In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 05-4604 & 05-4781

ANTHONY HINRICHS, HENRY GERNER,

LYNETTE HEROLD, et al.,

Plaintiffs-Appellees,

v.

SPEAKER OF THE HOUSE OF

REPRESENTATIVES OF THE

INDIANA GENERAL ASSEMBLY,

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.

____________

ARGUED SEPTEMBER 7, 2006—DECIDED OCTOBER 30, 2007

____________

Before RIPPLE, KANNE and WOOD, Circuit Judges.

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 practice of legislative prayer as

implemented by the House violated the Establishment
2 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 decision was based only on a

preliminary understanding of the facts surrounding

Indiana’s practice. See Hinrichs v. Bosma, 440 F.3d 393 (7th

Cir. 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 composed of the Senate and

the 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 chamber
Nos. 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 without 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 religious

affiliation. To nominate a member of the clergy, a representative fills out a “Minister of the Day” form setting forth

the dates when the clergy member is available. The representative then submits the form 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 short 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 backgrounds. 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 prayer 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 representative

has given the invocation. On such an occasion, the representative does not receive guidance from anyone associated with the House concerning the form or content

of the prayer. No one associated with the House ever has

advised, corrected or admonished a minister or representative about the religious content of an invocation.

During the 2005 House session, the invocation was

delivered 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,” “Almighty God,” or “Heavenly

Father.” Id. Att. 6 at 3, 7 (prayers of January 10 and 13, 2005

and 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 February 28, 2005); still 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 14
Nos. 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 the 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 mailing. Before a session

commenced, the House members sometimes took photographs with the clergy scheduled to give the invocation.

These photographs cost $.68 per print and were mailed

at a cost of $1.60 per print. A thank-you letter sometimes was sent to visiting clergy, also at a cost of $.54

per mailing. Additionally, the sessions of the Indiana

House are broadcast on the Internet at a cost of $112.85

per 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 cover 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 official proceedings of the House

of Representatives. If the Speaker chooses to continue to

permit non-sectarian prayers as part of the official 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 the 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 Representatives 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 House 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 offered as part of the official

proceedings of the House of Representatives.” R.31 at 1.3
Nos. 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 belief, and (b) that the prayers

should 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 addressed 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 prayer that plaintiffs challenge.

Because the plaintiffs are Indiana taxpayers who

have proven “a measurable appropriation or disbursement of [public] funds occasioned solely by the activities complained of,” Doremus [v. Board of Education],

342 U.S. [429,] 434 [(1952)], all four plaintiffs have

standing under Article III to challenge the constitutionality of the official legislative prayers.

R.30 at 24. The district court then 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 the official prayers offered

to open sessions of the Indiana House of Representatives repeatedly and consistently advance the beliefs

that define the Christian religion: 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 preference for Christianity over

other 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 prayers in the Indiana House

therefore takes the prayers outside the safe harbor the

Supreme Court recognized for 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 official

prayers 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 because it exceed[ed] the Court’s

jurisdiction in taxpayer-standing cases” and “because it
Nos. 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 Speaker maintained that “the

injunction [wa]s vague and [gave] 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.4

 In its order, the district court first rejected the Speaker’s argument “that the

court 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 the

constitutional 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 addressed the Speaker’s contention that “the injunction is too 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 what

would constitute prayers that “are sectarian in the Christian tradition,” specifically those that “proclaim or otherwise communicate the beliefs that Jesus of Nazareth
Nos. 05-4604 & 05-4781 11

5 As noted by our dissenting colleague, a pecuniary interest is

not the only means of establishing standing. See dissent at 43-44.

In the context of an alleged Establishment Clause violation, we

have stated that “allegations of direct 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 jurisdictional 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 establishing [its] standing under

Article III.” DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854,

1861 (2006).

