Legal Standing Under the First Amendment’s
Establishment Clause
Cynthia Brougher
Legislative Attorney
September 15, 2009
Congressional Research Service
7-5700
www.crs.gov
R40825
CRS Report for Congress
P
repared for Members and Committees of Congress
Legal Standing Under the First Amendment’s Establishment Clause
Summary
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 under
the Establishment Clause must meet a threshold requirement known as standing, the legal
principle that governs whether an individual is the proper party to raise an issue before the courts.
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 that can
be redressed by the lawsuit in order to bring that case to court. 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.
The Court has made some exceptions to the general rules of standing and specifically allowed
taxpayer standing for certain 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.
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,
including 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 and the implications of
the Court’s 2007 decision in Hein v. Freedom From Religion Foundation, which further limited
the circumstances under which Establishment Clause challenges could be brought. The report
also discusses Salazar v. Buono, an Establishment Clause case scheduled for arguments before the
Court in October 2009.
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Legal Standing Under the First Amendment’s Establishment Clause
Contents
Legal Issues Related to Standing Generally ................................................................................. 1
Citizen Standing.................................................................................................................... 2
Taxpayer Standing................................................................................................................. 2
Prudential Standing ............................................................................................................... 3
Congress’s Role in Standing Requirements.................................................................................. 4
Standing in Establishment Clause Cases...................................................................................... 4
Litigation Arising Under the Taxing and Spending Clause ..................................................... 5
Litigation Arising Under the Property Clause ........................................................................ 7
Litigation of Issues Raised on Behalf of Another Individual .................................................. 8
Litigation Related to Executive Branch Actions..................................................................... 8
Future Developments: Salazar v. Buono ...................................................................................... 9
Contacts
Author Contact Information ...................................................................................................... 11
Congressional Research Service
Legal Standing Under the First Amendment’s Establishment Clause
he Establishment Clause of the First Amendment to the U.S. Constitution provides that
“Congress shall make no law respecting an establishment of religion.... ”1 The
T Establishment Clause prohibits government actions that would provide preferential
treatment of one religion over another or preferential treatment of religion generally over
nonreligion.2 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 and the implications of the Court’s
2007 decision in Hein v. Freedom From Religion Foundation, which further limited the
circumstances under which Establishment Clause challenges could be brought. The report also
discusses Salazar v. Buono, an Establishment Clause case scheduled for arguments before the
Court in October 2009.
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.3 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. 4 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.”5 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.
1 U.S. Const. amend. I.
2 See Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968).
3 See U.S. Const. art. III, § 2, cl. 1.
4 There are generally three constitutionally required elements to standing: (1) the individual must have personally
suffered an actual or threatened injury; (2) the injury must be fairly traced to the challenged action; and (3) the injury
must be likely to be redressed by a favorable decision. See Valley Forge Christian College v. Americans United for
Separation of Church and State, 454 U.S. 464, 472 (1982); Allen v. Wright, 468 U.S. 737, 751 (1984); Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
5 Flast v. Cohen, 392 U.S. 83, 99 (1968). “When standing is placed in issue in a case, the question is whether the person
whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue
itself is justiciable. Thus, a party may have standing in a particular case, but the federal court may nevertheless decline
to pass on the merits of the case.” Id. at 99-100.
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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.6 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.7 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.”8 The Court held that the
committee lacked standing to raise the claim.9 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.10
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).11
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. 12 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.13 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
6 See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974).
7 Id. at 209 (internal quotations omitted).
8 Id. at 212 (internal citations omitted).
9 Id. at 209 (internal citations omitted).
10 See id. at 217. “The Court has previously declined to treat ‘generalized grievances’ about the conduct of Government
as a basis for taxpayer standing.” Id. (citing Flast v. Cohen, 392 U.S. 83 (1968)). The Court noted its earlier ruling in
another case brought under the Incompatibility Clause, which held that private individuals must show actual or
imminent danger of a direct injury resulting from the government action challenged, not “merely a general interest
common to all members of the public.’” Id. at 219 (citing Ex parte Levitt, 302 U.S. 633 (1937)).
