Legal Standing Under the First Amendment’s Establishment Clause
Released: 2011-04-05T00:00:00

The Establishment Clause of the First Amendment to the U.S. Constitution provides that "Congress shall make no law respecting an establishment of religion...." The Establishment Clause prohibits government actions that would provide preferential treatment of one religion over another or preferential treatment of religion generally over nonreligion. Alleged violations of the Establishment Clause must meet a threshold requirement known as standing, the legal principle that governs whether a particular individual is the proper party to raise an issue before the courts.

This report analyzes the constitutional issues associated with standing, specifically related to cases arising under the Establishment Clause. It provides a background on the doctrine of standing, including the U.S. Supreme Court's interpretation of various types of standing, such as standing to sue as a citizen, as a taxpayer, and on behalf of another party. It also examines the current standing rules related to the Establishment Clause.

Legal Issues Related to Standing Generally

Standing is a constitutional principle that serves as a restraint on the power of federal courts to render decisions. Under general standing rules that apply to any case, an individual must have an individualized interest that has actually been harmed under the law or by its application to bring that case to court. As a principle, standing "focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated." In some instances, such as the Establishment Clause, an individual may wish to challenge a governmental action that injures the individual as a member of society. The individual may assert that injury as a citizen dissatisfied with a governmental action, as a taxpayer dissatisfied with a governmental expenditure, or as a citizen dissatisfied with treatment of other citizens. The U.S. Supreme Court has construed the requirements to raise such cases narrowly, and individuals seeking to litigate such alleged injuries must meet both constitutional and prudential standing requirements.

Citizen Standing

The Supreme Court has held that individuals generally do not have standing to sue based solely on their status as citizens with a grievance against a government action. In Schlesinger v. Reservists Committee to Stop the War , an association of officers and enlisted members of the Reserves and several individual members of the association alleged that Members of Congress who serve in the Reserves while also serving in Congress were acting in violation of the U.S. Constitution's prohibition on "holding any Office under the United States" while also serving as a Member of Congress. The Reservists Committee asserted their claims on the basis that as citizens and taxpayers, they were injured by the threat that simultaneous service created "the possibility of undue influence by the Executive Branch, in violation of the concept of independence of Congress implicit in Art. I of the Constitution." The Court held that the committee lacked standing to raise the claim. The Court also held that the alleged injury was abstract, speculative, and generalized, and therefore was not a litigable matter for the courts to decide under the standing principles of the U.S. Constitution.

Taxpayer Standing

Similar to the Court's refusal to recognize standing based merely on status as a citizen in opposition of a government action, the Court generally has not recognized standing for claims that challenge government actions based an alleged injury to a taxpayer because of the expenditure of tax revenue. The Court, however, has allowed a narrow exception to this general rule against taxpayer standing and has permitted certain Establishment Clause cases to proceed under taxpayer standing (as discussed later in this report).

In Frothingham v. Mellon , one of the first cases to address taxpayer standing, the Court dismissed a case brought by a taxpayer claiming that disbursements of federal money to a program alleged to be unconstitutional would injure her as a taxpayer. The taxpayer alleged that she would be injured because her taxes would be raised in the future to support the unconstitutional appropriation of federal funds. The Court held that a taxpayer's "interest in the moneys of the Treasury ... is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded" for the taxpayer to have standing on the matter. The Court noted that a party seeking to litigate a government action "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."

The Court later noted a need for clarification regarding whether the refusal to grant taxpayer standing was a constitutional determination or a policy consideration that would be considered as a matter of prudential standing (discussed in the following paragraph). The Court provided a two-part test that a taxpayer must meet in order to have standing under constitutional requirements. First, the taxpayer must be challenging a government action under the congressional power provided by the Taxing and Spending Clause of the Constitution. Second, the taxpayer must show that the government action "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." The Court has continued to apply this standard in taxpayer cases.

Prudential Standing

In addition to the baseline constitutional requirements for standing, individuals seeking to litigate a governmental action in court must also have prudential standing. The Court has held that other factors may call for the courts to refuse to hear certain cases. That is, a court may determine that an individual lacks standing "under the prudential principles by which the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim." The Court has identified three general prudential rules for standing: (1) the individual's interest injured by the government action must fall within the zone of interest arguably protected by the constitutional or statutory provision in question; (2) the individual may not litigate generalized grievances shared by a large group of individuals; and (3) the individual generally may not assert the interest of another to challenge a government action.

