicallink between [his taxpayer] status and the type of legislative enactment attacked” as well as “a nexus between thatstatus and the precise nature of the constitutional infringement alleged.” Flast , 392 U.S. at 102-03. Second, the nexusbetween the plaintiff’s taxpayer status and the legislative enactment must be a direct one. The plurality of
the Court made clear in Hein that only “expenditures made pursuant to an express co ngressional mandate and a specific congressional appropriation” met the first nexus requirement; the plurality rejected the plaintiffs’ claim that any “expenditure of go vernment funds in violation
of the Establishment Clause” would meet this requirement.
See Hein , 127 S. Ct. at 2565 (internal quotation marks omitted). In the context of an alleged Establishment Clause violation, the nexus requirement is not met absent “the very ‘extract[ion] and spen[din g]’ of ‘tax money’ in aid of religion.” Cuno , 126 S. Ct. at 1865 (quoting Flast , 392 U.S. at 106). Finally, state taxpay ers are held to the same standing requirements as fe deral taxpayers. They must establish the requisite nexus between their status and the challenged enactment in order to meet the test articulated

in Flast . Anything less “would interpose the federal courts as ‘ “virtually continuing monitors of the wisdom and soundness” ’ of state fiscal administration, contrary to the
more modest role Article III envisions for federal courts.”
Cuno , 126 S. Ct. at 1864 (quoting Allen , 468 U.S. at 760-61). With these principles in mind, we turn to the standing claim made by the plaintiffs.Nos. 05-4604 & 05-4781 29

In the present case, the plaintiffs are challenging the practice of legislative prayer as implemented by the Indiana House of Representati ves. It is clear from the parties’ stipulations that Indi ana’s practice consists of a “Minister of the Day” program that involves the offeringof a prayer by a member of the clergy with representatives filling in to offer the invocation only when “no cleric [is] present.” R.16 at 3. The program, as it is presently administered, is not mandated by statute. The origin of the practice is House Rule 10.2, and that rule merelyprovides that a prayer or invocation be given each meeting day before the House conducts any business. The manner in which the program is currently administeredis a matter of House tradition, implemented at the discretion of the Speaker. Although there is some minimal amount of funds expended in the administration of the program, the plaintiffs have not pointed to any specific appropriation of funds by th e legislature to implementthe program. Furthermore, other than the costs of webcasting, the only costs incurr ed are postage for the sending of thank-you letters and pictures. These costs not only are unrelated to the co ntent of the prayers offered,they are unnecessary for the administration of the “Minister of the Day” program.
Under these circumstances, we simply cannot conclude that the nexus requirements of Flast , as explained in
Hein , have been met. The plaintiffs have not tied theirstatus as taxpayers to the House’s allegedly unconstitutional practice of regularly offering a sectarian prayer. They have not shown that the legislature has extracted fromthem tax dollars for the establishment and implementation of a program that violates the Establishment Clause. The appropriations, which cover the incidental costs of the program, “did not expressly authorize, direct, or even30 Nos. 05-4604 & 05-4781

8 The dissent asserts that the requisite connection between the allegedly unconstitutional practice and the expenditure of
funds is established by the initial adoption of House Rule 10.2in conjunction with the House’s later action in passing a budget, which included appropriations for the general operations of the House. We do not believe these two actions satisfy the requirement, set forth in Hein , that the challenged expenditures be “expressly authorized or mandated” by a “specific congressional enactment.” Hein v. Freedom from Religion Foundation

, Inc ., 127 S. Ct. 2553, 2568 (2007); see also id. at 2566 (finding the requisite nexus missing because “[t]hese appropriations did not expressly authorize, direct , or even mention the expenditures of which respondents complain”). The plaintiffs do not challenge Rule 10.2; indeed, they acknowledge the constitutionality of some form of legislative prayer. Instead, it is the present practice of employing a minister of the day, and the resulting sectarian prayers, that the plai ntiffs seek to enjoin. However, as demonstrated above, there is no specific appropriation
either for Rule 10.2 or for the Minister of the Day program. Absent such an appropriation, the necessary link between the taxpayer and the expenditure for the allegedly unconstitutional practice has not been established. mention the expenditures,” Hein , 127 S. Ct. at 2566, attendant to the “Minister of the Day” program. Instead, the plaintiffs allege only an “ ’expenditure of government funds in violation of the Establishment Clause,’ ” which the Court explicitly reje cted as inadequate in Hein. Id. at 2565 (internal citations omitted). 8

Despite the lack of specific direction by the state legislature to establish the Minister of the Day program and the lack of specific appropriations dedicated to the program, the plaintiffs maintain that Hein does not require this court to reconsider the prelim inary conclusion of the stay panel that the plaintiffs possessed standing to maintain thisNos. 05-4604 & 05-4781 31

9 The plaintiffs al so argue that “this Cour t has also consistently acknowledged that Flastgives a taxpayer standing to challenge any type of state or local ‘tax dollar expenditures that allegedly (continued...) action. The plaintiffs note that the Supreme Court in Hein did not disturb its holding in Flast : “We do not extend Flast

, but we also do not overrule it. We leave Flastas we found
it.” Id. at 2571-72. Because this cour t’s initial determination
was based on Flast(and case law interpreting Flast ), the plaintiffs urge that Hein leaves undisturbed the stay panel’s standing determinatio n. We cannot agree.
Although the Supreme Court’s plurality characterized its opinion as effecting no change in its view of the law of taxpayer standing, the plurality’s decision, especially
when read with Cuno , clarified significantly the law of taxpayer standing for the lo wer federal courts. For instance, our treatment of taxpayer standing at the time we addressed the Speaker’s motion for stay articulated a
more malleable vision of Flastthan the one articulated by the plurality in Hein . In our earlier treatment, we stated: “Both parties accept that, in order to have standing as ataxpayer, a person must demonstrate that the challenged program is supported by monies raised through
taxes and that the use of th ose monies exceeds a specific
constitutional limitation on the use of public funds, such as the First Amendment’s prohibit ion on laws respecting an establishment of religion.” Hinrichs , 440 F.3d at 396. Hein

