Winkler, Eugene v. Gates, Robert M. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3451
EUGENE WINKLER, GARY GERSEN, TIMUEL BLACK,
MARY CAY MARUBIO, and C. DOUGLAS FERGUSON,
Plaintiffs-Appellees,
v.
ROBERT M. GATES, Secretary of Defense,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99-2424—Blanche M. Manning, Judge.
____________
ARGUED APRIL 6, 2006—DECIDED APRIL 4, 2007
____________
Before BAUER, WOOD, and SYKES, Circuit Judges.
WOOD, Circuit Judge. This appeal presents another
variation on the question whether taxpayers have stand-
ing to challenge a governmental action that allegedly
violates the Establishment Clause—an issue that arises
with some regularity. See Freedom From Religion Founda-
tion, Inc. v. Chao, 433 F.3d 989 (7th Cir. 2006), cert.
granted sub nom. Hein v. Freedom From Religion Founda-
tion, Inc., 127 S.Ct. 722 (2006) (No. 06-157); Hinrichs v.
Bosma, 440 F.3d 393 (7th Cir. 2006); Laskowski v. Spell-
ings, 443 F.3d 930 (7th Cir. 2006), as modified on rehear-
2 No. 05-3451
ing, 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. Plain-
tiff Eugene Winkler and others (to whom we refer collec-
tively 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 Establish-
ment 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 organiza-
tion 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 re-
quirement, see Lujan v. Defenders of Wildlife, 504 U.S.
555, 559-62 (1992); and prudential standing, which
embodies “ ‘judicially self-imposed limits on the exercise of
No. 05-3451 3
federal jurisdiction,’ Allen [v. Wright], 468 U.S. [737,] 751
[(1984)].” Elk Grove Unified School Dist. v. Newdow, 542
U.S. 1, 11-12 (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. 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 in-
voked.’ ” 542 U.S. at 12 (quoting Allen, 468 U.S. at 751). 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 (1923). See also Doremus v.
Bd. of Educ. of Borough of Hawthorne, 342 U.S. 429(1952). This restraint on standing remains the general rule
today. See, e.g., Bennett v. Spear, 520 U.S. 154, 167 (1997);
Lujan, 504 U.S. at 560-61.
Flast v. Cohen, 392 U.S. 83 (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
4 No. 05-3451
was simply imposing a rule of self-restraint which was not
constitutionally compelled.” 392 U.S. at 92. 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 constitu-
tional foundation.” Id. at 93. In the end, after noting that
standing, like the other justiciability doctrines, involves
a “blend of constitutional requirements and policy con-
siderations,” id. at 99, 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. Put differently, although
Article III may usually bar taxpayer standing, it does not
always have that effect. Cf. DaimlerChrysler Corp. v.
Cuno, 126 S.Ct. 1854, 1861-63 (2006) (rejecting state
taxpayer standing to challenge state law on Commerce
Clause grounds). The Flast Court described the con-
cededly 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 enact-
ment 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 regula-
tory 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. The plaintiffs in Flast wanted the court
to enjoin the expenditure of federal funds under the
Elementary and Secondary Education Act of 1965. Those
No. 05-3451 5
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. 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. 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. 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 (1982), and Bowen v. Kendrick, 487 U.S. 589(1988).1
1
We recognize that the Court will have more to say about this
area in Freedom from Religion. The questions presented in that
case, however, reveal that no party is asking the Supreme Court
to expand taxpayer standing. Petitioners, represented by the
Solicitor General, phrase the question as follows: “Whether
taxpayers have standing under Article III of the Constitution to
challenge, on Establishment Clause grounds, the actions of
Executive Branch officials pursuant to an Executive Order,
(continued...)
6 No. 05-3451
In Valley Forge, the plaintiffs challenged the decision of
the Secretary of Health, Education, and Welfare to trans-
fer 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 that might make use of it. The
Supreme Court found that the plaintiffs had no stand-
ing to challenge the Secretary’s action in court, because
the challenged action was not an exercise of the taxing and
spending power. Instead, the statute authorizing the
administrative decision had relied upon Congress’s power
under the U.S. Constitution’s Property Clause, Art. IV,
§ 3, cl. 2. See 454 U.S. at 480. The Court took note of how
far removed the action that the executive took in Valley
Forge was from the imposition of a tax:
Although not necessary to our decision, we note that
any connection between the challenged property
transfer and respondents’ tax burden is at best specu-
lative and at worst nonexistent. Although public
funds were expended to establish Valley Forge
1
(...continued)
where the conduct at issue is financed only indirectly through
general appropriations legislation and no funds are disbursed to
any institutions or individuals outside the government.” Respon-
dents ask “Whether the standing principle recognized in Flast v.
Cohen, 392 U.S. 83 (1968), and reaffirmed unanimously in Bowen
v. Kendrick, 487 U.S. 605 (1988), permits taxpayers to challenge
on Establishment Clause grounds an expenditure of funds
pursuant to a congressional authorization when that expenditure
is fairly traceable to the allegedly unconstitutional conduct.”
Since, as we explain in this opinion, we conclude that standing
is lacking even under the theories the Freedom from Religion
respondents are urging the Court to adopt, we see no reason to
hold this case for the Court’s decision.