Congress's Role in Standing Requirements

Occasionally, however, Congress has provided statutory grounds under some circumstances that would entitle citizens to sue the government if a government action adversely affected them. An individual would have standing in such instances if the individual suffered an injury-in-fact and if the interest he or she seeks to protect is arguably within the zone of interests protected or regulated by the statute in question. Thus, although standing is generally understood as a constitutional principle, Congress may facilitate standing through statutory creations of interests, which may allow individuals who could not qualify under the constitutional requirements to bring their cases to court.

Although constitutional standing requirements cannot be waived or amended by statutory action, Congress retains the ability to confer standing by removing prudential constraints on judicial review. The Court has limited the extent to which taxpayers have standing under the constitutional requirements, but if a statute provides individuals an entitlement that is later denied, the Court has recognized an injury to such individuals. Under such circumstances, the Court has held that the injury "is sufficiently concrete and specific such that the fact that it is widely shared does not deprive Congress of constitutional power to authorize its vindication in the federal courts."

Standing in Establishment Clause Cases

The general rules regarding standing to challenge governmental actions are designed to ensure that courts are addressing actual cases that can be resolved by the judicial system. However, in some circumstances, individuals may seek to challenge governmental actions for which neither those individuals nor any other individuals could meet standing requirements. Indeed, the Supreme Court has noted that in some instances "it can be argued that if [someone with a generalized grievance] is not permitted to litigate this issue, no one can do so." Generally, the Court has noted, "lack of standing within the narrow confines of Art. III jurisdiction does not impair the right to assert [one's] views in the political forum or at the polls."

However, the ability of individuals to effect change through political and democratic means does not eliminate all cases where a large group of individuals would be affected by the challenged governmental action. In particular, the Court has specifically allowed taxpayer standing for claims arising under the Establishment Clause. Under the Flast exception to the general prohibition on taxpayer standing, taxpayers may raise challenges of actions exceeding specific constitutional limitations (such as the Establishment Clause) taken by Congress under Article I's Taxing and Spending Clause. The Court has maintained its narrow interpretation of this exception, refusing to extend it to permit taxpayer lawsuits challenging executive actions or taxpayer lawsuits challenging actions taken under powers other than taxing and spending.

These exceptions, the Court has explained, result because the Establishment Clause is a constitutional limit on the government's ability to act. According to the Court, the framers of the Constitution feared abuse of governmental power that might result in favoring one religion over another. It is difficult to imagine circumstances in which potential abuses of the Establishment Clause could be enforced without this exception.

Litigation Arising Under the Taxing and Spending Clause

Although the Court in Frothingham held that taxpayers generally could not challenge the constitutionality of federal statutes, the Court later lowered the barrier to taxpayer standing for such lawsuits. In 1968, a group of taxpayers challenged the constitutionality of funding dispersed under the Elementary and Secondary Education Act of 1965. The lawsuit, known as Flast v. Cohen , alleged that federal funds were being used to support education in religious schools in violation of the First Amendment.

In its decision, the Court noted that Frothingham had generally addressed the issue of taxpayer standing, but also noted that the strict limitation in Frothingham raised debate over whether the prohibition was constitutionally required or a judicial policy consideration. The Court held that there was "no absolute bar in Article III to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs." The Court distinguished Frothingham 's general prohibition on taxpayer standing, noting that the taxpayer in Frothingham was challenging a federal statute as a violation of the Tenth Amendment, which reserves certain powers for the states rather than the federal government. As a result, the taxpayer could not suffer a direct injury by such an action.

The Court clarified the requirements for taxpayer standing in Flast based on this distinction. It held that "it is both appropriate and necessary to look to the substantive issues ... to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated." In other words, for a taxpayer to have standing to challenge a government action, that action must be sufficiently related to the taxpayer's interest (i.e., his or her tax dollars). The Court explained that taxpayers challenging government actions related to the Establishment Clause would meet its two-part test for standing under Flast . First, the Court found that "the challenged program involves a substantial expenditure of federal tax funds." Second, the Court noted the constitutional history of the Establishment Clause and concern during the drafting of the Constitution that the Establishment Clause would be necessary to prevent abuse of the taxing and spending power in favor of one religion over another or religion generally over nonreligion. Thus, the Court held that Establishment Clause challenges could be brought by individuals acting based on their status as taxpayers because the Establishment Clause is a "specific constitutional limitation upon the exercise of Congress of the taxing and spending power."

