OPINION OF THE COURT
ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION V.WINN
563 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NOS. 09-987 AND 09-991
ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZA- TION,
PETITIONER
09–987
v.
KATHLEEN M. WINN et al.
GALE GARRIOTT, DIRECTOR, ARIZONA DEPART- MENT
OF REVENUE, PETITIONER
09–991 v.
KATHLEEN M. WINN et al.
on writs of certiorari to the united states
court of appeals for the ninth circuit
[April 4, 2011]
Justice Kennedy
delivered the opinion of the Court.
Arizona provides tax credits for
contributions to school tuition organizations, or STOs. STOs use
these contributions to provide scholarships to students attending
private schools, many of which are religious. Respondents are a
group of Arizona taxpayers who challenge the STO tax credit as a
violation of Establishment Clause principles under the First and
Fourteenth Amendments. After the Arizona Supreme Court rejected a
similar Establishment Clause claim on the merits, respondents
sought intervention from the Federal Judiciary.
To obtain a determination on the merits in
federal court, parties seeking relief must show that they have
standing under Article III of the Constitution.
Standing in Establishment Clause cases may be
shown in various ways. Some plaintiffs may demonstrate standing
based on the direct harm of what is claimed to be an establishment
of religion, such as a mandatory prayer in a public school
classroom. See
School Dist. of Abington Township v.
Schempp,
374 U. S. 203, 224, n. 9
(1963). Other plaintiffs may demonstrate standing on the ground
that they have incurred a cost or been denied a benefit on account
of their religion. Those costs and benefits can result from alleged
discrimination in the tax code, such as when the availability of a
tax exemption is conditioned on religious affiliation. See
Texas Monthly, Inc. v.
Bullock,
489 U. S. 1, 8 (1989)
(plurality opinion).
For their part, respondents contend that they
have standing to challenge Arizona’s STO tax credit for one and
only one reason: because they are Arizona taxpayers. But the mere
fact that a plaintiff is a taxpayer is not generally deemed
sufficient to establish standing in federal court. To overcome that
rule, respondents must rely on an exception created in
Flast v.
Cohen,
392 U. S. 83 (1968). For the reasons
discussed below, respondents cannot take advantage of
Flast’s narrow exception to the general rule against
taxpayer standing. As a consequence, respondents lacked standing to
commence this action, and their suit must be dismissed for want of
jurisdiction.
I
Respondents challenged §43–1089,
a provision of the Arizona Tax Code. See 1997 Ariz. Sess. Laws
§43–1087, codified, as amended, Ariz. Rev. Stat. Ann. §43–1089
(West Supp. 2010). Section 43–1089 allows Arizona taxpayers to
obtain dollar-for-dollar tax credits of up to $500 per person and
$1,000 per married couple for contributions to STOs. §43–1089(A).
If the credit exceeds an individual’s tax liability, the credit’s
unused portion can be carried forward up to five years.
§43–1089(D). Under a version of §43–1089 in effect during the
pendency of this lawsuit, a charitable organization could be deemed
an STO only upon certain conditions. See §43–1089 (West 2006). The
organization was required to be exempt from federal taxation under
§501(c)(3) of the Internal Revenue Code of 1986. §43–1089(G)(3)
(West Supp. 2005). It could not limit its scholarships to students
attending only one school.
Ibid. And it had to allocate
“at least ninety per cent of its annual revenue for educational
scholarships or tuition grants” to children attending qualified
schools.
Ibid. A “qualified school,” in turn, was defined
in part as a private school in Arizona that did not discriminate on
the basis of race, color, handicap, familial status, or national
origin. §43–1089(G)(2).
In an earlier lawsuit filed in
state court, Arizona taxpayers challenged §43–1089, invoking both
the United States Constitution and the Arizona Constitution. The
Arizona Supreme Court rejected the taxpayers’ claims on the merits.
Kotterman v.
Killian, 193 Ariz. 273, 972
P. 2d 606 (1999). This Court denied certiorari.
Rhodes v.
Killian,
528 U. S. 810 (1999);
Kotterman v.
Killian,
528 U. S. 921
(1999).
The present action was filed in the United
States District Court for the District of Arizona. It named the
Director of the Arizona Department of Revenue as defendant. The
Arizona taxpayers who brought the suit claimed that §43–1089
violates the Establishment Clause of the First Amendment, as
incorporated against the States by the Fourteenth Amendment.