No. 05-3451 7
General Hospital, the land was acquired and the
facilities constructed 30 years prior to the challenged
transfer. . . . Moreover, each year of delay in disposing
of the property depleted the Treasury by the amounts
necessary to maintain a facility that had lost its value
to the Government.
Id. at 480 n.17. This footnote, while perhaps technically
dicta, sheds some light on why the Supreme Court saw
the statute in question as one based primarily (even if
not exclusively) on the Property Clause.
Six years after Valley Forge, the Supreme Court revis-
ited taxpayer standing in Bowen. In that case, taxpayers
claimed that a federal grant program that Congress had
enacted and had entrusted to an executive agency for
implementation violated the Establishment Clause. With-
out discussing standing at any length, the Court held that
the law was not unconstitutional on its face. 487 U.S. at
617-18. Turning to the taxpayers’ challenge to the law as
applied, however, the Court identified the first question as
whether the taxpayers had standing to pursue their claim.
Id. at 618. It concluded that they did:
We do not think, however, that appellees’ claim that
AFLA funds are being used improperly by individual
grantees is any less a challenge to congressional taxing
and spending power simply because the funding
authorized by Congress has flowed through and been
administered by the Secretary. Indeed, Flast itself
was a suit against the Secretary of HEW, who had
been given authority under the challenged statute to
administer the spending program that Congress had
created. . . . [W]e have not questioned the standing of
taxpayer plaintiffs to raise Establishment Clause
challenges, even when their claims raised questions
about the administratively made grants. . . . Nor is
this, as we stated in Flast, a challenge to “an inciden-
8 No. 05-3451
tal expenditure of tax funds in the administration of
an essentially regulatory statute.” The AFLA is at
heart a program of disbursement of funds pursuant to
Congress’ taxing and spending powers, and appellees’
claims call into question how the funds authorized by
Congress are being disbursed pursuant to the AFLA’s
statutory mandate. In this litigation there is suffi-
cient nexus between the taxpayer’s standing as a
taxpayer and the congressional exercise of taxing and
spending power, notwithstanding the role the Secre-
tary plays in administering the statute.
Id. at 619-20 (internal citation omitted). The question for
us, briefly put, is whether the Jamboree statute is more
like the surplus property act in Valley Forge or more like
the AFLA program in Bowen. (Although this aspect of
prudential standing requires us to peek at the merits of
the case, this overlap is inevitable under existing law,
which requires us to ask whether the expenditure of funds
was or was not “incidental.”)
II
Whether a party has standing to bring a “case or contro-
versy” before the court is a question of law that this court
reviews de novo. Wisconsin Right to Life, Inc. v. Schober,
366 F.3d 485, 489 (7th Cir. 2004). If there were factual
questions, we would review the district court’s factual
determinations for clear error. Id.Because the Jamboree statute, 10 U.S.C. § 2554, is
central to our decision, we begin with its text. The statute
has been altered several times over the years, most
recently during the pendency of this litigation. For the
convenience of the reader, we reproduce it in full, despite
its length:
No. 05-3451 9
§ 2554. Equipment and other services: Boy Scout
Jamborees
(a) The Secretary of Defense is hereby authorized,
under such regulations as he may prescribe, to lend to
the Boy Scouts of America, for the use and accommoda-
tion of Scouts, Scouters, and officials who attend any
national or world Boy Scout Jamboree, such cots,
blankets, commissary equipment, flags, refrigerators,
and other equipment and without reimbursement,
furnish services and expendable medical supplies, as
may be necessary or useful to the extent that items
are in stock and items or services are available.
(b) Such equipment is authorized to be delivered at
such time prior to the holding of any national or
world Boy Scout Jamboree, and to be returned at such
time after the close of any such jamboree, as may be
agreed upon by the Secretary of Defense and the Boy
Scouts of America. No expense shall be incurred by
the United States Government for the delivery, return,
rehabilitation, or replacement of such equipment.
(c) The Secretary of Defense, before delivering such
property, shall take from the Boy Scouts of America,
good and sufficient bond for the safe return of such
property in good order and condition, and the whole
without expense to the United States.
(d) The Secretary of Defense is hereby authorized
under such regulations as he may prescribe, to pro-
vide, without expense to the United States Govern-
ment, transportation from the United States or mili-
tary commands overseas, and return, on vessels of the
Military Sealift Command or aircraft of the Air Mobil-
ity Command for (1) those Boy Scouts, Scouters, and
officials certified by the Boy Scouts of America, as
representing the Boy Scouts of America at any na-
tional or world Boy Scout Jamboree, and (2) the
10 No. 05-3451
equipment and property of such Boy Scouts, Scouters,
and officials and the property loaned to the Boy Scouts
of America, by the Secretary of Defense pursuant to
this section to the extent that such transportation
will not interfere with the requirements of military
operations.
(e) Before furnishing any transportation under sub-
section (d), the Secretary of Defense shall take from
the Boy Scouts of America, a good and sufficient bond
for the reimbursement to the United States by the
Boy Scouts of America, of the actual costs of transpor-
tation furnished under this section.
(f ) Amounts paid to the United States to reimburse it
for expenses incurred under subsection (b) and for the
actual costs of transportation furnished under sub-
section (d) shall be credited to the current applicable
appropriations or funds to which such expenses and
costs were charged and shall be available for the same
purposes as such appropriations or funds.