When we first approached this issue on the Speaker’s

motion to stay, we noted that, in order to establish taxpayer standing—the only basis for standing asserted

here5

—the plaintiffs “must demonstrate that the challenged
12 Nos. 05-4604 & 05-4781

5 (...continued)

initially asserted both standing as taxpayers and, with respect

to Mr. Hinrichs, standing as individual subject to “direct and

unwelcome exposure” to the House prayers as a result of his

job as a lobbyist. The plaintiffs, 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 lobby for 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 monies raised through taxes and

that the use of those monies exceeds a specific constitutional limitation on the use of public funds, such as the

First Amendment’s prohibition 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 guidance concerning the breadth

of its taxpayer standing jurisprudence. We invited the

parties 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—any
Nos. 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 standing. 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; see Appellees’ Supp.

Br. at 4.

Upon consideration of the 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 standing to challenge alleged

Establishment Clause violations, is in order.

A. Taxpayer Standing Prior to Flast v. Cohen

Our discussion must begin with the Supreme Court’s

initial pronouncements on taxpayer 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 grounds that the appropriations

authorized by the Act were “for 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 afforded for an appeal to the

preventive powers of a court of equity.” Id. at 487. The

Court explained that passing on the 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 some 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 immediately

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

in some indefinite way in common with people generally. 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 of
Nos. 05-4604 & 05-4781 15

their complaint, it is merely that officials of the executive department of the government are executing and

will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent. To do so

would be, not to decide a judicial controversy, but to

assume 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 is

not 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 challenged a New Jersey statute

requiring the recitation of five verses of the Old Testament

at the beginning of each school 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 taxpayers could pursue their

challenge, the Court first reiterated 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 indirect to 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 Act [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-faith pocketbook action.” Id. It is

a question, the Court stated, “of 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, the 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 against taxpayer standing erected

in Frothingham. Specifically, the Court had to decide

“whether the Frothingham barrier should be lowered when

a taxpayer attacks a federal statute on the ground that it

violates the Establishment and Free Exercise Clauses of the

First Amendment.” Id. at 85. At issue in Flast was 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 moneys

of the treasury . . . is comparatively minute and indeterminable” and that “the effect upon future taxation,

of any payment out of the (Treasury’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” necessary 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 application of those limitations to

taxpayer suits.” Id. at 94.

The Court, however, did not turn immediately to the

concept of standing, but first examined the limitations

placed on federal courts by the case or controversy requirement of Article III. Justiciability, 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 rule against advisory opinions on federal courts. When the federal judicial power
18 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 also acknowledged that “[t]he

‘many subtle pressures’ which cause policy considerations

to blend into the constitutional 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 upon which 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 “federal courts w[ould] not be asked
Nos. 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). The

Court 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. It

is 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 stake

in the outcome” of a particular case necessary to establish standing. Flast, 392 U.S. at 101. Indeed, the Court

stated that the requisite stake 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 unconstitutionality 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 of

tax funds in the administration of an essentially regulatory statute. This requirement is consistent with

the limitation imposed upon state-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 this

requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional

limitations imposed upon the exercise of the congressional taxing and spending power and not simply that

the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. When both nexuses

are established, the litigant will have shown a taxpayer’s stake in the outcome 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 limitation on Congress’ spending

power: “Our history vividly illustrates that one of the

specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one
Nos. 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 taxpayer will have standing consistent with Article III to invoke federal judicial

power when he alleges that congressional action

under the taxing and spending clause is in derogation

of those constitutional provisions which operate to

restrict the exercise of the taxing and spending power.

The taxpayer’s allegation in such cases would be that

his 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 claim of standing to secure

judicial review. Under such circumstances, we feel

confident that the questions will be framed with the

necessary 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 traditionally thought 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. For
22 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 the

statute 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, however, 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 the “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 Flast as a

means of extending state taxpayer standing. As noted

above, the Court previously had suggested in Doremus that

the limitations on federal taxpayer standing were equally

applicable to state taxpayers challenging state actions.6

 The
Nos. 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.