11 See Flast, 392 U.S. 83 (1968).
12 Frothingham v. Mellon, 262 U.S. 447 (1923).
13 Id. at 487.
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the result of its enforcement and not merely that he suffers in some indefinite way in common
with people generally.”14
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).15 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.16 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.”17 The Court has continued
to apply this standard in taxpayer cases.18
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.”19 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;20 (2) the individual may not litigate generalized
grievances shared by a large group of individuals;21 and (3) the individual generally may not
assert the interest of another to challenge a government action.
14 Id. at 488.
15 See Flast, 392 U.S. at 92 (“confusion has developed as commentators have tried to determine whether Frothingham
establishes a constitutional bar to taxpayer suits or whether the Court was simply imposing a rule of self-restraint which
was not constitutionally compelled.”).
16 Id. at 102.
17 Id. at 102-03.
18 See, e.g., United States v. Richardson, 418 U.S. 166 (1974) (denying standing to a taxpayer attempting to challenge
the secret nature of Central Intelligence Agency expenditures because the challenge would be an improper attempt to
litigate generalized grievances); Schlesinger, 418 U.S. 208 (denying standing to taxpayers attempting to challenge
simultaneous service of Members of Congress in the Armed Forces Reserves because the challenge was not brought
under the Taxing and Spending Clause).
19 Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99-100 (1979).
20 See Association of Data Processing Service Organization v. Camp, 397 U.S. 150, 153 (1970).
21 See Richardson, 418 U.S. at 173-76.
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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.22 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.23 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.24 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.25 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.”26
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.”27 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.”28
22 See, e.g., Endangered Species Act, P.L. 93-205, § 11(g), 16 U.S.C. § 1540(g). The Administrative Procedure Act
provides for judicial review of agency actions. See 5 U.S.C. § 702 (“person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to
judicial review thereof.”).
23 See Association of Data Processing Service Organization, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159
(1970).
24 See Federal Election Commission v. Akins, 524 U.S. 11, 20 (1998) (“Nor do we agree ... that Congress lacks the
constitutional power to authorize federal courts to adjudicate this lawsuit. Article III, of course, limits Congress’ grant
of judicial power to ‘cases’ or ‘controversies.’ That limitation means that respondents must show, among other things,
an ‘injury in fact’....”) (FEC).
25 See, e.g., Public Citizen v. Department of Justice, 491 U.S. 440, 449 (1989); Havens Realty Corp. v. Coleman, 455
U.S. 363, 373-74 (1982).
26 FEC, 524 U.S. at 25.
27 Richardson, 418 U.S. at 179.
28 Id.
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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.29 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.30
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.31 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.32
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.33 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.”34 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.35 As a result, the taxpayer could not
suffer a direct injury by such an action.36
29 See Flast, 392 U.S. at 105.
30 See Valley Forge Christian College, 454 U.S. 464 (1982) (refusing to allow a taxpayer challenge of government
transfer of property to a sectarian institution without charge because the action was taken by an executive agency
exercising power under the Property Clause); Hein v. Freedom from Religion Foundation, 551 U.S. 587 (2007)
(refusing to allow a taxpayer challenge of activities of the White House Office of Faith-Based and Community
Initiatives because the funding was made through discretionary executive spending).
31 See Flast, 392 U.S. at 103-04.
32 Flast, 392 U.S. 83.
33 Id. at 92-94.
34 Id. at 101.
35 Id. at 91.
36 Id. at 92.
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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.”37 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.”38 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.”39
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.40 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.41 Standing to
challenge actions related to the Establishment Clause is not always recognized in non-federal
actions, though. The Court refused to recognize standing for a taxpayer seeking to challenge a
state statute that required daily Bible reading at public schools.42 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.”43 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.”44 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.45
37 Id. at 102.
38 Id. at 103.
39 Id. at 104.
40 See Crampton v. Zabriskie, 101 U.S. 601, 609. See also Frothingham, 262 U.S. at 486 (“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.”).
41 See Everson v. Board of Education, 330 U.S. 1 (1947).
42 Doremus v. Board of Education, 342 U.S. 429 (1952).
43 Id. at 433.
44 Id. at 432.
45 Id. at 434.
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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.46 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.47
Congress had authorized the Secretary of Health, Education, and Welfare to dispose “of surplus
real property ‘for school, classroom, or other educational use.’”48 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.49 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.50 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.”51 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.52
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.”53 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.54
46 U.S. Const. art. IV, § 3, cl. 2 (“The Congress shall have Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other Property belonging to the United States.”).