(g) In the case of a Boy Scout Jamboree held on a
military installation, the Secretary of Defense may
provide personnel services and logistical support at the
military installation in addition to the support autho-
rized under subsections (a) and (d).
(h) Other departments of the Federal Government are
authorized, under such regulations as may be pre-
scribed by the Secretary thereof, to provide to the Boy
Scouts of America, equipment and other services,
under the same conditions and restrictions prescribed
in the preceding subsections for the Secretary of
Defense.
(i)(1) The Secretary of Defense shall provide at least
the same level of support under this section for a
national or world Boy Scout Jamboree as was pro-
No. 05-3451 11
vided under this section for the preceding national or
world Boy Scout Jamboree.
(2) The Secretary of Defense may waive paragraph (1),
if the Secretary—
(A) determines that providing the support subject
to paragraph (1) would be detrimental to the
national security of the United States; and
(B) submits to Congress a report containing such
determination in a timely manner, and before the
waiver takes effect.
Since the entire purpose of this statute is to aid the Boy
Scouts with their marquee program, the Jamboree, we
must also look briefly at who they are and why this
controversy arose. The Boy Scout movement was founded
in 1907 in England by Lord Robert Baden-Powell. Three
years later, in 1910, William D. Boyce founded BSA as a
private, nonprofit organization. In 1916, in recognition of
BSA’s record of public service, Congress granted BSA a
federal charter. See 36 U.S.C. § 30901 et seq. As of the
time the record in this case was compiled, there were over
three million youth and one million adult volunteers
participating in the organization.
Few would dispute the fact that the Boy Scouts have,
over the years, provided a valuable outlet for countless
young people. The issue here, however, is whether (or to
what extent) it should be viewed as a religious organiza-
tion. Without a doubt, there are some religious aspects to
scouting. The Boy Scout Oath begins with the phrase “On
my honor I will do my best To do my duty to God and my
Country . . . .” The Scout Law demands, among other
things, that a Scout “is Reverent toward God. He is
faithful in his religious duties. He respects the beliefs of
others.” Scouting is not, however, affiliated with any
particular religious denomination; to the contrary, BSA
12 No. 05-3451
welcomes young people of every religion as well as those
who are not affiliated with any organized religion, so long
as they are willing to accept the Oath and the Scout-
ing laws. BSA admits that atheists and agnostics are
ineligible for membership or leadership positions in
Scouting. On the other hand, significantly for the specific
issue before us, anyone, including members of the general
public, may attend the Jamboree. Although certain aspects
of the BSA’s membership rules have led to litigation in
recent years (particularly its stand with respect to sexual
orientation), see Boy Scouts of America v. Dale, 530 U.S.
640 (2000), Boy Scouts of America v. Wyman, 335 F.3d 80(2d Cir. 2003), Evans v. City of Berkeley, 129 P.3d 394 (Cal.
2006), those matters are not important to our decision
here.
The Boy Scouts have been holding Jamborees since 1937,
long before this statute was passed. Throughout that
time, the U.S. military has supported the Jamboree by
loaning military equipment and by providing various
logistical and other services. It was not until 1972 that
Congress expressly sanctioned this practice by passing the
Jamboree statute. It did so because the military believes
that the Scouts provide unique opportunities for the
secular purposes of military recruitment and positive
public relations for the Armed Forces. In 2001, the Boy
Scout Jamboree drew more than 40,000 Scouts and leaders
to Fort A.P. Hill in Virginia, which has served as the
National Scout Jamboree’s permanent home since 1981.
The Jamboree statute is only one of several mechanisms
by which the BSA obtains or could obtain federal support
for the Jamboree. For example, 10 U.S.C. § 2667(a)
permits the leasing of real or personal military property to
private groups if such as arrangement would “promote the
national defense or be in the public interest.” Unlike the
Jamboree statute, 10 U.S.C. § 2667 does not mention the
BSA by name. Likewise, 10 U.S.C. § 2012 authorizes the
No. 05-3451 13
Secretary to allow the armed forces to provide support to
private groups if “the provision of such assistance is
incidental to military training.” 10 U.S.C. § 2012(a)(2).
That statute does name the BSA and 12 other organiza-
tions as eligible for assistance, and it permits the Secre-
tary to expand the list on a “case-by-case basis.” 10 U.S.C.
§ 2012(e)(3).
These statutes, together with the Jamboree statute, do
not establish the kind of “classic” taxing and spending
program that the Court evaluated in Flast or Bowen, or
that this court considered in Laskowski. No governmental
office gives out any grants to the BSA or any other group
or institution, religious or otherwise. Much of the support
given is in the form of “loans.” Indeed, 10 U.S.C. § 2554(b)
requires the BSA to foot the bill for expenses related to the
“delivery, return, rehabilitation, or replacement” of the
loaned equipment, and the repeated refrain of § 2554(d) is
that various services must be provided “without expense”
to the United States. BSA must give bonds to ensure that
its bill is paid. See § 2554(c) (equipment) and (e) (transpor-
tation). The Secretary would like us to draw the standing
line here: if § 2554 does not authorize either a grant or
direct subsidy to the BSA, he argues, then the taxpayers
do not have standing.
Bowen, however, did not endorse this bright-line test. In
his brief before this court, the Secretary concedes that the
military spends a significant amount of money on the
Jamborees. None of that money is given directly to BSA.