7

 In Cuno, state taxpayers sought to

challenge actions by the city of Toledo and the State of

Ohio to encourage the manufacture of Jeeps in the Toledo

area, specifically through offering 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 was

invalid. 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 plaintiff’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 standing 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 equally true when a state Act

is assailed: ‘The [taxpayer] must be able to show . . .

that he has sustained . . . some direct injury . . . and not

merely 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 standing to state taxpayers

challenging appropriations made 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 discretion in establishing standing;

a party seeking federal jurisdiction 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 budgets

frequently 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 the 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 Flast urged 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 jurisprudential 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 “general 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 Flast and [Bowen v.] Kendrick[, 487 U.S. 589 (1988),]

on the other is that the expenditures in those cases

were pursuant to specific congressional grant programs, while in this case, there is no statutory program,

just the general “program” of appropriating some

money to executive-branch departments without

strings attached. The difference cannot be controlling.

Freedom from Religion Found., Inc. v. Chao, 433 F.3d 989, 994

(7th Cir. 2006). The Supreme Court disagreed. After

reiterating the test for taxpayer standing set forth in Flast,

see Flast, 392 U.S. at 102-03, the plurality determined that

the difference between a specific congressional enactment authorizing the expenditure 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 constitutional violation that
Nos. 05-4604 & 05-4781 27

supported taxpayer standing 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 congressional 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 appropriations to the Executive

Branch to fund its day-to-day activities. These appropriations did not expressly authorize, direct, or even

mention the expenditures of which respondents

complain. Those expenditures resulted from executive discretion, not congressional action.

Id. at 2566 (footnote omitted). Consequently, the plurality

concluded that “this case falls 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 congressional enactment,” the

Justices in the plurality explained, “respondents’ lawsuit

is not directed at an exercise of congressional power, and

thus lacks the requisite ‘logical 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 reiterated
28 Nos. 05-4604 & 05-4781

most recently in Hein, is that federal taxpayers may not

lodge constitutional challenges 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 “logical

link between [his taxpayer] status and the type of legislative enactment attacked” as well as “a nexus between that

status and the precise nature of the constitutional infringement alleged.” Flast, 392 U.S. at 102-03. Second, the nexus

between 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 congressional mandate and a

specific congressional appropriation” met the first nexus

requirement; the plurality rejected the plaintiffs’ claim

that any “expenditure of government 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[ding]’ of ‘tax money’ in aid

of religion.” Cuno, 126 S. Ct. at 1865 (quoting Flast, 392 U.S.

at 106). Finally, state taxpayers are held to the same

standing requirements as federal 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 Representatives. It is clear from the

parties’ stipulations that Indiana’s practice consists of a

“Minister of the Day” program that involves the offering

of 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 merely

provides that a prayer or invocation be given each meeting day before the House conducts any business. The

manner in which the program is currently administered

is 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 the legislature to implement

the program. Furthermore, other than the costs of webcasting, the only costs incurred are postage for the sending of thank-you letters and pictures. These costs not

only are unrelated to the content 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 their

status as taxpayers to the House’s allegedly unconstitutional practice of regularly offering a sectarian prayer. They

have not shown that the legislature has extracted from

them 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 even
30 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 10.2

in 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 plaintiffs 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 rejected 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 preliminary conclusion of the stay

panel that the plaintiffs possessed standing to maintain this
Nos. 05-4604 & 05-4781 31

9 The plaintiffs also argue that “this Court has also consistently

acknowledged that Flast gives 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 Flast as we found

it.” Id. at 2571-72. Because this court’s initial determination

was based on Flast (and case law interpreting Flast), the

plaintiffs urge that Hein leaves undisturbed the stay panel’s

standing determination. 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 lower 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 Flast than the one articulated by

the plurality in Hein. In our earlier treatment, we stated:

“Both parties accept that, in order to have standing as a

taxpayer, a person must demonstrate that the challenged program is supported by monies raised through

taxes and that the use of those monies exceeds a specific

constitutional limitation on the use of public funds, such as

the First Amendment’s prohibition 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 the

appropriation of those funds for the allegedly unconstitutional purpose that provides the link between taxpayer

and expenditure necessary to support standing.9
32 Nos. 05-4604 & 05-4781

9 (...continued)

contribute to Establishment 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, the

Supreme 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 to

municipal 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)). Similarly, 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 determinations 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 would “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 the 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.

