Flast v. Cohen (1968)

A federal court ruled that Flast and the other plaintiffs did not have standing as taxpayers to challenge the use of federal funds for religious schools. “Standing“ is a legal requirement under which a person can only file suit if he or she has a personal stake in the outcome of the case. The plaintiffs then appealed to the Supreme Court.

In an 8-1 decision, the Supreme Court held that the taxpayers who brought suit to challenge the constitutionality of federal taxing and spending programs do have the necessary legal standing to obtain federal court review. Chief Justice Earl Warren wrote for the majority, citing the earlier case of Frothingham v. Mellon, 1923. In that case, Warren wrote, “this Court ruled that a federal taxpayer is without standing to challenge the constitutionality of a federal statute.… In this case, we must decide whether the Frothingham barrier should be lowered when a taxpayer attacks a federal statute on the ground that it violates the Establishment and Free Exercise Clauses of the First Amendment.“ Chief Justice Warren noted that, in contrast to Frothingham, the current case of Flast was about a violation of the Establishment Clause of the First Amendment, which prohibits any government action leading to the “establishment of religion.“ The Court concluded that the plaintiffs were appropriate plaintiffs because they had sufficient personal interest in preventing the use of their tax money for this purpose.

Justice John Harlan dissented. He argued that a taxpayer may refuse to pay a tax or may sue for return of a tax wrongfully collected, but may not sue to “challenge the constitutionality of the uses for which Congress has authorized the expenditure of public funds.“

The Supreme Court revisited the issues in Flast in 1982, when the Court decided Valley Forge College v. Americans United for Separation of Church and State. Congress had authorized the Secretary of Health, Education, and Welfare (HEW) to dispose of federal “surplus property.“ HEW transferred a former military hospital to a church-related college.

Americans United and several individuals brought suit in federal court, claiming that the transfer violated the Establishment Clause and made unconstitutional use of their tax dollars. In a 5-4 decision, the Supreme Court ruled that these plaintiffs did not have standing to sue. Justice William Rehnquist noted that the plaintiffs objected to a decision by HEW and not an action by Congress, and that they alleged no concrete personal injury.

In his dissent, Justice William Brennan wrote that “It may be that Congress can tax for almost any reason, or for no reason at all. There is, so far as I have been able to discern, but one constitutionally imposed limit on that authority. Congress cannot use tax money to support a church, or to encourage religion.“ Justice Brennan argued that there is no practical way for a taxpayer to challenge an unconstitutional expenditure when the tax is collected. “Surely, then, a taxpayer must have standing at the time that he learns of the Government's alleged Establishment Clause violation to seek equitable relief in order to halt the continuing and intolerable burden on his pocketbook, his conscience, and his constitutional rights.“