Respondents alleged that §43–1089 allows STOs “to use State
income-tax revenues to pay tuition for students at religious
schools,” some of which “discriminate on the basis of religion in
selecting students.” Complaint in No. 00–0287 (D Ariz.), ¶¶29–31,
App. to Pet. for Cert. in No. 09–987, pp. 125a–126a. Respondents
requested, among other forms of relief, an injunction against the
issuance of §43–1089 tax credits for contributions to religious
STOs. The District Court dismissed respondents’ suit as
jurisdictionally barred by the Tax Injunction Act, 28 U. S. C.
§1341. The Court of Appeals reversed. This Court agreed with the
Court of Appeals and affirmed.
Hibbs v.
Winn,
542 U. S. 88 (2004).
On remand, the Arizona Christian School
Tuition Organization and other interested parties intervened. The
District Court once more dismissed respondents’ suit, this time for
failure to state a claim. Once again, the Court of Appeals
reversed. It held that respondents had standing under
Flast v.
Cohen,
supra. 562 F. 3d
1002 (CA9 2009). Reaching the merits, the Court of Appeals ruled
that respondents had stated a claim that §43–1089 violated the
Establishment Clause of the First Amendment. The full Court of
Appeals denied en banc review, with eight judges dissenting. 586
F. 3d 649 (CA9 2009). This Court granted certiorari. 560 U. S.
__ (2010).
II
The concept and operation of the
separation of powers in our National Government have their
principal foundation in the first three Articles of the
Constitution. Under Article III, the Federal Judiciary is vested
with the “Power” to resolve not questions and issues but “Cases” or
“Controversies.” This language restricts the federal judicial power
“to the traditional role of the Anglo-American courts.”
Summers v.
Earth Island Institute,
555 U. S. 488, ___
(2009) (slip op., at 4). In the English legal tradition, the need
to redress an injury resulting from a specific dispute taught the
efficacy of judicial resolution and gave legitimacy to judicial
decrees. The importance of resolving specific cases was visible,
for example, in the incremental approach of the common law and in
equity’s consideration of exceptional circumstances. The Framers
paid heed to these lessons. See U. S. Const., Art. III,
§ 2 (“The judicial Power shall extend to all Cases, in Law and
Equity … ”). By rules consistent with the longstanding
practices of Anglo-American courts a plaintiff who seeks to invoke
the federal judicial power must assert more than just the
“generalized interest of all citizens in constitutional
governance.”
Schlesinger v.
Reservists Comm. to Stop
the War,
418 U. S. 208, 217 (1974).
Continued adherence to the
case-or-controversy requirement of Article III maintains the
public’s confidence in an unelected but restrained Federal
Judiciary. If the judicial power were “extended to every
question under the constitution,” Chief Justice Marshall
once explained, federal courts might take possession of “almost
every subject proper for legislative discussion and decision.” 4
Papers of John Marshall 95 (C. Cullen ed. 1984) (quoted in
DaimlerChrysler Corp. v.
Cuno,
547 U. S. 332, 341
(2006)). The legislative and executive departments of the Federal
Government, no less than the judicial department, have a duty to
defend the Constitution. See U. S. Const., Art. VI,
cl. 3. That shared obligation is incompatible with the
suggestion that federal courts might wield an “unconditioned
authority to determine the constitutionality of legislative or
executive acts.”
Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc.,
454 U. S. 464, 471 (1982). For the
federal courts to decide questions of law arising outside of cases
and controversies would be inimical to the Constitution’s
democratic character. And the resulting conflict between the
judicial and the political branches would not, “in the long run, be
beneficial to either.”
United States v.
Richardson,
418 U. S. 166, 188–189 (1974) (Powell,
J., concurring). Instructed by Chief Justice Marshall’s admonition,
this Court takes care to observe the “role assigned to the
judiciary” within the Constitution’s “tripartite allocation of
power.”
Valley Forge,
supra, at 474 (internal
quotation marks omitted).
III
To state a case or controversy
under Article III, a plaintiff must establish standing.
Allen v.
Wright,
468 U. S. 737, 751
(1984). The minimum constitutional requirements for standing were
explained in
Lujan v.
Defenders of Wildlife,
504 U. S. 555
(1992).
“First, the plaintiff must have suffered an ‘injury
in fact’—an invasion of a legally protected interest which is (a)
concrete and particularized, and (b) ‘actual or imminent, not
“conjectural” or “hypothetical.’ ” Second, there must be a
causal connection between the injury and the conduct complained
of—the injury has to be ‘fairly … trace[able] to the challenged
action of the defendant, and not … th[e] result [of] the
independent action of some third party not before the court.’