47 454 U.S. 464 (1982).
48 Id. at 467 (quoting the Federal Property and Administrative Services Act of 1949, 63 Stat. 387, as amended, 40
U.S.C. § 484(k)(1)).
49 Id. at 468.
50 Id. at 472-76.
51 Id. at 488 (quotations and citations omitted).
52 Id. at 488-89.
53 Id. at 486.
54 Id. at 486-87 (“Their claim that the Government has violated the Establishment Clause does not provide a special
license to roam the country in search of governmental wrongdoing and to reveal their discoveries in federal court. The
federal courts were simply not constituted as ombudsmen of the general welfare.”).
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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. 55 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.56 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.57 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.58 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.59 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.”60 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.”61 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.”62
55 Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004).
56 Id. at 16-18.
57 See also Allen, 468 U.S. at 751.
58 See Newdow v. U.S. Congress, 313 F.3d 500, 502 (9th Cir. 2002).
59 Hein, 551 U.S. at 592-94.
60 Id. at 604.
61 Id. at 605.
62 Id.
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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.63 The opinion noted that the Court previously had recognized taxpayer
standing to challenge expenditures administered by executive officials.64 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.”65 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.”66 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.”67 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.68 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.69
Future Developments: Salazar v. Buono
In October 2009, the Court will hear arguments in Salazar v. Buono, an Establishment Clause
case involving the display of a large cross that stands on the Mojave National Preserve in
California, which is managed by the National Park Service (NPS).70 The cross display had been
erected by the Veterans of Foreign Wars (VFW) as “a memorial to fallen service members” in
63 Id. at 605-09.
64 See id. at 606-07 (discussing Bowen v. Kendrick, 487 U.S. 589 (1988) (holding that taxpayers had standing to
challenge a federal statute that authorized federal grants to religious organizations)).
65 Id. at 607 (internal quotations omitted).
66 Id. at 610.
67 Id. at 611.
68 Pedreira v. Kentucky Baptist Homes for Children, Inc., 553 F. Supp. 2d 853 (2008); Hinrichs v. Speaker of the
House of Representatives of the Indiana General Assembly, 506 F.3d 584 (7th Cir. 2007).
69 Americans United for Separation of Church and State v. Prison Fellowship Ministries, 509 F.3d 406 (2007).
70 See Buono v. Kempthorne, 527 F.3d 758 (9th Cir. 2008), cert. granted, 77 USLW 3243 (U.S. Feb. 23, 2009).
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1934.71 NPS denied a request to erect a Buddhist shrine near the cross in 1999, leading to
controversial debate over whether the cross is constitutional under the Establishment Clause.72
After NPS indicated that the cross would be removed to avoid constitutional problems, Congress
passed legislation that prohibited the use of federal funds to remove the cross73 and passed
additional legislation that designated the cross and adjoining land as a national memorial to World
War I veterans.74
In 2001, a former employee (Frank Buono) of the preserve filed a lawsuit alleging that the cross
display violated the Establishment Clause, particularly because the cross was displayed on public
property on which displays of other religious symbols were not also permitted. Buono “does not
generally object to displays of crosses, but instead has only the ideological objection that public
lands on which crosses are displayed should also be public fora on which other persons may
display other symbols.”75 The district court held the display on public land to be a violation of the
Establishment Clause and issued an injunction that prohibited the government from permitting the
display.76 Congress subsequently enacted legislation directing the conveyance of approximately
one acre of land on which the cross was displayed to the VFW.77 In a second lawsuit challenging
that land transfer, the U.S. Court of Appeals for the 9th Circuit held that the transfer of land did
not cure the Establishment Clause violation and that the transfer could not “be validly executed
without running afoul of the injunction.”78 The court reasoned that “carving out a tiny parcel of
property in the midst of this vast Preserve ... will do nothing to minimize the impermissible
governmental endorsement.”79 The 9th Circuit noted, but did not adopt, the U.S. Court of Appeals
for the 7th Circuit’s presumption in a previous case that transfer of land with a religious symbol
was sufficient to avoid an Establishment Clause violation.80 The 9th Circuit reasoned that
precedent related to public displays of religious symbols indicated a need for fact-specific
analysis of such displays rather than adoption of a presumption as the 7th Circuit did.81
Buono raises two issues for the Court to consider: (1) whether a person who objects to the lack of
an open forum for displays rather than the display itself has standing to litigate such a lawsuit,
and (2) whether it was proper for the 9th Circuit to invalidate the statute ordering the transfer of
the land. Because a litigant must have standing to pursue a lawsuit, the Court will address the
second issue regarding the effect of the transfer of the land only if it finds that Buono has
standing to sue.
