MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS
STEARNS, District Judge.
On January 12, 2009, the American Civil Liberties Union of Massachusetts (ACLU) brought this lawsuit against officials of the U.S. Department of Health and Human Services (HHS), alleging that defendants are violating the Establishment Clause of the First Amendment by allowing the United States Conference of Catholic Bishops (USCCB) to impose a religion-based restriction on the disbursement of taxpayer-funded services.
The facts, viewed in the light most favorable to the ACLU as the non-moving party, are as follows. In 2000, with the noble goal of suppressing human trafficking, Congress passed the Trafficking Victims Protection Act (TVPA), 22 U.S.C. § 7105 et seq.
HHS initially implemented the victims' services mandate of the TVPA by making grants to private providers on a case-by-case basis. In November of 2005, HHS decided to award a master contract to a single provider on a per capita basis. On February 23, 2006, the USCCB submitted
Compl. ¶ 46.
"Would a `don't ask, don't tell' policy work regarding the exception? What if a subcontractor referred victims supported by stipend to a third-party agency for such services?" Id. at ¶ 49. The USCCB responded unequivocally. "We cannot be associated with an agency that performs abortions or offers contraceptives to our clients. If they sign the written agreement [the subcontract], the `don't ask, don't tell' wouldn't apply because they are giving an assurance to us that they wouldn't refer for or provide abortion service to our client using contract funding." Id. at ¶ 50. Despite this answer, in April of 2006, HHS awarded the master contract to the USCCB. Id. at ¶ 51.
The USCCB has enforced the "conscience exception" by incorporating language in its subcontractor agreements prohibiting NGOs from using TVPA funds for "referral for abortion services or contraceptive materials." Id. at ¶ 57. This restriction is also set out in the operations manual that the USCCB distributes to the provider NGOs. The manual flatly states that "program funding cannot be used for abortion services or contraceptive materials. Subcontractors will not be reimbursed for these services." Id. at ¶¶ 58-59.
Defendants move to dismiss the ACLU's Complaint pursuant to Fed.R.Civ.P.
The burden of establishing standing rests with the party invoking the jurisdiction of the federal courts. See Bennett v. Spear, 520 U.S. 154, 167-168, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).
Benjamin v. Aroostook Med. Ctr., Inc., 57 F.3d 101, 104 (1st Cir.1995) (internal citations omitted). See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (same).
An association has standing to bring a lawsuit on behalf of its members "when  at least one of its members possesses standing to sue in his or her own right;  the interests that the suit seeks to vindicate are pertinent to the objectives for which the organization was formed; and  neither the claim asserted nor the relief demanded necessitates the personal participation of affected individuals." Libertad v. Welch, 53 F.3d 428, 440 (1st Cir.1995). See also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The ACLU contends that it has associational standing by virtue of its members' status as federal taxpayers.
Until 1968, the law was clear that a taxpayer could not claim standing to challenge the constitutionality of a federal statute based on the use of his or her tax dollars to implement an allegedly unconstitutional practice or program.
Frothingham v. Mellon, 262 U.S. 447, 487, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). The Court backed away from this flat prohibition, however, in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). In Flast, the Court entertained an Establishment Clause challenge to the expenditure of federal funds "to finance instruction in reading, arithmetic, and other subjects in religious schools, and to purchase textbooks and other instructional materials for use in such schools." Id. at 85-86, 88 S.Ct. 1942.
The congressional act challenged in Flast set up a complicated mechanism under which local entities serving the educational needs of low income families submitted requests to state agencies for federal funds. The applications were approved based on a set of criteria established by the United States Commissioner of Education that permitted distribution of public financial aid to religious schools. Describing the Frothingham decision as "confus[ing]" and "critici[zed]," the Flast Court concluded that its holding was likely motivated by prudential concerns, and that there was "no absolute bar in Article III to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs." Id. at 92, 101, 88 S.Ct. 1942.
The Court then fashioned a two-part test to be applied in determining whether a taxpayer had a stake in a controversy over the expenditure of public funds sufficient to confer standing.
Id. at 102-103, 88 S.Ct. 1942.
The Flast Court found that the plaintiff taxpayers had satisfied both prongs of the test.
In its most recent taxpayer standing case, Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007), the Court cautioned that the Flast exception is "narrow" and must be applied with "rigor." Id. at 602, 603, 127 S.Ct. 2553 (plurality opinion) (citation omitted). See also Daimler-Chrysler Corp. v. Cuno, 547 U.S. 332, 347, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (declining to extend Flast to a taxpayer challenge to state investment tax credits alleged to discriminate against interstate commerce). It is worth noting that in applying the Flast exception, the Court has never permitted standing where the Spending Clause of Article I was not directly implicated.
Defendants offer three reasons why they believe that the ACLU lacks standing under the Flast exception: (1) the TVPA does not itself mandate spending in violation of the Establishment Clause; (2) the TVPA is not based solely on Congress's exercise of its powers under the Spending Clause; and (3) the ACLU cannot show a "direct dollar-and-cents injury." The court will address each of these arguments in turn.