Instead, it is all spent by the military to furnish services
in kind. Although, as the Secretary suggests, the govern-
ment would be footing the bill for at least some of those
services by paying the soldiers’ salaries regardless of
what duties the soldiers are assigned, that does not change
the fact that the personnel assisting the Jamboree are
donating the value of their taxpayer-funded labor to the
BSA. (We doubt that the Secretary would make the same
14 No. 05-3451
argument if the soldiers in question were building a
swimming pool for the local base commander.) In addition,
the military hires temporary workers to perform
Jamboree-related services, and it purchases supplies
earmarked for the Jamboree.
The military spent $6 million on the 1997 Jamboree,
almost $8 million on the one in 2001, and—until the
district court’s injunction—it was scheduled to spend
another $7.3 million on the 2005 Jamboree. This averages
out to almost $2 million per year per Jamboree on ex-
penses including the military’s transportation of its
personnel to Fort A.P. Hill, rental of commercial equip-
ment such as trucks, and purchasing a range of dispos-
able goods such as medical supplies and cookie dough.
That level of spending of federal tax dollars, while a tiny
fraction of the Pentagon’s budget, can hardly be called
incidental. (For Fiscal Year 2008, the President has
requested $481.4 billion in discretionary authority for the
Department of Defense. See http://www.dod.mil/comptrol-
ler/defbudget/fy2008/2008_Budget_Rollout_Release.pdf.) As
we have said, the fact that the support given to the BSA
is “in kind” rather than by cash or check cannot be the
dividing line. Building a church and providing all of its
supplies must be equally offensive to the Establishment
Clause as giving the church the money to do the construc-
tion and purchase of supplies itself. Election law provides
a good analogy: a candidate must disclose not only cash
contributions but also coordinated expenditures. The
reason is simple: money is fungible and the value of the
services rendered or supplies given to a candidate is equal
to that of the check that might have otherwise been
written by the donor. Cf. Shays v. Federal Election Com’n,
414 F.3d 76, 97-98 (D.C. Cir. 2005) (discussing the Federal
Election Campaign Act’s definitions of contributions
and coordinated expenditures and when under the
statute the latter are classified as the former).
No. 05-3451 15
More persuasively, the Secretary contends that Winkler
lacks standing because the Jamboree statute is not a
“taxing and spending” statute but rather is authorized by
Congress’s powers under the Property Clause, Art. IV, § 3,
cl. 2, and the Military Clauses, Art. I, § 8, cls. 12-14. The
military is, in other words, just regulating its own property
and manpower. Winkler responds that even if Congress
is exercising its authority under the Property and/or
Military Clauses in this statute, the statute also neces-
sarily relies on the Taxing and Spending Clause, Art. I,
§ 8, cl. 1. He argues that taxpayers have standing to
challenge this statute because “[s]pending is the chal-
lenged conduct, and not just a means to accomplish the
challenged conduct.” To adopt Winkler’s position, however,
would be to abolish the line that the Supreme Court drew
between Valley Forge and Bowen, because exactly the
same thing could have been said about the surplus prop-
erty program in Valley Forge. Indeed, it is hard to imagine
how Congress could exercise any of its constitutional
powers without some incidental use of the taxing and
spending power.
Congress usually does not indicate which of its manifold
powers it is exercising when it passes a particular piece of
legislation, and some pieces of legislation undoubtedly
rest on multiple constitutional clauses. The Jamboree
statute is a good example. It apparently relies, in part, on
the Property Clause, Art. IV, § 3, cl. 2; the Military
Clauses, Art. I, § 8, cls. 12-14; and even the Commerce
Clause, Art. I, § 8, cl. 3. (The Jamboree affects interstate
commerce by drawing thousands of travelers to the
Commonwealth of Virginia. In an amicus brief, a group of
Virginia politicians pointed out that BSA alone spent
$17 million in Virginia for the 2005 Jamboree, and individ-
ual scouts and other visitors to the Jamboree obviously
added much more to the total.)
16 No. 05-3451
The text of the Jamboree statute that we reproduced
earlier is also informative. Even assuming that it is cor-
rect to characterize the BSA as a “religious” organization,
this statute is for the purpose of assisting the military in
persuading a new generation to join its ranks and in
building good will. This is a secular and valid purpose. Cf.
Rumsfeld v. Forum for Academic and Institutional Rights,
Inc., 126 S.Ct. 1297 (2006) (upholding statute requiring
law schools to offer military recruiters same access to
campuses and students as most favored nonmilitary
recruiters had). Although some support of the organization
does occur, the statute does not turn money or services
over to BSA to handle any way it wants. Indeed, most of
the services the military furnishes are underwritten by
BSA, because Congress has insisted on revenue-neutrality
for the United States.
Despite the fact that § 2554(h) authorizes other depart-
ments to follow the military’s lead, it is first and foremost
a statute about the use, disposal, and provision of military
resources—including equipment, land, and soldiers. The
district court relied on the absence of recruiting or train-
ing as a purpose in the statute itself or the 1972 Senate re-
port, see S.R. 92-631 (1972), reprinted in 1972
U.S.C.C.A.N. 2022, but it overlooked the fact that the 1972
report focused on the potential international ramifications
of supporting the Jamboree:
The theme of the 1971 Jamboree, For Understanding,
prevailed in all facets of jamboree activities. The 7,800
American scouts in attendance, identified by the stars
and stripes on their uniforms, received great applause
and admiration wherever they appeared. One of the
most significant results of the jamboree was the
fellowship and understanding for other peoples the Boy
Scouts of America obtained from their association with
the scouts of all nations. The international rapport
achieved made the equipment loaned and time spend
[sic] by the Department of Defense and other Govern-
No. 05-3451 17
ment agencies in coordinating the services to the
American contingent very worthwhile.