The Court's decision in Flast does not guarantee all taxpayers the right to challenge any government action under the Establishment Clause, though. Other cases have addressed the more specific considerations regarding standing of taxpayers to challenge government actions under the Establishment Clause. For example, the Court has recognized a more direct injury to local taxpayers regarding local expenditures than cases raised by federal taxpayers regarding federal expenditures. Under this rule, the Court has allowed a taxpayer to challenge public funding of transportation to parochial schools as a violation of the Establishment Clause. On the other hand, the Court refused to recognize standing for a taxpayer seeking to challenge a state statute that required daily Bible reading at public schools. In that case, there was "no allegation that this activity is supported by any separate tax or paid for from any particular appropriation or that it adds any sum whatever to the cost of conducting the school." The Court also noted that there was "no assertion that she was injured or even offended thereby or that she was compelled to accept, approve or confess agreement with any dogma or creed or even to listen when Scriptures were read." The Court concluded that "it is apparent that the grievance which it is sought to litigate here is not a direct dollars-and-cents injury but is a religious difference" and denied standing to the claimant.

In 2011, the Court further clarified the scope of the Flast exception in Arizona Christian School Tuition Organization v. Winn . Taxpayers challenged the constitutionality of an Arizona statute that permits individuals to claim a tax credit for certain donations to school tuition organizations that use the funds for scholarships to private and, in some instances, religious schools. The Court held that the taxpayers did not have standing to challenge the statute, emphasizing that the taxpayers were challenging an optional tax credit, not a direct tax provision. Under the program, taxpayers would receive a tax credit for their contribution to such organizations, which would essentially reduce their final tax liability; for example, a $100 contribution to a qualified organization would reduce an individual's tax bill by $100. The Court found that the structure of the program did not force taxpayers to support sectarian objectives, but instead allowed taxpayers to contribute to an education program of their choice (religious or secular) or to none at all. Therefore, according to the Court, the potential injury caused by support of religion through the program could not be fairly traced to the government. Ultimately, the Court explained, "what matters under Flast is whether sectarian [organizations] receive government funds drawn from general tax revenues, so that moneys have been extracted from a citizen and handed to a religious institution in violation of the citizen's conscience." The Court noted that although the tax credits did not fall within the scope of the Flast exception, tax credits were not beyond redressability in courts because a tax credit that disadvantaged a particular group would qualify for standing under general standing principles. Thus, programs like Arizona's may raise constitutional concerns, but a decision on the merits would require finding a party who does qualify for standing under general standing principles rather than relying on the Flast exception for taxpayers.

Litigation Arising Under the Property Clause

The Court has refused to extend taxpayer standing to individuals or organizations seeking to challenge executive actions that are undertaken under legislation authorized by the Property Clause. In Valley Forge Christian College v. Americans United for Separation of Church and State , the Court held that an organization of taxpayers did not have standing to challenge the transfer of property to a religiously affiliated college as an unconstitutional government action under the Establishment Clause.

Congress had authorized the Secretary of Health, Education, and Welfare to dispose "of surplus real property 'for school, classroom, or other educational use.'" Under that authority, the Secretary conveyed a tract of land declared to be surplus property to Valley Forge Christian College. The college acquired the property without making any financial payment and with certain conditions attached to the conveyance, which required the property to be used for educational purposes for 30 years. Following the Flast standard, the Court held that Americans United did not have standing because the action they were challenging was an action by an executive agency and was authorized by legislation under the Property Clause, rather than the Taxing and Spending Clause.

The Court explained its decision for maintaining limits on standing based on the need for some limits on the exercise of the judicial power to preserve the balance of power between the three branches of government. The Court rejected the argument that "the Establishment Clause demands special exceptions from the requirement that a plaintiff allege distinct and palpable injury to himself ... that is likely to be redressed if the requested relief is granted." Rather, the Court held that the Establishment Clause deserved no more protection than other constitutional provisions, and that to permit federal courts to consider alleged constitutional errors by the government without a direct injury to the claimant would conflict with the principles guiding the proper role of the judiciary in the government.