, however, explains that the “use” of funds for the allegedly unconstitutional program, without more, is not sufficient to meet the nexus required by Flast . Instead, it is theappropriation of those funds for the allegedly unconstitutional purpose that provid es the link between taxpayer and expenditure necessary to support standing. 932 Nos. 05-4604 & 05-4781

9 (...continued)
contribute to Establishm ent Clause violations. Flast v. Cohen .’ ” Appellees’ Supp. Br. at 5 (quoting Gonzales v. North Township of Lake County, Indiana , 4 F.3d 1412, 1416 (7th Cir. 1993)). However, as the plaintiffs acknowledge, the case on which they rest this proposition, Gonzales , concerns the standing of municipal taxpayers to challenge municipal expenditures. As already noted, since its first pronouncements on taxpayer standing, theSupreme Court has distinguished between the standing requirements for federal and state taxpayers, on the one hand, and municipal taxpayers on the other. With one exception, the other cases from this circuit which are cited by the plaintiffs fall into one of two categories: (1) state taxpayer challenges to specific state legislative appropriations (which would meet the
standards under DaimlerChrysler Corp. v. Cuno , 126 S. Ct. 1854 (2006), and Hein v. Freedom from Religion Foundation, Inc. , 127 S. Ct. 2553 (2007)), and (2) municipal taxpayer challenges tomunicipal actions (which are not subject to the same stringent standing requirements as state and federal taxpayers seeking to challenge state and federal actions, respectively).

The one case that warrants further comment is Van Zandt v. Thompson , 839 F.2d 1215 (7th Cir. 1988). In Van Zandt , the Illinois House of Representatives passed a resolution “which provided for the conversion of a hearing room in the Illinois State Capitol Building . . . into a prayer room.” Id. at 1216. The resolution “contemplate[d] that private donations w[ould] be raised to cover the cost of renovating and maintaining the
room.” Id. at 1217. On appeal, our discussion of standing was brief:
The district court held and neither of the parties has disputed that Van Zandt has standing to sue since he is an Illinois taxpayer and since the proposed prayer room would arguably place economic burdens of various sorts on the State of Illinois and its taxpayers. Van Zandt v. Thompson

, (continued...)Nos. 05-4604 & 05-4781 33

9 (...continued) 649 F.Supp. 583, 587 (N.D. Ill. 1986) (citing Marsh v. Chambers, 463 U.S. 783, 786 n.4 (1983)). Sim ilarly, the district court held that the “Freedom from Religion Foundation, Inc.,” a Wisconsin not-for-profit corporation, has associational standing as a representative of its members who are Illinois taxpayers. Id. at 588 n.4. These dete rminations appear to be correct and have not been challenged by any of the parties. We therefore accept them.

Id. (parallel citations omitted). After Cuno and Hein , such amorphous burdens on state taxpayers would not meet Flast ’s narrow exception to taxpayer standing. Indeed, the resolution at issue did not authorize any expenditure of funds, nor did it contemplate the use of any state taxes for the renovation and maintenance of the room. Consequently, the district court’s
assessment that the room woul d “place economic burdens of various sorts” on the state taxpayers was merely speculative and could not support the concrete injury to the plaintiffs as taxpayers necessary to support standing.

We are well aware of the time and energy that the parties and the district court have expended on the merits of this matter. However, “[i]f a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in th e course of doing so.” Cuno , 126 S.
Ct. at 1860-61.

Conclusion
For the foregoing reasons, we reverse the district court’s judgment, and we remand the case to the district court with instructions to dismiss for want of jurisdiction. The Speaker may recover his costs in this court.

REVERSEDand REMANDED

WITHI NSTRUCTIONS34 Nos. 05-4604 & 05-4781

W OOD , Circuit Judge , dissenting. One of the crowning achievements of the American Experiment has been the relative harmony in which people of differing religious beliefs have joined together to create a common civil society. A glance around the rest of the world today offers a sad reminder that many other countries have not been so lucky. Religious strife between Jews and Muslims is a principal component of the longstanding hostility between Israelis and Palestinians; violence
between the Sunni and the Shi’a sects of Islam has taken a bloody toll in Iraq in recent years; Northern Ireland was torn by violence between Protestants and Catholics
for decades. The most rece nt International Religious Freedom Report issued by the Bureau of Democracy, Human Rights and Labor of the U.S. Department of State (“2007 Religious Freedom Report ”) identifies five major categories of abuse of the ri ght to religious freedom, some blatant, some subtle, but all extant in some parts of the world. 2007 Religious Freedom Report, Executive Summary ¶ 4, available at http://www.state.gov/g/drl/rls/ irf/2007/90080.htm (last visited Oct. 1, 2007). The report goes on to single out (1) totalitarian and authoritarian regimes that seek to control religious thought and expression; (2) states that displa y hostility toward minority or non-approved religions; (3) st ates that fail to address
either societal discriminationor societal abuses against religious groups; (4) states that enact discriminatory legislation or implement policies that favor majority religions and disadvantage minority religions; and (5) states that otherwise respec t religious freedom, but that discriminate against certain religions by identifying them as dangerous cults or sects. Id. ¶¶ 5-9. Although we do have our religious differences in the United States, they are far outnumbered by our understanding of commonal-Nos. 05-4604 & 05-4781 35