It cannot be disputed that the TVPA does not directly mandate HHS to spend taxpayer money in violation of the Establishment Clause. The mechanism rather is more like the one created in Flast. The TVPA simply directs HHS to provide social services to victims of human trafficking. It does not order HHS to include religious organizations among the service providers (nor does it exclude them), nor does it specify the exact nature of the social services that are to be provided. Instead, these matters are left to the discretion of the Secretary. The TVPA does, however, make a specific annual appropriation (currently of "up to" $12.5 million) to carry out its victims' services mandate.
Supreme Court cases since Flast discussing taxpayer standing are admittedly confusing. They do, however, at least stake out the poles of the spectrum that divides what is authorized from what is not. At one pole is Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). In Valley Forge, the Court held that taxpayers did not have standing to challenge a decision by the Secretary of Health, Education, and Welfare (HEW) to give over a tract of surplus federal land to a Bible study college. See id. at 479, 102 S.Ct. 752. The Secretary based his decision on the authority bestowed by the Federal Property and Administrative Services Act of 1949. That Act authorized the Secretary to transfer surplus real property (in the Valley Forge case, land from a decommissioned
In refusing standing to plaintiff taxpayers, the Court noted that "the source of their complaint is not a congressional action, but a decision by HEW to transfer a parcel of federal property." Id. at 479, 102 S.Ct. 752. Because the transfer did not involve an exercise of the congressional spending power under Article I, but rather one of executive authority under the Property Clause of Article IV, it did not in the Court's estimation fall within the Flast exception. Id. at 480, 102 S.Ct. 752. The Court found that the link between the property transfer and any burden on the taxpayers was "at best speculative and at worst non-existent" because the government had acquired the property some three decades before the lawsuit was brought. Id. at 480 n. 17, 102 S.Ct. 752.
The other pole on the spectrum was planted six years later in Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988). In Kendrick, taxpayers brought Establishment Clause challenges, both facial and "as-applied," to the Adolescent Family Life Act (AFLA), 42 U.S.C. § 300z et seq. The AFLA appropriated money to be disbursed by HHS to community service groups, including religiously affiliated groups, working to discourage premarital sex and teen pregnancy. Kendrick, 487 U.S. at 593, 108 S.Ct. 2562. As the Court noted, "the AFLA expressly states that federally provided services in this area should promote the involvement of parents, and should emphasize the provision of support by other family members, religious and charitable organizations, voluntary associations, and other groups." Id. at 596, 108 S.Ct. 2562 (citation omitted).
The Court first rejected plaintiffs' facial challenge to AFLA, explaining that,
Id. at 602-604, 108 S.Ct. 2562 (internal citations and quotation marks omitted).
Turning to the "as-applied" challenge, the Court had little difficulty identifying a link between plaintiffs' status as taxpayers and the underlying congressional appropriation, even though the funds had ultimately been disbursed by the Secretary.
Id. at 619-620, 108 S.Ct. 2562 (internal citations omitted).
The Court, however, faulted the district court's approach for failing to identify more specifically those grantees who in its view were "pervasively sectarian," and therefore constitutionally suspect, although the Court agreed that from all appearances, some AFLA funds had been used "for constitutionally improper purposes." Id. at 620, 108 S.Ct. 2562. The Court remanded the case to the district court with the instruction that if it definitively found "that the Secretary has wrongfully approved certain AFLA grants, an appropriate remedy would be to require the Secretary to withdraw such approval." Id. at 622, 108 S.Ct. 2562.
That brings us, nineteen years later, to Hein. Plaintiffs in Hein objected to a 2001 Presidential Executive Order creating a White House Office of Faith-Based and Community Initiatives (OFBCI). See 551 U.S. at 593, 127 S.Ct. 2553. The purpose of the OFBCI as explained in the Order was to ensure that "private and charitable community groups, including religious ones... have the fullest opportunity permitted by law to compete on a level playing field, so long as they achieve valid public purposes." Id. at 594, 127 S.Ct. 2553, quoting Exec. Order No. 13199, 3 C.F.R. § 752 (2001 Comp.).
Plaintiffs, an organization of atheists and agnostics and three of its taxpayer members, objected to the use of Executive Branch funds by the OFBCI to hold regional conferences explaining federal grant opportunities to which religious and secular groups were invited. At the conferences, federal officials extolled the value of religiously-oriented social services. The Hein Court, however, disagreed with plaintiffs' premise that the congressional spending power had been diverted to religious purposes, noting that "Congress [had only] provided general appropriations to the Executive Branch to fund its day-to-day activities. These appropriations did not expressly authorize, direct, or even mention the expenditures of which [taxpayers] complain. Those expenditures resulted from executive discretion, not congressional action." Id. at 605, 127 S.Ct. 2553. The Court additionally noted that "[n]o congressional legislation specifically authorized the creation of the White House Office or the Executive Department Centers. Rather, they were `created entirely within the executive branch ... by Presidential executive order.' Nor has
In contrasting the general appropriation at issue in Hein with the specific appropriation of funds in Flast, the Court plurality, in an opinion authored by Justice Alito, found that
Id. at 605, 127 S.Ct. 2553. The Court plurality concluded that Flast had turned on a finding of congressional action, and declined to extend its holding to "purely executive expenditures" from discretionary funds appropriated for administrative expenses.