The Court noted that its conclusion in Valley Forge was not a "retreat from our earlier holdings that standing may be predicated on noneconomic injury." Rather, the Court emphasized that the litigants in this particular case had not "alleged an injury of any kind, economic or otherwise, sufficient to confer standing," noting that they could show no geographic or other link to the land at issue in the case.

Litigation of Issues Raised on Behalf of Another Individual

The Court has also limited Establishment Clause cases because the litigants lacked prudential standing. In Elk Grove Unified School District v. Newdow , a father challenged the policy of his daughter's school district that required each class to recite the Pledge of Allegiance daily. The lawsuit alleged that mandating the Pledge of Allegiance including the words "under God" violated the Establishment Clause.

The Court held that Newdow, as the child's non-custodial parent under California law, did not have the standing required to sue on her behalf. In this case, the Court ruled that Newdow was prohibited from litigating the issue by requirements of prudential standing, specifically the general prohibition on third-party standing and lawsuits on behalf of other individuals. There is an exception to the prudential standing requirements concerning the rights of minors, which provides that the parent of a child generally may sue on the child's behalf. However, under California law, only the parent with sole legal control over the child may bring a suit on her behalf. Because the father was not the custodial parent, the Court held that he could not litigate his objection on his daughter's behalf.

Litigation Related to Executive Branch Actions

The Court's decision in Hein v. Freedom From Religion Foundation in 2007 has raised questions regarding the future range of eligible litigants seeking to challenge government actions under the Establishment Clause. In Hein , a group of taxpayers challenged the constitutionality of events held for programs under the White House Office of Faith-Based and Community Initiatives, an executive office created in 2001 to remove barriers to religious and community groups seeking federal assistance. It is significant to note that Hein was a plurality opinion, rather than a majority opinion, indicating that the Court has varied interpretations of the principles of standing related to the Establishment Clause.

The Court held that the taxpayers did not have standing under the Flast standard. In Flast , the Court conferred standing for taxpayers who were challenging expenditures "funded by a specific congressional appropriation and were dispersed ... pursuant to a direct and unambiguous congressional mandate." In contrast, the taxpayers in Hein were not challenging "any specific congressional action or appropriation; nor [were they asking] the Court to invalidate any congressional enactment or legislatively created program as unconstitutional." Rather, the expenditures challenged in Hein were "general appropriations to the Executive Branch to fund its day-to-day activities" and "resulted from executive discretion, not congressional action."

The Hein plurality opinion emphasized the Court's history of interpreting taxpayer standing narrowly and its strict requirement that some "logical nexus" exist between the taxpayers and the action being challenged. The opinion noted that the Court previously had recognized taxpayer standing to challenge expenditures administered by executive officials. However, it distinguished that decision because it "involved a program of disbursement of funds pursuant to Congress' taxing and spending powers that Congress had created, authorized, and mandated." In Hein , the taxpayers had not challenged a specific statute as a violation of the Establishment Clause and thus failed the Flast standing requirements.

The Court held that the expenditures by the Executive Branch alleged to violate the Establishment Clause could be treated differently than legislative actions. The Hein opinion noted the broad impact that a decision to the contrary would have, stating that "because almost all Executive Branch activity is ultimately funded by some congressional appropriation, extending the Flast exception to purely executive expenditures would effectively subject every federal action—be it a conference, proclamation, or speech—to Establishment Clause challenge by any taxpayer in federal court." The opinion also elaborated on its separation of powers rationale for narrow taxpayer standing rules. According to Hein , the "relaxation of standing requirements is directly related to the expansion of judicial power, and lowering the taxpayer standing bar to permit challenges of purely executive actions would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government." In other words, if the Court were to broaden taxpayer standing requirements, individual litigants could effect changes in the courts rather than through the national political process.

The Hein decision has had a notable impact on Establishment Clause litigation. Many recent Establishment Clause lawsuits have challenged Executive Branch programs that provide funding to religious organizations. The Hein decision has left the probability of reaching the merits in such lawsuits uncertain. Several courts have dismissed such lawsuits, ruling that the litigants lacked standing in light of Hein . Other litigants have voluntarily dropped their lawsuits, expecting that Hein would cast skepticism on their standing to bring the case. However, some lawsuits have proceeded successfully.