ity. In no small part, this a ccomplishment is a result of the
delicate balance drawn in th e First Amendment to the Constitution between the protec tion of each person’s right freely to exercise his or he r religion and the prohibition against the establishment of a state religion.
Another characteristic of which Americans are rightly proud is the tradition of individualism, not in the sense of selfishness, but in the sense of each citizen’s willingness
to shoulder whatever burdens need to be assumed and to take responsibility for hersel f, her family, her community, and the greater world around her. Americans classicallydo not sit back and wait for someone else to solve a problem. This may help to expl ain why the tradition of the private attorney general arose in the United States and continues to be such an impo rtant part of American public law. It may also help to explain why there has always been a healthy skepticism about “government.” Those entrusted with governmental power might exceed their mandate, which is why, as James Madison explained in
Federalist No. 51 (among other places), the Framers of the Constitution chose a system of mutual checks and balances.
The Federalist No. 51 (James Madison) (Gideon ed. 2001).Speaking about the dangers from an unchecked Legislative Branch in Federalist No. 48 , Madison noted that in Pennsylvania “it appear[ed] that the constitution had been flagrantly violated by the legislature in a variety of important instances.” Id. No. 48, at 259 (James Madison). Madison’s concern that “[i]f a majority be united by acommon interest, the rights of the minority will be insecure,” id . No. 51, at 270, is well known. Madison himself thought that this problem would largely be solved by shifting coalitions of interest groups. With the rise of political parties, however, co alitions have not shifted as36 Nos. 05-4604 & 05-4781

fluidly inside legislative bodies as the Framers may have thought they would. An alternative check, which was also built into the Constitution, has supplemented the Madisonian idea—the use of the Judicial Branch to rein in unconstitutional actions byeither the Legislative Branch
or the Executive Branch.
As the Supreme Court has stressed, the Judicial Branch can perform this function only when the person seeking to invoke the aid of the courts has presented a “Case orControversy” in the sense that Article III of the Constitution uses that phrase. One aspect of this Article III command is that the plaintiff musthave “standing to sue.” Put negatively, standing is lacking when “even though theclaim may be correct the litigant advancing it is not properly situated to be entitled to its judicial determination.” 13 Charles A. Wright, Arthur R. Miller, Edward H. Cooper,
Federal Practice & Procedure§ 3531 at 338-39 (2d ed. 1984). As this court recently noted in Winkler v. Gates , 481 F.3d 977 (7th Cir. 2007), “there are three elements of Article III standing: injury in fact, a causal connection between theinjury and the defendant’s conduct, and likely redressability through a favorable decision.” Id. at 979, citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61 (1992). The question in the case before us is whether the plaintiffs are entitled to a judicial determination of the questionwhether certain rules and practices of Indiana’s legislature—rules that they assert injure them in their capacity as state taxpayers—violate the Establishment Clause of the First Amendment. My colleagues, relying on the plurality opinion by Justice Alito in the case of Hein v. Freedom From Religion Foundation , 127 S.Ct. 2533 (2007), conclude that the answer is no. In my view, they are overlooking crucial points of the rationale expressed in the plurality opinion,Nos. 05-4604 & 05-4781 37

as well as the fact that seven Justices out of nine still
consider Flast v. Cohen , 392 U.S. 83 (1968), to be good law. As I explain below, the differences between our case and Freedom From Religion put ours squarely within the confines (narrow though they may be) of the standing doctrine recognized in Flast . I would find that the plaintiffs here have standing to sue and would proceed to the merits of
the case.

I
This case, as the majority has explained, concerns the use of chaplains in Indiana’s House of Representatives (“the House”). The House uses a sy stem of rotating chaplains, rather than a single official who is appointed to serve in that capacity for a stated term. (For a discussion of the difference between the two types, see Jeremy G. Mallory, Comment, “An Officer of the House Which Chooses Him, and Nothing More”: How Should Marsh v Chambers Apply to Rotating Chaplains? , 73 U. Chi. L. Rev. 1421, 1426-30 (2006).) In the interest of avoiding any dispute about the way in which the chaplain of the Indiana House functions, I take
most of the discussion that follows from the brief filed on behalf of the Speaker of th e House before this court. The Speaker begins by noting that the legislative authority in Indiana is vested in the General Assembly, which is a bicameral body consisting of the Senate and the House. Ind. Const. art. IV, § 1. The House has 100 members; those members elect a Speaker, who has authority over the House. Ind. Const. art. IV, § 10; Ind. Code § 2-2.1-1-7; Rules of the House of Representatives (“the Rules”), Part III.B 19- 20 and Part I. The Speaker pr esides over the House from the Speaker’s stand at the front of the House; under38 Nos. 05-4604 & 05-4781

the Rules, no person may enter the Speaker’s stand without the Speaker’s invitation.

Part II of the Rules outlines the conduct of business before the House; it includes such matters as the time of convening, deadlines, quorum , and votes necessary for action. Rule 10 spells out the usual order of business. In pertinent part, it reads as follows:
10.1 Calling the House to order

10.2 Prayer
10.3 Pledge of Allegiance

10.4 Roll call
At that point, assuming that a quorum is present, the day’s business gets underway, with reports from committees,
introduction of resolutions an d bills, and other matters. See Rules 10.4-10.8. The focus in this case is on Rule 10.2, which calls for a prayer. The Speaker explains that the prayer is generally offered bya religious cleric who has been invited to the House for that purpose; if no cleric is present, a Representative will offer a prayer instead. The Speaker authorizes the clerics or Representatives to ascend to the Speaker’s stan d to pronounce the prayer. Invocations of this type have been offered in the House for 188 years. (Indiana became the 21st state on December 3, 1818; presumably the Speaker means to say that there has never been a time since statehood when such prayers were not offered. See http:// www.statelib.lib.in.us/www/ ihb/publications/tlstatehood .html (last visited Sept. 25, 2007).)
The invited clerics are chosen by Representatives, who complete a “Minister of the Day” form indicating when the person is available to serve. Once the form is received,Nos. 05-4604 & 05-4781 39

the actual date is scheduled. After a cleric is selected to offer the prayer, he or she will receive a brief form letter. Apart from passing along logistical details, the letter offers the following guidance:

