Winkler v. Gates

• Decision Date: 04 April 2007
• Docket Number: No. 05-3451.,05-3451.
• Parties: Eugene WINKLER, Gary Gersen, Timuel Black, Mary Cay Marubio, and C. Douglas Ferguson, Plaintiffs-Appellees, v. Robert M. GATES, Secretary of Defense, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

481 F.3d 977

Eugene WINKLER, Gary Gersen, Timuel Black, Mary Cay Marubio, and C. Douglas Ferguson, Plaintiffs-Appellees, v. Robert M. GATES, Secretary of Defense, Defendant-Appellant.

No. 05-3451.

United States Court of Appeals, Seventh Circuit.

Argued April 6, 2006.

Decided April 4, 2007.

Adam D. Schwartz (argued), Roger Baldwin Foundation of ACLU, Inc., Chicago, IL, for Plaintiffs-Appellees.

Lowell Sturgill (argued), Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, for Defendant-Appellant.

Erik S. Jaffe, Washington, DC, for Amicus Curiae, American Legion

George A. Davidson (argued), Savvas Foukas, Hughes, Hubbard & Reed, New York, NY, for Amicus Curiae, Boy Scouts of America

John Tuskey, American Center for Law & Justice, Virginia Beach, VA, for Amicus Curiae, American Center for Law & Justice

Robert F. McDonnell, Office of the Attorney General, Richmond, VA, for Amicus Curiae, Commonwealth of Virginia

William H. Hurd, Troutman Sanders, Richmond, VA, for Amicus Curiae, John Warner, Senator, Frank R. Wolf, Congressman, Bob Goodlatte, Congressman, Tom Davis, Congressman, Eric Cantor, Congressman

John H. Findley, Pacific Legal Foundation, Sacramento, CA, for Amicus Curiae, Pacific Legal Foundation

Eric A. Isaacson, Lerach, Coughlin, Stoia, Geller, Rudman & Robbins, San Diego,

CA, for Amicus Curiae, Unitarian Universalist Association

Ayesha Khan, Americans United for Separation of Church and State, Washington, DC, for Amicus Curiae, Americans United for Separation of Church and State

Before BAUER, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge.

This appeal presents another variation on the question whether taxpayers have standing to challenge a governmental action that allegedly violates the Establishment Clause—an issue that arises with some regularity. See Freedom from Religion Foundation, Inc. v. Chao, 433 F.3d 989 (7th Cir.2006), cert. granted sub nom. Hein v. Freedom from Religion Foundation, Inc., ___ U.S. ___, 127 S.Ct. 722, 166 L.Ed.2d 559 (2006) (No. 06-157); Hinrichs v. Bosma, 440 F.3d 393 (7th Cir.2006); Laskowski v. Spellings, 443 F.3d 930 (7th Cir.2006), as modified on rehearing, 456 F.3d 702 (7th Cir.2006). Each of these cases addresses challenging issues in an area of law in which the law is by no means clear.

Here, the taxpayers' target is a federal statute, 10 U.S.C. § 2554, that requires the United States military to assist the Boy Scouts of America (BSA) organization with its Jamboree, a national event held every four years. Plaintiff Eugene Winkler and others (to whom we refer collectively as Winkler) sued the Secretary of Defense claiming that the Jamboree statute violates the Establishment Clause because it requires the government to support an organization—BSA—that conditions membership upon a belief in God and thus that excludes believers in religions that are not based on one or more Deities, agnostics, and atheists. The Secretary moved to dismiss on the ground that taxpayer standing did not exist on these facts, but the district court ruled that standing was proper. It then found that BSA is a religious organization and that the direct public subsidy of the Jamborees violated the Establishment Clause.

We conclude that Winkler does not have standing to challenge the Jamboree statute. We therefore do not reach the complex question whether aid to a civic organization that conditions membership on a particular religious belief but that does not otherwise exclude people from its activities violates the Establishment Clause.