Third, it must be ‘likely,’ as opposed to merely ‘speculative,’
that the injury will be ‘redressed by a favorable decision.’ ”
Id., at 560–561 (citations and footnote omitted).
In requiring a particular injury, the Court meant
“that the injury must affect the plaintiff in a personal and
individual way.”
Id., at 560, n. 1. The question now
before the Court is whether respondents, the plaintiffs in the
trial court, satisfy the requisite elements of standing.
A
Respondents suggest that their
status as Arizona taxpayers provides them with standing to
challenge the STO tax credit. Absent special circumstances,
however, standing cannot be based on a plaintiff’s mere status as a
taxpayer. This Court has rejected the general proposition that an
individual who has paid taxes has a “continuing, legally cognizable
interest in ensuring that those funds are not
used by the
Government in a way that violates the Constitution.”
Hein
v.
Freedom From Religion Foundation, Inc.,
551 U. S. 587, 599 (2007) (plurality
opinion). This precept has been referred to as the rule against
taxpayer standing.
The doctrinal basis for the rule
was discussed in
Frothingham v.
Mellon,
262 U. S. 447 (1923)
(decided with
Massachusetts v.
Mellon). There, a
taxpayer-plaintiff had alleged that certain federal expenditures
were in excess of congressional authority under the Constitution.
The plaintiff argued that she had standing to raise her claim
because she had an interest in the Government Treasury and because
the allegedly unconstitutional expenditure of Government funds
would affect her personal tax liability. The Court rejected those
arguments. The “effect upon future taxation, of any payment out of
funds,” was too “remote, fluctuating and uncertain” to give rise to
a case or controversy.
Id., at 487. And the
taxpayer-plaintiff’s “interest in the moneys of the Treasury,” the
Court recognized, was necessarily “shared with millions of others.”
Ibid. As a consequence,
Frothingham held that the
taxpayer-plaintiff had not presented a “judicial controversy”
appropriate for resolution in federal court but rather a “matter of
public … concern” that could be pursued only through the political
process.
Id., at 487–489.
In a second pertinent case,
Doremus
v.
Board of Ed. of Hawthorne,
342 U. S. 429 (1952),
the Court considered
Frothingham’s prohibition on taxpayer
standing in connection with an alleged Establishment Clause
violation. A New Jersey statute had provided that public school
teachers would read Bible verses to their students at the start of
each schoolday. A plaintiff sought to have the law enjoined,
asserting standing based on her status as a taxpayer. Writing for
the Court, Justice Jackson reiterated the foundational role that
Article III standing plays in our separation of powers.
“ ‘The party who invokes the power [of the
federal courts] 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 a result of its enforcement, and
not merely that he suffers in some indefinite way in common with
people generally.’ ”
Doremus,
supra, at 434
(quoting
Frothingham,
supra, at 488).
The plaintiff in
Doremus lacked any
“direct and particular financial interest” in the suit, and, as a
result, a decision on the merits would have been merely “advisory.”
342 U. S., at 434–435. It followed that the plaintiff’s allegations
did not give rise to a case or controversy subject to judicial
resolution under Article III.
Ibid. Cf.
School Dist.
of Abington Township v.
Schempp, 374 U. S., at 224,
n. 9 (finding standing where state laws required Bible
readings or prayer in public schools, not because plaintiffs were
state taxpayers but because their children were enrolled in public
schools and so were “directly affected” by the challenged
laws).
In holdings consistent with
Frothingham and
Doremus, more recent decisions
have explained that claims of taxpayer standing rest on
unjustifiable economic and political speculation. When a government
expends resources or declines to impose a tax, its budget does not
necessarily suffer. On the contrary, the purpose of many
governmental expenditures and tax benefits is “to spur economic
activity, which in turn
increases government revenues.”
DaimlerChrysler, 547 U. S., at 344.
Difficulties persist even if one assumes that
an expenditure or tax benefit depletes the government’s coffers. To
find injury, a court must speculate “that elected officials will
increase a taxpayer-plaintiff’s tax bill to make up a deficit.”
Ibid. And to find redressability, a court must assume
that, were the remedy the taxpayers seek to be allowed,
“legislators will pass along the supposed increased revenue in the
form of tax reductions.”