The invocation is to be a sh ort prayer asking for guidance and help in the matters that come before the members. We ask that you strive for an ecumenical prayer as our members, st aff and constituents come from different faith backgrounds. Thank you for your
consideration.
As the majority notes, the legislature has authorized and appropriated specific revenues to support the prayer.The amounts are tiny, compared to the size of Indiana’s recent annual budget of some $25 billion in expenditures. See http://www.in.gov/sba/budget/ 2007_budget/ as_passed/pdfs (last visited Sept. 25, 2007). The form lettercost at the time $0.54 per mailing; photographs are provided at public expense at a cost of $0.68 each; and the photographs along with a thank- you letter are sent to the cleric afterward at a cost of about $1.60 per mailing, for a total of $2.82 in direct costs. The sessions of the House are
broadcast over the Internet at a cost of $112.85 an hour, or$1.88 a minute; this too is paid for by tax revenues. Assuming that a typical invocation is about 3 minutes in length, another $5.64 per legislative day might be attributed to this practice, for a total expenditure of $8.46 per prayer.
During the 2005 legislative session transcripts were prepared for 45 out of the 53 prayers that were offered. Theperson giving the prayer, and his or her religious affiliation, was identified for all 53 days. On 41 of those days,the prayer was offered by a cleric or other person identified with a Christian denomination; one prayer was offered by a rabbi, one by an imam, one by a lay person,40 Nos. 05-4604 & 05-4781

and nine by legislators. In 29 out of the 45 invocations for which transcripts are ava ilable, the person explicitly offered the prayer in the name of Jesus, Christ, the Savior, or the Son (sometim es using more than one of those words). In a small number, the officiant notes that he or she is praying personally in the name of Jesus or Christ, but in the majority, the officiant states or implies that the prayer is offered in Jesus’s name by everyone assembled. The record is filled with examples, of which I offer only a few. On February 28, 2005, Rev. Radersdorf opened his prayer by saying, among other things, “Whatever you do in word or deed , do all in the name of Lord Jesus, giving thanks through Him to God the Father.” On April 5, 2005, Rev. Brown first expressed thanks to the Father “for our Lord and Savior Jesus Christ,” and then, at the Speaker’s invitation, returned to the Speaker’s stand after the Pledge and sang “Just a Little Talk with Jesus,” while some legislators stood, clapped, and sang along, and others walked out of the House in protest. On April 29, 2005, Rev. Descesario said “As a minister of the gospel, I exercise my right to declare this room a hallowed place. I invite into this room , into the proceedings of the day, into the decisions that will [sic] made today, to each person, the mighty Holy Spiritof God. Holy Spirit, give
these here the mind of Christ . . . . I ask this in the name of Jesus Christ.”
These were the practices to which the plaintiffs, all Indiana taxpayers, objected. They filed the present suit, claiming that the Indiana legislature was appropriating and spending monies to su pport religion and sectarian prayer, and that this practice violated the Establishment
Clause. The district court fo und that they had standing to sue, under Flast v. Cohen , and that the particular prayers the Speaker was permitting crossed the lineNos. 05-4604 & 05-4781 41

between permissible invocation and prohibited religious practice first established in Marsh v. Chambers , 463 U.S. 783 (1983). It issued an injunction, and the defendants appealedunder 28 U.S.C. § 1292(a)(1). My colleagues have concluded that this lawsuit must be cut off at the threshold issue of standing. While I do not agree with them on this point, before turning to that qu estion I wish to highlight the implications (or lackthereof) of their decision. Nothing in the majority opinion should be understood as a ruling one way or the other on the merits of the House’s procedures. Should someone come along who meets the majority’s concept of standing, the ques tion whether the House may sponsor prayers at State expe nse urging everyone in the chamber to adhere to Christianity, or edicts declaring the room a “hallowed place,” or musical exhortations, revivalstyle, to “talk with Je sus,” is an open one.

II
As I noted earlier, the Supreme Court has recognized 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. Lujan , 504 U.S. at 560-61. Whether the restrictions on taxpayer standing derive from one or more of these basic Article III constraints or if they stem from a rule of self-restraint has been unclear, see Winkler, 481 F.3d at 980 (majority opinion); id. at 988 (Sykes, J., dissenting). Because no one Justice spoke for a ma jority of the Supreme Court

in Freedom From Religion , the question may still be debatable. Nonetheless, both because it is fair to assume that Justices Scalia and Thomas would agree with the three for whom Justice Alito wrote, and because Justice Alito relied squarely on Article III in his rejection of taxpayer42 Nos. 05-4604 & 05-4781

standing in that case, I assume for the sake of argument that we are dealing with a restriction on standing that is grounded in the Constitution.
Although it is a bit anachronistic to superimpose the Lujan analysis on earlier taxpayer standing cases, it is nonetheless useful for purposes of understanding how
those decisions contribute to the modern law of standing. When one looks at all of the cases in this line, up to and including Freedom From Religion , it appears that the crucial element that is lacking in unsuccessful taxpayer suits is injury-in-fact. The Supreme Court’s language in Frothingham v. Mellon , 262 U.S. 447 ( 1923), which turned away a taxpayer’s effort to challenge the Maternity Act of 1921 as beyond Congress’s Article I powers and an affront to the states’ Tenth Amendment reserved powers, is typical. There the Court wrote that the interest of a single taxpayer
in the moneys of the Trea sury—partly realized from taxation and partly from other sources—is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the fu nds, so remote, fluctuating and uncertain, that no basi s is afforded for an appeal to the preventive powers of a court of equity.

