Flast v. Cohen (1968) - Part One: Stand in the Place Where You Sue (Think About Jurisdiction Wonder If You're Injured Now)

Three Big Things:

Stand in the Place Where You Sue

1. To bring a case before any court, one must first establish “standing.” Typically this means proving specific individual harm resulting from the actions of another and demonstrating that the offending party has the power to change whatever’s causing the harm.

2. Being a taxpayer is rarely sufficient to prove standing in the courts to complain about how one’s tax dollars are being used, even if that use is clearly unconstitutional.

3. When it comes to violations of the Establishment Clause, however, unwanted exposure to the offense is often sufficient to show standing in the eyes of the law because, well… Establishment isn’t like anything else.

Standing Before the Court

During the same session which determined in Board of Education v. Allen that states could provide textbooks to public and private schools alike without violating the Establishment Clause, even if many of those private school students were attending religious institutions, the Court announced in Flast v. Cohen that taxpayers had the right to oppose their tax dollars being used to do just that.  

This was sort of news. It was also sort of confusing.

Think About JusticiabilityThe case began when Florence Flast and other New York taxpayers objected to federal legislation which provided funds for the purchase of secular textbooks for use in religious private schools. They argued that using their tax dollars in this way violated the Establishment Clause. The government responded with a derisive chuckle and a gaze full of pity for these poor fools who clearly didn’t understand how these things worked.

See, way back in Commonwealth of Massachusetts v. Mellon (1923), the Court had specifically addressed the question of whether or not taxpayers had standing to sue based on being taxpayers. “No,” they said. “Absolutely not. Don’t be stupid.” If the government takes your money against your will and then uses it for something you don’t like – especially something you’re pretty sure they’re not supposed to be doing anyway – take it up with your elected representatives. You won’t find much help from the judicial branch.

Both the gathering of taxes and the distribution of state funds were simply too general and, you know… big. It was impossible to connect specific state expenses to specific taxpayer contributions in more than a theoretical way – like identifying which raindrops were responsible for a flood weeks later. Besides, every act of legislation, particularly when it involves spending, potentially impacts the economy. Maybe the very act you’re opposing is actually lowering your taxes somehow – did you think of that, Little Miss Lawsuit-Pants?

Honey, Have You Seen My Precedent?

That's Me In The CourtroomThis reasoning remained largely unchallenged for several decades, at least directly. In a few cases involving church-state issues in relation to public education, however, it seems to have been pragmatically ignored.

Everson v. Board (1947) was initiated by a taxpayer who didn't like state funds being used to pay bus fare to religious schools. The Court ruled against him, but not for lack of standing. Neither the majority opinion nor Justice Robert Jackson’s dissent questioned the plaintiff’s right to bring the complaint; the case was determined entirely on grander constitutional grounds.

The plaintiffs in McCollum v. Board (1948) were parents of children in the district, but also filed as taxpayers who didn't want their money used to support “released time” programs for religious instruction during the school day. Justice Robert Jackson’s concurrence addressed the issue of taxpayer concerns, finding that the cost of the program was negligible (unlike the bus fare issue in Everson). What he did not suggest was that taxpayer status itself was insufficient to bring the suit to begin with. The majority opinion itself focused on compulsory education laws and the role of parents as advocates for their children. Taxpayer status was simply not a factor.    

A few years later in Zorach v. Clauson (1952), parents who opposed “released time” programs during the school day (but not actually on school grounds) claimed standing both as parents and taxpayers. Nothing in the record indicates anyone challenged this, and no one even mentioned Mellon.

Just to keep everyone on their toes, however, that same year, in Doremus v. Board of Education (1952), the Court shot down plaintiffs opposed to a New Jersey law mandating that Bible verses from the Old Testament be read to students at the beginning of each school day. One had filed suit as a parent, but the child in question didn’t seem sufficiently traumatized to establish “injury,” and by the time the case reached the Supreme Court, they’d graduated anyway – rendering that parent’s complaint moot in the eyes of the Court. The other had filed as a taxpayer, which the Court declared insufficient to establish standing.

Choosing My ConfessionUnlike in Everson, there was no specific legislative outlay of funds in Doremus for a taxpayer to challenge. Daily Bible-reading didn’t actually cost anything extra; school budgets stayed pretty much the same whether the pushed Old Testament theology on students or not. With no qualified plaintiff, the Court saw no need to rule on grander constitutional questions. (Dissenters actually argued that schools using their limited time and resources to promote faith instead of, say… math or reading was in fact of interest to taxpayers, but the majority was not convinced. The Supremes have rarely proven sympathetic towards Rune Goldberg arguments – it looks for immediate cause and effect whenever possible, and “coulda been studying the demise of the Whigs instead” simply wasn’t compelling.)

It Followed Her To School One Day (Which Was Against The Rules)

In the early 1960s, the Court struck down several varieties of state-sponsored prayer and Bible-reading in public schools. In Engel v. Vitale (1962), Abington v. Schempp (1963), and Chamberlin v. Dade County Board of Public Instruction (1964), the plaintiffs were each time parents of school-aged children who objected to this particular mixture of church and state. Their status as taxpayers was periodically referenced in records, but never as the crux of their standing before the courts.

What did emerge, however, in the Supreme Court’s Engel decision (and quoted in Abington the following year) was a critical distinction in how the twin religion clauses of the First Amendment should be approached:

Although these two clauses may, in certain instances, overlap, they forbid two quite different kinds of governmental encroachment upon religious freedom. The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce non-observing individuals or not…

When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion…

The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its “unhallowed perversion” by a civil magistrate.

Oh No I Said Too Much

The twin religion clauses are often portrayed as pulling against one another, but Justice Black insisted, rather, that they in fact operate on two entirely different levels. “Free Exercise” constrains what the government can do that might interfere with sincerely held beliefs. It’s intended to allow personal pursuit of the divine as long as the general good is not overly compromised. It’s pragmatic and statutory. “Establishment,” on the other hand, is grander and more idealistic. It proclaims a principled division between the secular and the divine – between man’s laws and the whispers of the spirit. In so doing, it protects both.

Government sacrifices credibility the moment it dabbles in religious messaging, thus elevating some of its citizens over others and eroding the social contract. Religion, on the other hand, can benefit immensely from government sponsorship; faith rarely survives it.

Or so the Court has repeatedly suggested, at least until recently.

So... You Mentioned Standing?

What does this have to do with taxpayer standing in the courts? Everything. Establishment is the very first protection of the entire Bill of Rights, as well it should be. At the same time, it’s not quite like the other protections. More than free speech, a free press, freedom of assembly, or the right to complain – more, even, than the free exercise of religion, the Establishment Clause seeks a grander right than those guaranteed to one citizen at a time. It claims for American citizens the right to render unto Caesar only the things that are Caesar’s and render unto God the things that are truly God’s – whatever those might be.

Governmental violations of such a thing, then, will not always work the same as other forms of state intrusion or overreach. They often arrive as angels of light  - generalized benefits disproportionately assisting religious institutions, rituals meant to acknowledge the dominance of some faiths over others, or public displays reinforcing the majority culture at the expense of those on the outside looking in. What makes Flast such an odd little outlier of a case is the Court’s stretch to recognize and accommodate this difference in objective, legal terms.

I guess we should probably get to the actual case then, huh?

Get There From Here

NEXT TIME: Fast v. Cohen (1968) - Part Two: That's Me In The Courtroom

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