Flast v. Cohen (1968) – Part Two: That’s Me In The Courtroom

Recap of Part One:

Losing My ReligionThe Supreme Court explained in Commonwealth of Massachusetts v. Mellon (1923) that simply being a taxpayer didn’t give one the right to protest government actions – even potentially unconstitutional ones – in the courts. There were simply too many “what ifs” between the individual taxpayer sending in their $20 and any one specific expenditure.

Nevertheless, plaintiffs – at least in Establishment cases – tended to reference the fact that they were taxpayers in their complaints against government actions over the next several decades, even if they were also parents of students being impacted. It was rarely the focus on the Court’s decisions, but it kinda kept coming up.

In the 1960s, the Court began framing the Establishment Clause as something fundamentally different than the other protections in the Bill of Rights. As a result, arguments that this particular clause was being violated might have to operate according to a slightly different set of rules than the rest.

Finally, in 1968, the Court did its best to explain exactly what that might look like, at least when it came to taxpayer standing. Turns out it was Agatha all along – only not really.

Just checking to see if you’re paying attention. Now Part Two:

Flast v. Cohen (1968)

In Flast, a group of taxpayers objected to the use of public funds to provide secular textbooks for sectarian schools. The government argued that based on established precedent, they had no standing to sue. The case, then, became about standing rather than the merits of their complaint. If they weren’t qualified to bring the suit to begin with, it didn’t really matter how right or wrong they were on substance.

TaxesThe Supreme Court determined that there was nothing in the Constitution barring federal taxpayers from challenging taxing and spending they believed to be unconstitutional, so long as they could persuasively demonstrate a “necessary stake” in the results. Plaintiffs had to demonstrate that a legislature had exceeded their constitutional authority for taxing and spending AND identify a specific constitutional right being violated in order to show actual “harm” being done to them in some way.

Here’s how the Court put it in its majority opinion, penned by Chief Justice Earl Warren (internal quotes and citations have been omitted for clarity):

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…

{W}e find no absolute bar in Article III to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs…

First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Article. I, Section 8, of the Constitution… Secondly, 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…

While we express no view at all on the merits of appellants’ claims in this case, their complaint contains sufficient allegations under the criteria we have outlined to give them standing to invoke a federal court's jurisdiction for an adjudication on the merits.

In practice, this turned out to mean that only when the Establishment Clause was involved would being a taxpayer secure standing in the eyes of the law. The decision in Flast wasn’t quite that specific, but in the half-century since, that’s how it’s worked out.

The Lemon Aid

Lemon TestA few short years later, in Lemon v. Kurtzman (1971), the Court ruled against state support of religious education via materials and – in some cases – salary support, declaring it a constitutional no-no. The plaintiffs were taxpayers in the relevant districts and several also had children in the local schools, so standing wasn’t an issue. The aid was a bit more involved, making it different from mere “textbooks” in the eyes of the Court. From Lemon emerged the “Lemon Test,” an informal tool often utilized by the Court to weigh the church-state constitutionality of government actions. The Lemon Test has three parts:

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion… finally, the statute must not foster "an excessive government entanglement with religion"…

Those first two would come up more often than the third, and later evolve into what’s commonly referred to as the “endorsement test.” While not official, the Lemon Test acknowledges the importance of how government actions are perceived as well as their intent. In other words, establishment is not just about the letter of a law – it’s about motivations and practical results as well.

“Unwanted Exposure”

Sometimes, of course, Establishment Clause violations come without obvious taxing and spending involved, meaning they don’t trigger the standing requirements outlined in Flast. In these cases, the Court will often allow plaintiff standing based on what Professor Carl H. Esbeck of the University of Missouri School of Law calls “unwanted exposure.” In practice, this means that even if someone’s tax dollars aren’t directly paying for something, that doesn’t mean it’s OK for the government to push a message approving some faiths over others, or faith in general over no faith at all. Violations of the Establishment Clause don’t have to be expensive to be violations.