Id. at 487. Such an attenuated injury led inexorably to the unavailability of any useful remedy in Frothingham itself.

In Flast , the Court took a closer look at why taxpayer standing had been rejected in Frothingham. It concluded that the taxpayer in the latter case “lacked standing
because her constitutional attack was not based on an allegation that Congress, in enacting the Maternity Act of 1921, had breached a specific limitation upon its taxingNos. 05-4604 & 05-4781 43

and spending power.” 392 U.S. at 105. In essence, the Court continued, she was trying “to assert the States’ interest in their legislative prerogatives and not a federal taxpayer’s interest in being free of taxing and spending in contravention of specific constitutional limitations imposed upon Congress’ taxing and spending power.” Id. The Establishment Clause, it then held, is such a specific limitation on the taxing and spending power, and taxpayers have “a clear stake” in assuring that Congress does not
breach those limits. Id. The injury-in-fact that the taxpayer suffers is not the fact that he or she must pay taxes; it is the fact that those taxes are being “extracted and spent in violation of specific constitutional protections against such abuses of legislative power.” So characterized, the injury is both caused by the constitutional violation and it is eminently redressable: all the court needs to do is to enjoin the unconstitutional expenditure, and then leave it to the legislature to decide whether to use the money in other, constitutional, ways or to reduce taxes.
Although some might objectto the vagueness of this injury—Justice Scalia, for one, made exactly that argument

in Freedom From Religion , see 127 S.Ct. at 2573, 2575-77—the Court has recognized injuries no more specific than this in other contexts. Thus, for example, in Sierra Club v.

Morton , 405 U.S. 727 (1 972), the Court held that users of Sequoia National Park would have had standing to challenge the construction of an elaborate ski resort, based only on the aesthetic injury they would suffer from theadverse effects on the scenery, natural and historic objects, and wildlife of the park. 405 U.S. at 734-35. Similarly,

in Heckler v. Mathews , 465 U.S. 728 (1984), the Court held that regardless of whether a plaintiff might recover tangible monetary relief from a suit challenging unconstitu-44 Nos. 05-4604 & 05-4781

tional discrimination, “discr imination by itself, by perpetuating archaic and stereotypic notions or by stigmatizing members of the disfavored groups as innately inferior and therefore less worthy pa rticipants in the political community . . . can cause serious noneconomic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.”
Id. at 739-40 (internal quotations and citations omitted). Further, in Lujan itself, the injury complained of was an increased “rate of extinction of endangered and threatened species.” Lujan , 504 U.S. at 563. The shortcoming in that case was that the plaintiffs did not show how it affected them directly, even, as the concurrence by Justice Kennedypointed out, through something as minimal as the detriment of buying plane tickets to see the disappearing
animals. Id. at 579 (Kennedy, J., co ncurring); see also Japan Whaling Assn. v. American Cetacean Society, 478 U.S. 221, 231 n.4 (1986) (“Respondents . . . undoubtedly havealleged a sufficient ‘injury in fact’ in that the whale watching and studying of their members will be adversely affected by continue d whale harvesting.”).
The Establishment Clause uniquely involves this sort of psychic, aesthetic, or intangible injury. The injury involved is never physical and only rarely (with the prominent exception of taxpayercases, it so happens) even monetary. Instead, in cases where the Court has not balked at accepting standing, the plaintiffs claim more intangible injuries such as: having a predominantly religious purpose in arranging art in a particular way, see McCreary County v. American Civil Liberties Union of Ky.

, 545 U.S. 844, 881 (2005); passing a monument along one’s path to work, see Van Orden v. Perry, 545 U.S. 677, 694 (2005) (Thomas, J., concurring) (reaching the merits of theNos. 05-4604 & 05-4781 45

Establishment Clause injury; not questioning standing); or sending a message of endorsement or disapproval of religion, see Lynch v. Donnelly, 465 U.S. 668, 687-88 ( 1984) (O’Connor, J., concurring). Were they attached to another clause in the Constitution, these harms conceivably might be too amorphous for the courts to find standing; in the Establishment Clause context, however, standing was clear. See, e.g. , DaimlerChrysler Corp. v. Cuno , 126 S.Ct. 1854, 1859 (2006) (Commerce Clause); Valley Forge v. Americans United for the Separation of Church and State, Inc., et al. , 454 U.S. 464, 466 (1982) (art. IV, § 3, cl. 2); Frothingham v. Mellon , 262 U.S. 447 (1923) (amends. V and X). Indeed, viewed against the backdrop of other injuri es in Establishment Clausecases, the plaintiffs here have shown more concrete damage than most: they have en umerated, with some degree of accuracy, the value of the “three pence” they pay to support the practices of which they complain. See DaimlerChrysler, 126 S.Ct. at 1864, quoting from Flast , 392 U.S. at 102, which in turn was quoting 2 Writings of James Madison 186 (G. Hunt ed. 1901). This harm is more concrete than injuries arising from a Ten Commandments display, a holiday creche, or a graduati on prayer, all of which are staples of Establishment Clause jurisprudence. By the standards set in other Establishment Clause cases, anybody who has heard one of these prayers (in person or on the web) should be able to claim standing at least to have her claim heard, whether or not it eventually succeeds. See
American Civil Liberties Union v. St. Charles , 794 F.2d 265, 274-75 (7th Cir. 1986) (arguing that Establishment Clause standing would exist when a citizen saw a $20 creche or had to alter her path on the sidewalk, but not when she read about the creche in the newspaper). Potential injury to the plaintiffs before us—in their role as constituents, which they necessarily are if theyare taxpayers—is even ex-46 Nos. 05-4604 & 05-4781