1972 U.S.C.C.A.N. at 2024.
Although Winkler questions whether the military is
investing its time and money wisely when it uses the
Jamboree to further its broader goals, that concern is far
removed from the Establishment Clause. Furthermore, a
court is poorly equipped to second-guess the military’s
own assessment of the benefits of the Jamboree. In a time
when the armed forces regularly spend significant funds
both for recruitment and public relations, Congress’s
decision to authorize them to take advantage of a built-in
audience of potential recruits is reasonably related to the
activities authorized by the Military Clauses. We are
satisfied that this purpose is apparent even in the legisla-
tion that was before the district court. Nonetheless, we
note for the sake of completeness that Congress took steps
to clarify its purpose in a later act. Pub.L. 109-148, Div. A,
Title VIII, § 8126(c)(1), Dec. 30, 2005, 119 Stat. 2729, reads
as follows:
(1) Findings.—Congress makes the following findings:
(A) Section 8 of article I of the Constitution of the
United States commits exclusively to Congress the
powers to raise and support armies, provide and
maintain a Navy, and make rules for the government
and regulation of the land and naval forces.
(B) Under those powers conferred by section 8 of
article I of the Constitution of the United States to
provide, support, and maintain the Armed Forces, it
lies within the discretion of Congress to provide
opportunities to train the Armed Forces.
(C) The primary purpose of the Armed Forces is to
defend our national security and prepare for combat
should the need arise.
18 No. 05-3451
(D) One of the most critical elements in defending the
Nation and preparing for combat is training in condi-
tions that simulate the preparation, logistics, and
leadership required for defense and combat.
(E) Support for youth organization events simulates
the preparation, logistics, and leadership required for
defending our national security and preparing for
combat.
(F) For example, Boy Scouts of America’s National
Scout Jamboree is a unique training event for the
Armed Forces, as it requires the construction, mainte-
nance, and disassembly of a ‘tent city’ capable of
supporting tens of thousands of people for a week or
longer. Camporees at the United States Military
Academy for Girl Scouts and Boy Scouts provide
similar training opportunities on a smaller scale.
This case is like the Third Circuit’s case, Americans
United for Separation of Church and State v. Reagan, 786
F.2d 194 (3d Cir. 1986), in which federal taxpayers chal-
lenged congressional actions funding the diplomatic
mission to the Vatican as a violation of the Establishment
Clause. In that case, the Third Circuit noted that the
expenditure at issue was not one “for which authority
is found only in article I, section 8, clause 1.” Id. at 199.
Instead, the actual bill challenged was a repeal of an 1867
law banning funding of a mission in Rome. The Third
Circuit noted that the power being exercised was not
that of appropriation, but that of “the conduct of foreign
affairs” and that the Supreme Court in Flast “by carefully
limiting taxpayer standing to challenges of expenditures
solely dependent upon the taxing and spending clause,
made clear that one’s status as a taxpayer did not confer
upon one standing to challenge the exercise of other
governmental powers . . . .” Id. See also Phelps v. Reagan,
812 F.2d 1293 (10th Cir. 1987) (following the Third
Circuit).
No. 05-3451 19
We reiterate finally that the activity Congress has
chosen to support—the Jamboree—is one that is open to
all, not just to members of BSA. We conclude, in light of
all these facts, that the Jamboree Statute is primarily an
exercise of Congress’s powers under the Military and, to
a lesser extent, Property Clauses. While the use of those
powers necessarily requires some incidental spending,
the statute is not the kind of “taxing and spending”
legislation identified in Flast as suitable for a taxpayer
challenge.
III
Because plaintiffs do not have standing to bring this
case, we REVERSE the judgment of the district court and
REMAND for dismissal of the action.
SYKES, Circuit Judge, concurring. I agree with the
majority’s conclusion that the plaintiff taxpayers lack
standing to challenge the Boy Scout Jamboree statute,
10 U.S.C. § 2554. I do not agree, however, with several
aspects of the majority’s standing analysis. My primary
objection is to the assertion, made by this court in Freedom
from Religion Found., Inc. v. Chao, 433 F.3d 989, 991 (7th
Cir. 2006), cert. granted sub nom. Hein v. Freedom from
Religion Found., Inc., 127 S. Ct. 722 (2006), and repeated
here, maj. op. at 3, 8, that taxpayer standing doctrine is
merely prudential; it is not. The Frothingham rule against
taxpayer suits enforces the standing requirements of
20 No. 05-3451
Article III’s case-or-controversy limitation on federal
judicial power, a fundamental feature in the Constitution’s
separation of powers. DaimlerChrysler Corp. v. Cuno, 126
S. Ct. 1854, 1861-63 (2006); Bowen v. Kendrick, 487 U.S.
589, 618-20 (1988); Valley Forge Christian Coll. v. Amns.
United for Separation of Church & State, Inc., 454 U.S.
464, 477-80 (1982); United States v. Richardson, 418 U.S.