71 Id.
72 For a legal analysis of the constitutionality of public displays of religious symbols, see CRS Report RS22223, Public
Display of the Ten Commandments and Other Religious Symbols, by Cynthia Brougher.
73 P.L. 106-554, § 133, 114 Stat. 2763 (2000).
74 P.L. 107-117, § 8237(a), 115 Stat. 2278 (2002).
75 Petition for a Writ of Certiorari (No. 08-472) at 9, Salazar v. Buono, cert. granted, 129 S.Ct. 1313 (2009). A copy of
the petition is available at http://www.scotusblog.com/wp/wp-content/uploads/2009/02/08-472_pet.pdf.
76 Buono v. Norton, 212 F. Supp. 2d 1202 (C.D. Cal. 2002), aff’d, 371 F.3d 543 (9th Cir. 2004).
77 P.L. 108-87, § 8121, 117 Stat. 1100.
78 Buono v. Kempthorne, 527 F.3d 758, 783 (9th Cir. 2008).
79 Id.
80 Id. at 779, fn 13.
81 See McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005); Van Orden v. Perry,
545 U.S. 677 (2005).
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Legal Standing Under the First Amendment’s Establishment Clause
It appears that Buono’s standing to sue in this case may be open to question. The transfer of land
occurred under the Property Clause rather than the Taxing and Spending Clause, and Buono does
not appear to have a specific legal interest in the land at issue or other related individualized
injury. In Valley Forge, the Court held that taxpayers do not have standing to challenge
government transfers of land used by private parties for religious purposes.82 Thus, the case could
possibly be dismissed for lack of standing to challenge land transfers under the Property Clause.
Furthermore, some may question whether Buono has suffered a legally recognized individualized
injury as a result of the cross display. The Court has recognized standing for litigants claiming
injury based on non-economic harms (e.g., environmental, aesthetic, etc.), particularly in
environmental cases where the litigant’s enjoyment of a park or recreational area is threatened by
pollution or other action.83 Even in such cases, whatever harm might be alleged, regardless of
whether it has a financial or psychological effect, must affect the person claiming the injury
directly.84 The Court’s previous holdings regarding third-party standing suggest that Buono may
lack standing on these grounds as well. In this case, it appears that he is acting on behalf of others
who may want to erect a different religious display on the land. As a former employee, Buono
may have a generalized interest in the operation of the preserve, but because Buono has testified
that he is not offended by a religious symbol being displayed on public property, he may not
appear to the Court to be personally harmed by the display.85
Author Contact Information
Cynthia Brougher
Legislative Attorney
cbrougher@crs.loc.gov, 7-9121
82 See Valley Forge Christian College, 454 U.S. 464.
83 See United States v. SCRAP, 412 U.S. 669 (1973) (recognizing standing for alleged injury based on harm to local
environment and resources used and enjoyed by litigants); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
(requiring concrete plans of future visits to the site of the challenged action to indicate a direct and imminent injury to
the litigant sufficient to meet standing requirements).
84 See, e.g., American Civil Liberties Union v. City of St. Charles, 794 F.2d 265, 268 (7th Cir. 1986) (explaining that
distress or dislike of a challenged action is insufficient to confer standing and recognizing standing if the litigant can
demonstrate that the action has led him or her to alter behavior accordingly); Saladin v. Milledgeville, 812 F.2d 687,
691 (11th Cir. 1987) (claims of constitutional violations are insufficient to establish standing and must be accompanied
by “a personal injury suffered as a consequence of the violation beyond the psychological consequences of observing
the conduct with which he or she disagrees”).
85 Petition for a Writ of Certiorari, Salazar v. Buono, 77 U.S.L.W. 3467 (No. 08-472).
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