pressly considered and warned against in the letter sent toMinisters of the Day, asking that they “strive to be ecumenical”; the caution is presum ably there to avoid inadvertently excluding or offending a constituent from a “different faith background.” Categorizing this foreseen, concrete harm as an “amorphous burden” that does not give rise to a cognizable case or controversy, see anteat 30 n.7, gives insufficient weight to the nature of the harm inherent in all
Establishment Clause cases.
In evaluating the case before us, it is not necessary to review all of the cases dealing with taxpayer standing to challenge either Establishment Clause violations or
other constitutional violations . It is enough to take a
closer look at Freedom From Religion and to note carefully what the plurality did and did not hold there. Before doing so, I note one point of agreement between the majority and me: the principles announced in Freedom From Religion with respect to federal taxpayers apply with equal force to the state taxpayers be fore us in the present case. The Supreme Court so held in DaimlerChrysler, 126 S.Ct. at 1863, which was a case in which state taxpayers claimed
that certain tax benefits afford ed by Ohio law violated the
Commerce Clause. The Court co ncluded that it could not reach the substantive Commerce Clause issue, because the state taxpayers lacked standing to sue in federal court. In so holding, however, the Court distinguished between the Establishment Clause challenge that Flast permitted and the Commerce Clause challenge the plaintiffs were trying to press: “Whatever rights plaintiffs have under the Commerce Clause, they are fundamentally unlike the right not to ‘contribute three pence . . . for the support of any one [religious] establishment.’ ” Id. at 1864, quoting from Flast , 392 U.S. at 102, in turn quoting 2 Writings of James Madison 186.Nos. 05-4604 & 05-4781 47

I have been discussing Justice Alito’s plurality opinion reversing the court of appeals, as does the majority, because it was he who expressed the middle ground on the Court. Unlike Justices Sc alia and Thomas, who thought
that the time had come to overrule Flast , Justice Alito, joined by the Chief Justice and Justice Kennedy, was not prepared to go so far

. The plurality found such a move unnecessary, because in their view the taxpayers before them did not satisfy Flast ’s narrow exception to the normal Frothingham rule against taxpayer standing. Justice Souter, writing for himself and the other three dissenters, noted
the Court in DaimlerChryslerhad recently reaffirmed that the “ ’ “injury” alleged in Establishment Clause challenges to federal spending’ is ‘the very “extract[ion] and spend[ing]” of “tax money” in aid of religion.’ ” 127 S.Ct. at 2584-85, quoting DaimlerChrysler, 126 S.Ct. at 1865. The reason why the Alito plur ality thought that the Flastrule did not apply to the plaintiffs in Freedom From Religionwas simple: the plaintiffs were not challenging legislative actions; instead, they were attacking Executive Branch expenditures in supportof religion (in particular, the White House Office of Faith-Based and Community Initiatives within the Executive Office of the President,
and related Executive Center s in other federal agencies and departments). While the dissenters took the plurality to task for that distinction, arguing that the Judicial Branchhas no reason to distinguish between actions of the Executive Branch and those of the Legislative Branch, theirs was not the prevailing voice.
The plurality opinion contains numerous references to the importance of the fact that “[t]he expenditures at issue

in Flastwere made pursuant to an express congressional mandate and a specific congressional appropriation.” 12748 Nos. 05-4604 & 05-4781

S.Ct. at 2565. In the case befo re the Court, in contrast, “[r]espondents [did] not cha llenge any specific congressional action or appropriation; nor [did] they ask the Court to invalidate any congressionalenactment or legislatively created program as unconstitutional.” Id. at 2566. Allowing taxpayers to challenge gene ral Executive programs on an “as applied” basis would, the plurality feared, stretch the nexus between the status as taxpayer and the program beyond the breaking point. Ju stice Alito continued, “[i]t cannot be that every legal challenge to a discretionary Executive Branch action implicates the constitutionality of the underlying congressional appropriation.” Id. at 2567- 68. He concluded this part of the opinion as follows:
Because the expenditures that respondents challenge were not expressly authoriz ed or mandated by any specific congressional enactment, respondents’ lawsuit is not directed at an exercise of congressional power,

see Valley Forge , 454 U.S. at 479, and thus lacks the requisite “logical nexus” be tween taxpayer status “and the type of legislative enactment attacked.” Flast , 392
U.S. at 102.

Id. at 2568. Finally, Justice Alit o rejected the “parade of horribles” that respondents fe ared would occur if discretionary Executive Branch expe nditures were outside the reach of taxpayer litigation. “In the unlikely event that any of these [overtly religio us] actions did take place, Congress could quickly step in.” Id. at 2571.

III
Given the fact that taxpayer standing, after Freedom From Religion , turns on whether the plaintiffs are claiming that a “legislatively created program” is unconstitutionalNos. 05-4604 & 05-4781 49

because it violates the Establishment Clause, we must look more specifically at wh at our plaintiffs are attempting to challenge to see whethe r this suit may go forward to an adjudication on the meri ts. What we find is a challenge to a legislativechaplaincy, created by a House Ruleenacted by Indiana’s House of Representatives and administered by the Speaker. The Indiana House and Senate both enact their rules pursuant to Ind. Const. art. IV, § 10 (“ Each House, when assembled, shall choose its own officers,
the President of the Senate excepted; judge the elections, qualifications, and returns of its own members; determine its rules of proceeding, and sit upon its own adjournment. But neither House shall, without the consent of the other, adjourn for more than three days, nor to any place other than that in which it may be sitting.”) (emphasis added). There does not appear to be any additional specific enabling act pursuant to which the rules are adopted at the beginning of each session. This seems close to the practice of the U.S. Senate, which maintains standing rules rather than readopting them at the beginning of each session. See Sen. Rule V.2 (“The rules of the Senate shall continue from one Congress to the ne xt Congress . . . .”).