I

Standing jurisprudence, as the Supreme Court has explained, contains two strands: Article III standing, which enforces the Constitution's case-or-controversy requirement, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-62, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); and prudential standing, which embodies "`judicially self-imposed limits on the exercise of federal jurisdiction,' Allen [v. Wright], 468 U.S. [737,] 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 [(1984)]." Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11-12, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). As the Lujan Court put it, 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. 504 U.S. at 560-61, 112 S.Ct. 2130. Prudential standing is somewhat harder to define, but Newdow "explained that prudential standing encompasses `the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked.'" 542 U.S. at 12, 124 S.Ct. 2301 (quoting Allen, 468 U.S. at 751, 104 S.Ct. 3315). It is the latter branch of standing doctrine that concerns us in this appeal.

At one time, the Supreme Court did not recognize any doctrine of taxpayer standing in federal court. A taxpayer's stake in any government action, the Court pointed out, "is shared with millions of others, is comparatively minute and indeterminable, and the effect upon future taxation, of any payment out of the funds, [is] so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity." Frothingham v. Mellon, 262 U.S. 447, 487, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). See also Doremus v. Bd. of Educ. of Borough of Hawthorne, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952). This restraint on standing remains the general rule today. See, e.g., Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130.

Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), recognized a narrow but important modification to the Frothingham rule. In Flast, the Court began by addressing the question whether Frothingham had announced a constitutional ban against taxpayer standing, derived from Article III, or if "the Court was simply imposing a rule of self-restraint which was not constitutionally compelled." 392 U.S. at 92, 88 S.Ct. 1942. Although the government there argued that Frothingham had been constitutionally compelled, id., the Court noted that the reasons given in the earlier case "suggest[ed] that the Court's holding rest[ed] on something less than a constitutional foundation." Id. at 93, 88 S.Ct. 1942. In the end, after noting that standing, like the other justiciability doctrines, involves a "blend of constitutional requirements and policy considerations," id. at 99, 88 S.Ct. 1942, the Court found that there is "no absolute bar in Article III to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs," id. at 101, 88 S.Ct. 1942. Put differently, although Article III may usually bar taxpayer standing, it does not always have that effect. Cf. DaimlerChrysler Corp. v. Cuno, ___ U.S. ___, ___-___, 126 S.Ct. 1854, 1861-63, 164 L.Ed.2d 589 (2006) (rejecting state taxpayer standing to challenge state law on Commerce Clause grounds). The Flast Court described the concededly limited set of cases in which a litigant would have standing to assert claims solely in her capacity as a taxpayer:

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 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. . . . Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged.

392 U.S. at 102-03, 88 S.Ct. 1942. The plaintiffs in Flast wanted the court to enjoin the expenditure of federal funds under the Elementary and Secondary Education Act of 1965. Those funds, they alleged, were being used to support religious schools in violation of the Establishment Clause. The Court found that the required nexus existed where the constitutional infringement alleged amounted to a direct violation of the Establishment Clause. Id. at 103-04, 88 S.Ct. 1942. The Court distinguished Frothingham as a challenge under the Due Process Clause, which, unlike the Establishment Clause, does not impose a specific limitation on Congress's power to tax and spend. Id. at 104-05, 88 S.Ct. 1942. In the present case, Winkler is claiming that a particular statute violates the Establishment Clause. Just as in Flast, that is enough to show the required nexus between his status as a taxpayer and the alleged constitutional infringement.

The more difficult question is whether the Jamboree statute is the type of legislative enactment that the Flast Court had in mind. Is it an "exercise[] of congressional power under the taxing and spending clause of Art. I, § 8," or do we have only an "incidental expenditure of tax funds in the administration of an essentially regulatory statute"? 392 U.S. at 102-03, 88 S.Ct. 1942. The Supreme Court has provided some guidance for the way in which that question should be approached. The two most important cases for present purposes are Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), and Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988).¹

In Valley Forge, the plaintiffs challenged the decision of the Secretary of Health, Education, and Welfare to transfer a defunct property that had once been a military hospital to Valley Forge Christian College. The Secretary was authorized to make that decision under a federal statute permitting the transfer of surplus property to private and public entities...