REVERSED and REMANDED

WITH INSTRUCTIONS
34 Nos. 05-4604 & 05-4781

WOOD, 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 recent 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 right 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 display hostility toward minority or

non-approved religions; (3) states that fail to address

either societal discrimination or 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 respect 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 accomplishment is a result of the

delicate balance drawn in the First Amendment to the

Constitution between the protection of each person’s right

freely to exercise his or her 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 herself, her family, her community,

and the greater world around her. Americans classically

do not sit back and wait for someone else to solve a problem. This may help to explain why the tradition of the

private attorney general arose in the United States and

continues to be such an important 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 a

common 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, coalitions have not shifted as
36 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 by either 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 or

Controversy” in the sense that Article III of the Constitution uses that phrase. One aspect of this Article III command is that the plaintiff must have “standing to sue.” Put

negatively, standing is lacking when “even though the

claim 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 the

injury 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 question

whether 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 system 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 the 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 presides over the House from

the Speaker’s stand at the front of the House; under
38 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 and 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 by a 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 stand 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 short 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 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 letter

cost 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. The

person 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 available, the person explicitly

offered the prayer in the name of Jesus, Christ, the

Savior, or the Son (sometimes 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 Spirit of 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 support religion and sectarian

prayer, and that this practice violated the Establishment

Clause. The district court found that they had standing

to sue, under Flast v. Cohen, and that the particular

prayers the Speaker was permitting crossed the line
Nos. 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 appealed

under 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 question I wish to highlight the

implications (or lack thereof) 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 question whether the House may

sponsor prayers at State expense urging everyone in the

chamber to adhere to Christianity, or edicts declaring the

room a “hallowed place,” or musical exhortations, revivalstyle, to “talk with Jesus,” 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 majority 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 taxpayer
42 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 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 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 taxing
Nos. 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 object to 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 (1972), 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 the

adverse 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, “discrimination by itself, by perpetuating archaic and stereotypic notions or by stigmatizing members of the disfavored groups as innately inferior

and therefore less worthy participants 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 Kennedy

pointed out, through something as minimal as the detriment of buying plane tickets to see the disappearing

animals. Id. at 579 (Kennedy, J., concurring); see also Japan

Whaling Assn. v. American Cetacean Society, 478 U.S. 221,

231 n.4 (1986) (“Respondents . . . undoubtedly have

alleged a sufficient ‘injury in fact’ in that the whale watching and studying of their members will be adversely

affected by continued 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 taxpayer cases, 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 the
Nos. 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 injuries in Establishment Clause

cases, the plaintiffs here have shown more concrete damage than most: they have enumerated, 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 graduation 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 they are taxpayers—is even ex-
46 Nos. 05-4604 & 05-4781

pressly considered and warned against in the letter sent to

Ministers of the Day, asking that they “strive to be ecumenical”; the caution is presumably 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 ante at 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 before 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 afforded by Ohio law violated the

Commerce Clause. The Court concluded 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 Scalia 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 DaimlerChrysler had 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 plurality thought that the Flast rule

did not apply to the plaintiffs in Freedom From Religion

was simple: the plaintiffs were not challenging legislative actions; instead, they were attacking Executive

Branch expenditures in support of religion (in particular,

the White House Office of Faith-Based and Community

Initiatives within the Executive Office of the President,

and related Executive Centers in other federal agencies

and departments). While the dissenters took the plurality

to task for that distinction, arguing that the Judicial Branch

has 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 Flast were made pursuant to an express congressional

mandate and a specific congressional appropriation.” 127
48 Nos. 05-4604 & 05-4781

S.Ct. at 2565. In the case before the Court, in contrast,

“[r]espondents [did] not challenge any specific congressional action or appropriation; nor [did] they ask the Court

to invalidate any congressional enactment or legislatively

created program as unconstitutional.” Id. at 2566. Allowing

taxpayers to challenge general 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. Justice 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 authorized 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” between taxpayer status “and

the type of legislative enactment attacked.” Flast, 392

U.S. at 102.