Under Freedom From Religion , it is necessary to situate these rules, and House Rule 10.2 in particular, somewhere in the broader scheme of Indiana’s government. In the final analysis they necessarily must be legislative acts, executive acts, or something sufficiently like one of those two that we can proceed with the standing analysis. (Theycertainly are not judicial in nature, which is why I disregard that possibility.) This is not the usual question that comes up, in the administrative law context, with respect to legislative rules. Instead, courts have grappled with whether challenges to this type of internal rule present50 Nos. 05-4604 & 05-4781

nonjusticiable political questions for the reason that there is an explicit textua l commitment to each house to set its own rules. See U.S. Const. art. I, § 5, cl. 2; Ind. Const. art. IV, § 10. But, interestingl y, there is a qualification to the political question doctri ne for cases in which the internal rules “transgress[] identifiable textual limits,”
Nixon v. United States , 506 U.S. 224, 238 (1993). Under
Nixon , internal rules give way to constitutional text but are otherwise generally unreviewable. Id. at 237-38; cf

. Marshall
Field & Co. v. Clark, 143 U.S. 649 (1892) (holding that an
enrolled bill is conclusive evid ence of its validity; refusing to evaluate the process or rules by which it reached that point). So we are back to the same question: if a House
rule violates the Establishm ent Clause, which looks likean identifiable textual limit on federal lawmaking authority, and state authority th rough incorpor ation by the Fourteenth Amendment, is it the kind of legislative enactment that would suppo rt taxpayer standing?
There is no indication anywhere that a rule like House Rule 10.2 is anything other th an legislative. Indeed, the Indiana courts have made it clear that the powers of the two houses of its Legislative Branch are themselves solely legislative in nature; neither the executive nor the judicial branches of governme nt may interfere with them. See, e.g. , State ex rel. Wheeler v. Shelby Circuit Court , 362 N.E.2d 477 (Ind. 1977), on re hearing 369 N.E.2d 933 (Ind. 1977); State ex rel. Batchelet v. Dekalb Circuit Court , 229 N.E.2d 798 (Ind. 1967); State ex rel. Acker v. Reeves , 95 N.E.2d 838 (Ind. 1951). Both the majorityand the United States, as
amicus curiae , argue that it is proper to characterize the rules as non-legislative because they address an internal legislative matter, rather than a public act of the legislature. (Indirectly, perhaps, the majority and amicus are returningNos. 05-4604 & 05-4781 51

to the political question argu ment. The existence of a possible political question, howe ver, does not defeat standing to sue; it presents a diffe rent reason why a court might not adjudicate a case.) In any event, this argument misses the key issue animating Freedom From Religion : JusticeAlito’s rationale was founded on the fact that the expenditure was not only executive but discretionary—two steps removed from any legislative action. The majority in our case bases its argument on the fact that there is no specific line item reading “Chaplain—Minister of the Day Program” in the budget . But that begs the question. The budget is not the only legisl ative act before us. There is also House Rule 10.2, which specifically calls for the prayer, and the prayer is co ncretely supported by the appropriations the General Assembly makes for the House in the budget. Far from being twice-removed from a legislative action, as was the case in Freedom From Religion , the challenge before us is ratified twice by the legislature, once as a rule and the second time in the budget. It is unquestionably a legislative act.
The House Prayer is thus different from the Bible readings at issue in Doremus v. Board of Ed. of Hawthorne , 342 U.S. 429 (1952)—a case that in any event pre-dated Flast and thus may have been qualified by the later decision. Although the readings fr om the Old Testament with which public school teachers were to begin the school day were required by a New Jers ey statute, they were conducted under the broader umbrella of the state’s school program. The Court saw no “pocketbook” angle to the case, 342 U.S. at 434, but only “a religious difference.” Id. It then commented that “[i]f appellants established the requisite special injury necessa ry to a taxpayer’s case or controversy, it would not matter that their dominant52 Nos. 05-4604 & 05-4781

inducement to action was more religious than mercenary.”
Id. at 434-35. The real problem for the taxpayer-plaintiffs

in Doremus, therefore, was a failure of proof of any pocketbook consequence; plaintiffs here, in contrast, have taken pains to spell out the financia l implications of the House Prayer. To reiterate, there is a line item for “House Expenses,” and doubtless the accounts into which that appropriation is put are the ones drawn down to pay for the Minister of the Day program. Flast requires a nexus between taxpayer status (paying into the fisc) and the type of legislative action en acted (the budget item for “House Expenses,” from whic h these expenditures aremade, and Rule 10.2, in furtherance of which these expenditures are made).
The majority would require litigants to trace money directly through th e state’s accounts, which is surely anexcessive requirement for a preliminary matter like standing. This reading of Freedom From Religion would effectively adopt Justice Scalia’s concu rring opinion for himself and Justice Thomas advocating the overruling of Flast , in
contravention of the rule in Marks v. United States , 430 U.S. 188 (1977), which held that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by thoseMembers who concurred in the judgments on the narrowest grounds . . . .’ ” Id. at 193 (citation omitted). It would become impossible to bring a taxpayer suit for anythingshort of an unimaginably stupid or insensitive legislative action—perhaps a law announcing that Indiana is a Christian state—which in any event would be unlikely to inflict specific enough harm on any one person to allow him or her to sue for more particular injuries.Nos. 05-4604 & 05-4781 53

The majority’s approach also disregards the special place that legislative chaplaincies have held in the Supreme Court’s Establishment Clause and standing jurisprudence.
Marsh v. Chambers was decided in 1983, long after both