Justice Alito then turned to Kendrick, redoubling the focus on the distinction between general Executive Branch appropriations and the AFLA's designated appropriations.
Id. at 607, 108 S.Ct. 2562 (emphasis in original) (citation omitted). In rejecting respondents'"attempt to paint their lawsuit as a Kendrick-style as-applied challenge," the Court stated that the
Id. at 607-608, 108 S.Ct. 2562 (internal citation omitted).
This much at least seems clear. Hein "precludes standing when a taxpayer challenges a statute generally providing funding to the executive branch." Murray v. Geithner, 2010 WL 431730, at *2 (E.D.Mich. Feb. 2, 2010). It would also
Defendants' argument that for taxpayer standing to attach under Hein, the challenged appropriation must directly mandate the turnover of funds to religious organizations is not supported by the text of the Hein plurality decision. In commenting on Flast, Justice Alito observed that "[a]t around the time the [AFLA] was passed and [Flast] was decided, the great majority of nonpublic elementary and secondary schools in the United States were associated with a church.... Congress surely understood that much of the aid mandated by the statute would find its way to religious schools."
The issue is by no means open and shut, but the court is of the view that the ACLU has met its burden under Flast of showing a link between the congressional power to tax and spend and a possible violation of the Establishment Clause in the grant of public funds to the USCCB. As with the AFLA, the TVPA "is at heart a program of disbursement of funds pursuant to Congress' taxing and spending powers, and [plaintiff's] claims call into question how the funds authorized by Congress are being disbursed pursuant to the ... statutory mandate.... [T]here is thus a sufficient nexus between the taxpayer's standing as a taxpayer and the congressional exercise of taxing and spending power, notwithstanding the [discretionary] role the Secretary plays in administering the statute." Kendrick, 487 U.S. at 620, 108 S.Ct. 2562.
Sole Exercise of the Spending Power
Defendants next argue that taxpayer standing does not attach because in enacting the TVPA, Congress invoked two of its powers that are independent of the Spending Clause—the Commerce Clause, Article I, § 8,
Defendants nonetheless argue that for taxpayer standing to attach under Flast, Congress must have enacted the challenged legislation relying solely on the Spending Clause. That is, even if an exercise of the Spending Clause is a necessary predicate of a statute, standing does not exist when Congress in enacting legislation relies on additional provisions of the Constitution. Defendants point to the following sentence in Flast: "[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." Flast, 392 U.S. at 102, 88 S.Ct. 1942 (emphasis added).
"Only" is a flexible qualifier, the placement of which can dramatically alter the meaning of even a simple sentence.
See also Newdow v. Eagen, 309 F.Supp.2d 29, 39 (D.D.C.2004) (finding taxpayer standing to bring an Establishment Clause challenge to a federal statute authorizing funds to employ Senate and House chaplains where the statute was "at least in part an exercise of Congress's authority under the taxing and spending clause of U.S. Const. art. I, § 8.").
A case relied upon by defendants in this regard, Winkler v. Gates, 481 F.3d 977 (7th Cir.2007), is readily distinguishable. In Winkler, the Seventh Circuit considered an Establishment Clause challenge to a congressional statute directing the United States Military to assist the Boy Scouts of America in staging its quadrennial "Jamboree." Id. at 979.
Defendants' final argument is that the Complaint does not allege that any taxpayer monies have been spent to support religious activities. As defendants see it, the ACLU objects not to the services being provided through the USCCB, but to the fact that certain other services are not provided—namely, contraceptive materials and abortions. Defendants refer to the
If defendants are right—that this is a case not about the Establishment Clause, but about the issue of abortion—and not as the ACLU insists, about an alleged unconstitutional act by Congress, namely, the delegation of Congress's spending power to a religious organization to enforce its doctrinal views, then defendants have a perhaps dispositive point.
In closing, I do not pretend that Hein offers clear direction to lower courts as to how to draw the line between just enough congressional involvement to confer taxpayer standing and too little so as to deny it. I further recognize that the distinction between congressional and executive spending propounded in Hein may be unrealistic given the complexities of modern interactions between Congress and the Executive Branch. I have no present allegiance to either side of the debate, only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies. I also agree that a rule that has no enforcement mechanism is not a rule at all. Taxpayer standing may not be the best or the most desirable or even a necessary means of enforcing the separation of church and state, but unless the Supreme Court decrees differently, it is one of the principal tools available. The uncertainty of the scope of taxpayer standing necessarily invites decisions lacking in consistency. I have no doubt that many of my colleagues would (and will) in all good faith draw the line differently than have I. But until the Supreme Court gives definitive guidance, judges will have to decide using their best understanding of the law as it exists. That is what I have attempted to do here.
For the foregoing reasons, defendants' motion to dismiss will be DENIED. Within