166, 171-73 (1974); Schlesinger v. Reservists Comm. to Stop
the War, 418 U.S. 208, 215 (1974); Flast v. Cohen, 392 U.S.
83, 101-06 (1968); Doremus v. Bd. of Educ., 342 U.S. 429,
433-34 (1952); Frothingham v. Mellon, 262 U.S. 447, 486-
89 (1923).
Frothingham involved a taxpayer’s due process challenge
to the Maternity Act of 1921, which provided federal
funding to the states for maternal and infant health. The
Court held the taxpayer could not bring the claim, noting
that a “party who invokes the power [of judicial review]
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 the result of its enforce-
ment, and not merely that he suffers in some indefinite
way in common with people generally.” Frothingham, 262
U.S. at 488. A taxpayer’s “interest in the moneys of the
treasury . . . is shared with millions of others, is compara-
tively 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 af-
forded for an appeal to the preventive powers of a court of
equity.” Id. at 487. The Court noted that if a single tax-
payer may challenge a statute, “then every other taxpayer
may do the same, not only in respect of the statute here
under review, but also in respect of every other appropria-
tion act and statute whose administration requires the
outlay of public money, and whose validity may be ques-
tioned.” Id. To entertain such a suit, the Court held, would
be “not to decide a judicial controversy, but to assume a
No. 05-3451 21
position of authority over the governmental acts of an-
other and coequal department, an authority which plainly
we do not possess.” Id. at 489.
The Flast exception to the Frothingham rule—invoked by
the plaintiff taxpayers here—likewise addresses constitu-
tional standing requirements in the context of Establish-
ment Clause challenges to exercises of the congressional
taxing and spending power. Flast, 392 U.S. at 101-06. Any
question about the constitutional or prudential status of
the Supreme Court’s taxpayer standing doctrine was
resolved in Flast itself. Along the way to announcing a
narrow exception to the Frothingham bar against tax-
payer standing, the Supreme Court in Flast undertook a
“fresh examination of the limitations upon standing to
sue in a federal court and the application of those limita-
tions to taxpayer suits” and grounded its “fresh examina-
tion” in Article III. Id. at 94.
The Court said in Flast that the question whether
plaintiffs may sue in federal court solely in their capacity
as taxpayers “turns on whether they can demonstrate the
necessary stake as taxpayers in the outcome of the litiga-
tion to satisfy Article III requirements.” Id. at 102 (empha-
sis added). The Court held that “a taxpayer will have
standing consistent with Article III to invoke federal
judicial power when he alleges that congressional action
under the taxing and spending clause is in derogation of
those constitutional provisions which operate to restrict
the exercise of the taxing and spending power.” Id. at 105-
06 (emphasis added). Because “the Establishment Clause
of the First Amendment . . . specifically limit[s] the taxing
and spending power conferred by Art. I, § 8,” the Court
held that taxpayers will have standing to assert Establish-
ment Clause challenges “only [to] exercises of congressio-
nal power under the taxing and spending clause.” Id. at
102, 105. The Flast plaintiffs sued to enjoin federal
22 No. 05-3451
appropriations made to religious schools pursuant to the
Elementary and Secondary Education Act of 1965; the
Court found a “logical nexus” between their status as
taxpayers and the claim that the Education Act was an
unconstitutional exercise of the taxing and spending
power in violation of the Establishment Clause and
permitted the claim to proceed. Id. at 102-03. But Flast left
the Frothingham rule in place: The Court said the case-or-
controversy requirements of Article III will not be satisfied
“where a taxpayer seeks to employ a federal court as a
forum in which to air his generalized grievances about the
conduct of government or the allocation of power in the
Federal System.” Id. at 106.
In Richardson, the Court observed that Flast had
clarified the question whether the Frothingham prohibi-
tion against taxpayer standing derived from the require-
ments of Article III or was merely a prudential policy
judgment. Richardson, 418 U.S. at 172-73. “When the
Court addressed the question of standing in Flast, Mr.
Chief Justice Warren traced what he described as the
‘confusion’ following Frothingham as to whether the Court
had announced a constitutional doctrine barring suits
by taxpayers challenging federal expenditures as uncon-
stitutional or simply a policy rule of judicial self-restraint.”
Richardson, 418 U.S. at 172. The Richardson Court noted
that Chief Justice Warren’s “fresh examination” of stand-
ing doctrine in Flast led to a constitutional holding on the
question of taxpayer standing. Id. at 173 (“[T]he [Flast]
Court emphasized that Art. III requirements are the
threshold inquiry.”).
To the extent any ambiguity remained after Richardson,
Valley Forge surely cleared it up. There, as the majority
notes, the Court declined to expand Flast, holding that
taxpayers did not have standing to challenge a federal
agency’s decision to transfer an unused Army hospital to
No. 05-3451 23
Valley Forge Christian College. The Court reasoned that
the taxpayers’ claim did not fall within the narrow excep-
tion announced in Flast because they challenged an
executive—not congressional—action, and because the
authorizing legislation, the Federal Property and Adminis-
trative Services Act of 1949, was an exercise of the Prop-
erty Clause power under Article IV, Section 3, Clause 2,
not an exercise of the taxing and spending power under
Article I, Section 8. Valley Forge, 454 U.S. at 479-80.