Doremus and Flastwere on the books. In that case, theCourt considered a challenge to the practice of the Nebraska legislature of opening each legislative day with a prayer by a chaplain paid bythe state. 463 U.S. at 784. The plaintiff, Ernest Chambers, sued both in his capacity as a member of the Nebraska legislature and in his capacity as a taxpayer of Nebrask a. The Supreme Court noted that the court of appeals had considered, among other things, the question of standing, id. at 785, but it moved directly to the merits—something it could not have done, given the jurisdictional nature of an Article III challenge, had it thought that there wa s a problem with standing. On the merits, the Court found no problem with the chaplaincy that Nebraska had adopted. It noted in passing that the chaplain had characterized his prayers as “ ’nonsectarian,’ ‘Judeo Christian,’ and with ‘elements of the American civil religion.’ ” Id. at 793 n.14. It also no ted that “[a]lthough some of his earlier prayers we re often explicitly Christian, [the chaplain] removed all references to Christ after a 1980 complaint from a Jewish legislator.” Id. These, of course, are merits judgments.
I do not rule out the possibility that some or all of theprayers offered before the Indiana House might similarly pass muster under Marsh. Unfortunately, however, we are never to find out. Under the majority’s approach, even if the Speaker decides to start working his way through the Anglican Bookof Common Prayer day by day, notwithstanding the pr esence of Jewish, Muslim, Hindu, Buddhist, and other le gislators, staff, and con-54 Nos. 05-4604 & 05-4781

stituents, nothing can be done to enforce the command of the Establishment Clause. As long as a majority of the House is Christian, it is al so reasonable to predict that
the House itself will never take action to curb such a practice.
Apart from all the other problems I see with this outcome, it is striking how inconsistent it is with the history of the Establishment Clause. A leading casebook on the subject summarized the type of “establishment of religion”
that was known to the Framers of the Constitution as including four prominent features: (1) governmentalcontrol over church doctrine and personnel; (2) suppression of alternative faiths; (3 ) political conne ctions between the established church and the lay government; and (4) compelled attendance and financial support for the established church. Michael W. McConnell, John H. Garvey, and Thomas C. Berg, Religion and the Constitution 21-23 (Aspen 2002). To illustrate the sort of state establishments that persisted after the Constitution was written, the book presents the case of Barnes v. First Parish in
Falmouth , 6 Mass. 400, 1810 WL 938 (1810), which dealtwith the question whether a public school teacher affiliated with a sect of Christianity different from that of the majority in his area could recover taxes paid over to the majority church. In rejecting his case, the court had this to say:
Having secured liberty of conscience, on the subject of religious opinion and worship, for every man, whether Protestant or Catholic, Jew, Mahometan, or Pagan, the constitution then provides for the public teaching of the precepts and maxims of the religion, of Protestant Christians to all the people. And for this purpose it is made the right and the duty of all corporate religiousNos. 05-4604 & 05-4781 55

societies, to elect and su pport a public Protestant teacher of piety, religion, and morality; and the election and support of the teacher depend exclusively on the will of a majority of eachsociety incorporated for those purposes.
1810 WL 938 at *4. This case arose long before the enactment of the Fourteenth Amendment, obviously, and thus long before the Establishment Clause operated as a direct restraint on state law. Furthermore, Massachusetts itself
dismantled its established religion in 1833. See McConnell
et al.

, Religion and the Constitution at 35. The element of using taxes as support for religious efforts, however,
was a clear feature of the Massachusetts establishment while it persisted.
Professor Philip Hamburger provides further insight into the evils that the Establishment Clause was designed
to address:
In late eighteenth-century America the dissenters
from the established church es sought limitations oncivil government and did so in arguments that conformed to recognizable patterns. The states with establishments had once pa ssed laws imposing penalties on dissenters but now more typically enacted only privileges for their established denominations— notably, salaries for the established clergy. Against
these establishments of religion mostdissenters sought not only a freedom from penalties (whether in terms of the “freedom of worship” or the “free exercise of religion”) but also guar antees against the unequal distribution of government salaries and other benefits on account of differences in religious beliefs. Some
dissenters even demanded assurances that there would not be any civil law taking “cognizance” of56 Nos. 05-4604 & 05-4781

religion. As a result, the American constitutions that
were drafted to accommodate the antiestablishment demands of dissenters guaranteed religious libertyin terms of these limitations on government—specifically, limits on discrimination by civil laws and on the subject matter of civil laws.
Phillip Hamburger, Separation of Church and State 11-12 (Harvard University 2002). Madison agreed with the dissenters who thought that the state should not establish a religion; indeed he may have favored a more absolute separation between “matters of Religion” and “Civil Society.” Id. at 105. When it came to drafting the Bill of Rights, however, he settled on antiestablishment language similar to that which was finally adopted. Id. This suggests that the Establishment Clause was the result of efforts by religious dissenters who fe lt the need to protect themselves from the dominant established sects that hadmanaged to secure various benefits that could be conferred only by the state, includ ing access to the public fisc.
In my view, the taxpayer-plaintiffs before us have alleged enough to win the right to present their challenge to the House Prayer before a judicialforum. They are challenging a legislative act, and they have alleged concrete pocketbook injuries. Given both the ruling in Marsh and the qualifications on that ruling, the issue they wish to present is a serious one. They argue, in essence, that preferential access to the Speaker’s stand for adherents to the Christianfaith is exactly the kind of problem that the First Amendment’s Establishment Clause was supposed to remedy. Were this a simple Establishment Clause case in which they complained about hearing the prayers as they walked past the door of the House Chamber on their usual way to work, they may very well have been entitledNos. 05-4604 & 05-4781 57

to proceed. The majority overextends the command of Freedom From Religion in denying them a day in court. I respectfully dissent.

A true Copy:

Teste:

_____________________________ Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—10-30-07