Ibid. It would be “pure
speculation” to conclude that an injunction against a government
expenditure or tax benefit “would result in any actual tax relief”
for a taxpayer-plaintiff.
ASARCO Inc. v.
Kadish,
490 U. S. 605,
614 (1989) (opinion of Kennedy, J.).
These well-established principles apply to the
present cases. Respondents may be right that Arizona’s STO tax
credits have an estimated annual value of over $50 million. See
Brief for Respondent Winn et al. 42; see also Arizona Dept. of
Revenue, Revenue Impact of Arizona’s Tax Expenditures FY 2009/10,
p. 48 (preliminary Nov. 15, 2010) (reporting the total estimated
“value” of STO tax credits claimed over a 1-year period). The
education of its young people is, of course, one of the State’s
principal missions and responsibilities; and the consequent costs
will make up a significant portion of the state budget. That,
however, is just the beginning of the analysis.
By helping students obtain scholarships to
private schools, both religious and secular, the STO program might
relieve the burden placed on Arizona’s public schools. The result
could be an immediate and permanent cost savings for the State. See
Brief for Petitioner Arizona Christian School Tuition Organization
31 (discussing studies indicating that the STO program may on net
save the State money); see also
Mueller v.
Allen,
463 U. S. 388, 395 (1983) (“By
educating a substantial number of students [private] schools
relieve public schools of a correspondingly great burden—to the
benefit of all taxpayers”). Underscoring the potential financial
benefits of the STO program, the average value of an STO
scholarship may be far less than the average cost of educating an
Arizona public school student. See Brief for Petitioner Garriott
38. Because it encourages scholarships for attendance at private
schools, the STO tax credit may not cause the State to incur any
financial loss.
Even assuming the STO tax credit has an
adverse effect on Arizona’s annual budget, problems would remain.
To conclude there is a particular injury in fact would require
speculation that Arizona lawmakers react to revenue shortfalls by
increasing respondents’ tax liability.
DaimlerChrysler,
547 U. S., at 344. A finding of causation would depend on the
additional determination that any tax increase would be traceable
to the STO tax credits, as distinct from other governmental
expenditures or other tax benefits. Respondents have not
established that an injunction against application of the STO tax
credit would prompt Arizona legislators to “pass along the supposed
increased revenue in the form of tax reductions.”
Ibid.
Those matters, too, are conjectural.
Each of the inferential steps to show
causation and redressability depends on premises as to which there
remains considerable doubt. The taxpayers have not shown that any
interest they have in protecting the State Treasury would be
advanced. Even were they to show some closer link, that interest is
still of a general character, not particular to certain persons.
Nor have the taxpayers shown that higher taxes will result from the
tuition credit scheme. The rule against taxpayer standing, a rule
designed both to avoid speculation and to insist on particular
injury, applies to respondents’ lawsuit. The taxpayers, then, must
rely on an exception to the rule, an exception next to be
considered.
B
The primary contention of
respondents, of course, is that, despite the general rule that
taxpayers lack standing to object to expenditures alleged to be
unconstitutional, their suit falls within the exception established
by
Flast v.
Cohen,
392 U. S. 83. It must be noted at the
outset that, as this Court has explained,
Flast’s holding
provides a “narrow exception” to “the general rule against taxpayer
standing.”
Bowen v.
Kendrick,
487 U. S. 589, 618
(1988).
At issue in
Flast was
the standing of federal taxpayers to object, on First Amendment
grounds, to a congressional statute that allowed expenditures of
federal funds from the General Treasury to support, among other
programs, “instruction in reading, arithmetic, and other subjects
in religious schools, and to purchase textbooks and other
instructional materials for use in such schools.” 392 U. S., at
85–86.
Flast held that taxpayers have standing when two
conditions are met.
The first condition is that there must be a
“logical link” between the plaintiff’s taxpayer status “and the
type of legislative enactment attacked.”
Id., at 102. This
condition was not satisfied in
Doremus because the statute
challenged in that case—providing for the recitation of Bible
passages in public schools—involved at most an “incidental
expenditure of tax funds.”
Flast, 392 U. S., at 102. In
Flast, by contrast, the allegation was that the Federal
Government violated the Establishment Clause in the exercise of its
legislative authority both to collect and spend tax dollars.
Id., at 103. In the decades since
Flast, the
Court has been careful to enforce this requirement. See
Hein,
551 U. S. 587 (no standing under
Flast to challenge federal executive actions funded by
general appropriations);
Valley Forge,
454 U. S. 464 (no standing under
Flast to challenge an agency’s decision to transfer a
parcel of federal property pursuant to the Property Clause).