Valley Forge could not have been clearer about the
foundations of the Court’s taxpayer standing doctrine. The
Court held that although “[t]he term ‘standing’ subsumes
a blend of constitutional requirements and prudential
considerations,” the “irreducible minimum” of Article III
standing “requires the party who invokes the court’s
authority to show that he personally has suffered some
actual or threatened injury as a result of the putatively
illegal conduct of the defendant, . . . and that the injury
fairly can be traced to the challenged action and is likely
to be redressed by a favorable decision.” Id. at 471-72(citations and quotations omitted). Quoting Frothingham,
the Court reaffirmed that taxpayers generally cannot
establish these minimums because “[a]ny tangible effect of
the challenged statute on the plaintiff ’s tax burden [is]
‘remote, fluctuating and uncertain,’ ” and the asserted
injury is not distinct and particularized but instead is
shared “ ‘in common with people generally.’ ” Id. at 477(quoting Frothingham, 262 U.S. at 487-88). Taxpayers
seeking to establish standing under Flast must assert
an injury from a specific congressional exercise of the
Article I, Section 8 taxing and spending power alleged to
be in violation of the Establishment Clause.
Recognizing Flast’s potential to impermissibly enlarge
the judicial role if extended beyond its terms, the Court
in Valley Forge cautioned that Flast should not be under-
stood to have relaxed the injury-in-fact and redressability
24 No. 05-3451
requirements of constitutional standing in Establishment
Clause cases and insisted that the exception it created
be applied with “rigor.” Id. at 481, 488-90. Indeed, the
Court has strictly limited the reach of Flast, confining it to
Establishment Clause claims, see DaimlerChrysler, 126
S. Ct. at 1864, and actions to enjoin a direct disbursement
of public funds pursuant to a specific congressional
appropriation, see Bowen, 487 U.S. at 618 (“[W]e have
consistently adhered to Flast and the narrow exception
it created to the general rule against taxpayer standing
in Frothingham.”); see also Freedom from Religion, 433
F.3d at 998 (Ripple, J., dissenting) (Flast “survives as a
narrow exception to . . . [the] ban on generalized griev-
ances”; expanding Flast to allow taxpayers to challenge an
executive branch activity conducted with general appro-
priation funds “cuts the concept of taxpayer standing loose
from its moorings.”); Laskowski v. Spellings, 443 F.3d 930,
939 (7th Cir. 2006) (Sykes, J., dissenting) (“The Supreme
Court has steadfastly refused to expand Flast and has
never recognized private party repayment to the Treasury
as an appropriate remedy for an Establishment Clause
violation in a suit based on taxpayer standing.”).
If the rule against taxpayer standing derives from the
requirements of Article III (and it does), its exception
cannot be mere prudential judicial policy:
[N]either the counsels of prudence nor the policies
implicit in the “case or controversy” requirement
should be mistaken for the rigorous Art. III require-
ments themselves. Satisfaction of the former cannot
substitute for a demonstration of “ ‘distinct and palpa-
ble injury’ . . . that is likely to be redressed if the
requested relief is granted.” That requirement states
a limitation on judicial power, not merely a factor to
be balanced in the weighing of so-called “prudential”
considerations.
Valley Forge, 454 U.S. at 475 (citations omitted).
No. 05-3451 25
Curiously, my colleagues cite but do not discuss the
Supreme Court’s most recent statement on taxpayer
standing, last term’s unanimous opinion in
DaimlerChrysler. There, the Court reaffirmed the
Frothingham bar against taxpayer standing and declined
to extend Flast to Commerce Clause claims.
DaimlerChrysler, 126 S. Ct. at 1864-65. Nothing in
DaimlerChrysler even remotely hints that the Court now
considers taxpayer standing doctrine to be rooted in
prudential policy considerations; to the contrary, the
Court’s opinion focused on the requirements of Article III
and the case-or-controversy limitation on federal judicial
power. Indeed, the Court referred to the Frothingham rule
as “the Article III prohibition on taxpayer suits.” Id.
at 1865.
So this court was simply wrong to assert in Freedom
from Religion that Frothingham and Flast “rested not on
Article III . . . but rather on what have come to be called
the ‘prudential’ principles of standing,” which “like
other common law principles, are protean and mutable.”
Freedom from Religion, 433 F.3d at 991-92. This
mischaracterization of taxpayer standing doctrine per-
mitted the Freedom from Religion majority to avoid a
“rigorous” adherence to the limits of Flast, to dispense with
the requirement of a specific congressional disbursement
under the taxing and spending power, and to allow taxpay-
ers to challenge a wholly executive-branch activity sup-
ported by general appropriations. Id. at 996-97. As Judge
Ripple noted in dissent, this was a “dramatic expansion of
current standing doctrine,” encompassing an activity of
government not at all like the congressional-grant pro-
grams at issue in Flast and Bowen—the only category of
taxpayer “injury” that the Supreme Court has recognized
as sufficient to allow a taxpayer Establishment Clause
claim to proceed. Id. at 997.
26 No. 05-3451
It is true that the logic of Flast is difficult to reconcile
with the basic requirements of Article III, see Freedom
from Religion Found., Inc. v. Chao, 447 F.3d 988, 988-90
(Flaum, C.J., concurring in denial of rehearing en banc)
(Easterbrook, J., concurring in denial of rehearing en
banc); as the majority notes, the Supreme Court granted
certiorari in Freedom from Religion and may bring greater
clarity to this area of justiciability law. But we are not
at liberty to recast a constitutional doctrine as a pruden-
tial one. We should not perpetuate the underlying doc-
trinal error of Freedom from Religion here.