Id. at 2568. Finally, Justice Alito rejected the “parade of

horribles” that respondents feared would occur if discretionary Executive Branch expenditures were outside the

reach of taxpayer litigation. “In the unlikely event that

any of these [overtly religious] 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 unconstitutional
Nos. 05-4604 & 05-4781 49

because it violates the Establishment Clause, we must

look more specifically at what our plaintiffs are attempting to challenge to see whether this suit may go forward

to an adjudication on the merits. What we find is a challenge to a legislative chaplaincy, created by a House Rule

enacted 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 next 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. (They

certainly 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 present
50 Nos. 05-4604 & 05-4781

nonjusticiable political questions for the reason that

there is an explicit textual commitment to each house to

set its own rules. See U.S. Const. art. I, § 5, cl. 2; Ind. Const.

art. IV, § 10. But, interestingly, there is a qualification to

the political question doctrine 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 evidence 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 Establishment Clause, which looks like

an identifiable textual limit on federal lawmaking authority, and state authority through incorporation by the

Fourteenth Amendment, is it the kind of legislative enactment that would support taxpayer standing?

There is no indication anywhere that a rule like House

Rule 10.2 is anything other than 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 government may interfere with them.

See, e.g., State ex rel. Wheeler v. Shelby Circuit Court, 362

N.E.2d 477 (Ind. 1977), on rehearing 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 majority and 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 returning
Nos. 05-4604 & 05-4781 51

to the political question argument. The existence of a possible political question, however, does not defeat standing to sue; it presents a different reason why a court might

not adjudicate a case.) In any event, this argument misses

the key issue animating Freedom From Religion: Justice

Alito’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 legislative act before us. There is

also House Rule 10.2, which specifically calls for the

prayer, and the prayer is concretely 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 from the Old Testament with

which public school teachers were to begin the school day

were required by a New Jersey 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 necessary to a taxpayer’s case or

controversy, it would not matter that their dominant
52 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 financial 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 enacted (the budget item for

“House Expenses,” from which these expenditures are

made, and Rule 10.2, in furtherance of which these expenditures are made).

The majority would require litigants to trace money

directly through the state’s accounts, which is surely an

excessive requirement for a preliminary matter like standing. This reading of Freedom From Religion would effectively

adopt Justice Scalia’s concurring 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 those

Members who concurred in the judgments on the narrowest grounds . . . .’ ” Id. at 193 (citation omitted). It would

become impossible to bring a taxpayer suit for anything

short 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 Flast were on the books. In that case, the

Court considered a challenge to the practice of the Nebraska legislature of opening each legislative day with a

prayer by a chaplain paid by the 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 Nebraska. 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 was 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 noted that “[a]lthough

some of his earlier prayers were 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 the

prayers 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 Book of Common Prayer day by

day, notwithstanding the presence of Jewish, Muslim,

Hindu, Buddhist, and other legislators, 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 also 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) governmental

control over church doctrine and personnel; (2) suppression of alternative faiths; (3) political connections 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 dealt

with 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 religious
Nos. 05-4604 & 05-4781 55

societies, to elect and support 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 each society 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 churches sought limitations on

civil government and did so in arguments that conformed to recognizable patterns. The states with

establishments had once passed 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 most dissenters

sought not only a freedom from penalties (whether in

terms of the “freedom of worship” or the “free exercise

of religion”) but also guarantees 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” of
56 Nos. 05-4604 & 05-4781

religion. As a result, the American constitutions that

were drafted to accommodate the antiestablishment

demands of dissenters guaranteed religious liberty

in 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 felt the need to protect themselves from the dominant established sects that had

managed to secure various benefits that could be conferred only by the state, including 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 judicial forum. 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 Christian

faith 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 entitled
Nos. 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