In Stone v. Graham (1980), the Court invalidated a Kentucky state law which required public schools to post the Ten Commandments in classrooms. The actual copies of the Decalogue were donated by outside organizations, so there was no legislative spending involved. As with the mandatory prayer or Bible-reading in Engel or Abington, however, students were still exposed to a daily religious message brought to them on behalf of their government and with subtle but unpleasant consequences for those who chose not to play along. The plaintiffs in Stone, several parents and one teacher, had standing based on this “unwanted exposure” not covered in Flast.

Bible TaxesIn Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. (1982), the Court refused standing to taxpayers who complained about the transfer of government property to a Christian college. The decision had been made by the Executive Branch; there was no legislation instituting new taxes or creating new spending involved. The Court based its reasoning on the two-part test established in Flast.

Marsh v. Chambers (1983) originated with a Nebraska state legislator who didn’t like paying local clergy to offer a prayer at the beginning of each day. The government didn’t make standing a major issue, but the Supreme Court’s majority opinion acknowledged in a footnote that “we agree that Chambers, as a member of the legislature and as a taxpayer whose taxes are used to fund the chaplaincy, has standing to assert this claim.” In short, he had standing based on both taxpayer status and “unwanted exposure.” (Chambers lost his case on its merits, however, based largely on the idea that adults aren’t children forced to do what others tell them to all day. “Legislators, federal and state, are mature adults who may presumably absent themselves from such public and ceremonial exercises without incurring any penalty, direct or indirect.”)

Lynch v. Donnelly (1984) – The Message Conveyed

Plaintiffs in Lynch v. Donnelly challenged the constitutionality of a Christmas display put up by the city of Pawtucket, Rhode Island, each year which prominently featured a full Nativity Scene (Mary, Joseph, a glowing Baby Jesus, etc.) The Court did not address standing as such, but the plaintiffs were local residents who would have easily qualified under the “unwanted exposure” principle inherent in the Court’s previous decisions. In terms of its impact on cases related to education, the real significance of Lynch was captured in the concurring opinion of Justice Sandra Day O’Connor:

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by non-adherents of the religion, and foster the creation of political constituencies defined along religious lines…

The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message…

The meaning of a statement to its audience depends both on the intention of the speaker and on the “objective” meaning of the statement in the community. Some listeners need not rely solely on the words themselves in discerning the speaker’s intent: they can judge the intent by, for example, examining the context of the statement or asking questions of the speaker. Other listeners do not have or will not seek access to such evidence of intent. They will rely instead on the words themselves; for them, the message actually conveyed may be something not actually intended. If the audience is large, as it always is when government “speaks” by word or deed, some portion of the audience will inevitably receive a message determined by the “objective” content of the statement, and some portion will inevitably receive the intended message.

Examination of both the subjective and the objective components of the message communicated by a government action is therefore necessary to determine whether the action carries a forbidden meaning.

Lynch v. DonnellyAlthough Justice O’Connor doesn’t explicitly connect the two, this is why “unwanted exposure” is a valid foundation for standing. It doesn’t mean the individual will win every time they claim offense (the Court said Pawtucket could keep its Nativity Scene, for example), but it does recognize that violations of the Establishment Clause aren’t always full of obvious arm-twisting or overt threats to “non-adherents.” There’s more to many government messages than the literal, face-value words or actions. Just like your kids, teachers, co-workers, boss, or spouse, sometimes you know quite well what’s being communicated even if the other person doesn’t come right out and say it.

Lynch was not an education case, but it was subsequently cited dozens of times in cases which were. There was an education-related case before the Court at this same time, however. It was one of the earliest “school choice” cases and involved the troubling history of many private schools as “segregation academies.” It would also involve the question of standing and the Court’s willingness – or lack thereof – to enforce federal law and the Court’s own previous mandates when it came to racial equality in the United States.

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