Relatedly, I cannot agree with the majority’s assertion
that “no party” in Freedom from Religion “is asking the
Supreme Court to expand taxpayer standing.” Maj. op.
at 5 n.1. To the contrary, because Freedom from Religion
moved the boundaries of current taxpayer standing
doctrine, the plaintiffs there, in defending this court’s
decision, are necessarily asking the Supreme Court to
expand taxpayer standing.
The majority observes that the Jamboree statute,
together with the other statutory sources of the military’s
authority to lend property and provide logistical support
to the Jamboree, “do not establish the kind of ‘classic’
taxing and spending program that the Court evaluated in
Flast or Bowen.” Maj. op. at 13. I agree. But the same can
be said about the presidential conferences at issue in
Freedom from Religion. That case, like this one, challenges
executive branch activity supported by general appro-
priations.
The majority rejects the argument that taxpayers will
have standing under Flast only where the challenged
statute “authorize[s] either a grant or direct subsidy” of
the type at issue in Bowen and in Flast itself. Maj. op.
at 13. “[T]he fact that the support given to the BSA is ‘in
kind’ rather than by cash or check,” the majority states,
No. 05-3451 27
“cannot be the dividing line. Building a church and provid-
ing all of its supplies must be equally offensive to the
Establishment Clause as giving the church the money to
do the construction and purchase of supplies itself.” Id.
at 14. Yet the majority relies on this distinction to sup-
port the conclusion that the plaintiffs here do not have
standing: “Although some support of the organization does
occur, the [Jamboree] statute does not turn money or
services over to BSA to handle any way it wants.” Id. at 16.
Again, this logical tension may be inherent in Flast’s
exception to Frothingham’s rule, see Freedom from Reli-
gion, 447 F.3d at 990 (Easterbrook, J., concurring in denial
of rehearing en banc); the Supreme Court will provide
guidance soon.
In the meantime, the better course is to follow the
admonition in Valley Forge, apply the Flast exception to
the Frothingham rule with “rigor,” and limit Flast’s
reach to factually similar claims until the Supreme
Court tells us otherwise. That means no standing here, but
for a threshold reason rejected by the majority: because the
Jamboree statute does not establish a congressional grant
or direct appropriation program of the type at issue in
Flast and Bowen. It is, as the majority notes, a statute
about the military’s use and disposition of its land and
equipment, and the assignment, training, and recruitment
of soldiers. Maj. op. at 16. I fully agree with the majority’s
conclusion that the Jamboree statute rests primarily on
the Military Clauses, Article I, Section 8, Clauses 12-14,
and the Property Clause, Article IV, Section 3, Clause 2,
and for this (additional) reason, the case resembles Valley
Forge rather than Flast and Bowen.
I would also note that redressability is missing here. On
appeal, the plaintiffs have focused their arguments on
defending the district court’s decision on standing and its
injunction against the operation of the Jamboree statute.
The district court rejected the plaintiffs’ challenge to
28 No. 05-3451
certain other statutes authorizing the military to lend
property and provide logistical support to the Jamboree,
and they have apparently accepted that ruling. But the
fact that the military has other statutory authority to
assist the Jamboree, see 10 U.S.C. §§ 2012, 2667, maj. op.
at 12-13, and was doing so for thirty-five years prior to the
enactment of the Jamboree statute, undermines any
argument that the “injury” from the statute is redressable.
An injunction against § 2554 would not prevent the
military from opening Fort A.P. Hill to the Boy Scouts
and providing equipment and logistical support to the
Jamboree under statutory authority upheld by the dis-
trict court and not at issue here.
This brings me to my final point. The district court held
that § 2554 violated the Establishment Clause and en-
joined “the U.S. Secretary of Defense and his officers,
agents, servants, employees and attorneys . . . from
providing any aid to the Boy Scouts of America pursuant
to 10 U.S.C. § 2554, with the sole exception of aid provided
or to be provided in support of the 2005 Jamboree that will
take place from July 25 through August 3, 2005.” (Empha-
sis added.) This order was dated June 22, 2005, and it
notes that “[t]he injunction the plaintiffs are seeking
specifically excludes the upcoming 2005 Jamboree.”
Whether the plaintiffs’ forbearance in this regard was the
product of generosity, the spirit of compromise, or a desire
to avoid the public relations fallout that would have
attended their eleventh-hour scuttling of the 2005 Jambo-
ree (if that’s what would have occurred), their conduct
undermines any claim that they were suffering a grave
constitutional injury. Constitutional litigation is legitimate
only where there is a real injury and a legal remedy
available to redress it. A willingness to postpone the
remedy suggests that the plaintiffs’ injury was not real but
only a legal fiction to get their Establishment Clause claim
before the court. But “Article III . . . is not merely a
No. 05-3451 29
troublesome hurdle to be overcome if possible so as to
reach the ‘merits’ of a lawsuit which a party desires to
have adjudicated; it is a part of the basic charter promul-
gated by the Framers.” Valley Forge, 454 U.S. at 476.
With these points of departure, I respectfully concur.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-4-07