The second condition for standing
under
Flast is that there must be “a nexus” between the
plaintiff’s taxpayer status and “the precise nature of the
constitutional infringement alleged.” 392 U. S., at 102. This
condition was deemed satisfied in
Flast based on the
allegation that Government funds had been spent on an outlay for
religion in contravention of the Establishment Clause.
Id., at 85–86. In
Frothingham, by contrast, the
claim was that Congress had exceeded its constitutional authority
without regard to any specific prohibition. 392 U. S., at 104–105.
Confirming that
Flast turned on the unique features of
Establishment Clause violations, this Court has “declined to lower
the taxpayer standing bar in suits alleging violations of any
constitutional provision apart from the Establishment Clause.”
Hein,
supra, at 609 (plurality opinion); see also
Richardson,
418 U. S. 166 (Statement and Account
Clause);
Schlesinger, 418 U. S. 208 (Incompatibility
Clause).
After stating the two conditions for taxpayer
standing,
Flast considered them together, explaining that
individuals suffer a particular injury for standing purposes when,
in violation of the Establishment Clause and by means of “the
taxing and spending power,” their property is transferred through
the Government’s Treasury to a sectarian entity. 392 U. S., at
105–106. As
Flast put it: “The taxpayer’s allegation in
such cases would be that his tax money is being extracted and spent
in violation of specific constitutional protections against such
abuses of legislative power.”
Id., at 106.
Flast
thus “understood the ‘injury’ alleged in Establishment Clause
challenges to federal spending to be the very ‘extract[ion] and
spen[ding]’ of ‘tax money’ in aid of religion alleged by a
plaintiff.”
DaimlerChrysler, 547 U. S., at 348 (quoting
Flast, 392 U. S., at 106)). “Such an injury,”
Flast continued, is unlike “generalized grievances about
the conduct of government” and so is “appropriate for judicial
redress.”
Id., at 106.
Flast found support for its finding
of personal injury in “the history of the Establishment Clause,”
particularly James Madison’s Memorial and Remonstrance Against
Religious Assessments.
DaimlerChrysler,
supra, at
348. In 1785, the General Assembly of the Commonwealth of Virginia
considered a “tax levy to support teachers of the Christian
religion.”
Flast,
supra, at 104, n. 24; see A
Bill Establishing A Provision for Teachers of the Christian
Religion, reprinted in
Everson v.
Board of Ed. of
Ewing,
330 U. S.
1, 74 (1947) (supplemental appendix to dissent of Rutledge,
J.). Under the proposed assessment bill, taxpayers would direct
their payments to Christian societies of their choosing.
Ibid. If a taxpayer made no such choice, the General
Assembly was to divert his funds to “seminaries of learning,” at
least some of which “undoubtedly would have been religious in
character.”
Rosenberger v
. Rector and Visitors of
Univ. of Va.,
515 U. S. 819, 869,
n. 1 (1995) (Souter, J., dissenting) (internal quotation marks
omitted); see also
id., at 853, n. 1 (Thomas, J.,
concurring). However the “seminaries” provision might have
functioned in practice, critics took the position that the proposed
bill threatened compulsory religious contributions. See,
e.g., T. Buckley, Church and State in Revolutionary
Virginia, 1776–1787, pp. 133–134 (1977); H. Eckenrode,
Separation of Church and State in Virginia 106–108 (1910).
In the Memorial and Remonstrance, Madison
objected to the proposed assessment on the ground that it would
coerce a form of religious devotion in violation of conscience. In
Madison’s view, government should not “ ‘force a citizen to
contribute three pence only of his property for the support of any
one establishment.’ ”
Flast,
supra, at 103
(quoting 2 Writings of James Madison 183, 186 (G. Hunt ed. 1901)).
This Madisonian prohibition does not depend on the amount of
property conscripted for sectarian ends. Any such taking, even one
amounting to “three pence only,” violates conscience. 392 U. S., at
103; cf.
supra, at 6–7. The proposed bill ultimately died
in committee; and the General Assembly instead enacted legislation
forbidding “compelled” support of religion. See A Bill for
Establishing Religious Freedom, reprinted in 2 Papers of Thomas
Jefferson 545–546 (J. Boyd ed. 1950); see also
Flast, 392
U. S., at 104, n. 24. Madison himself went on to become, as
Flast put it, “the leading architect of the religion
clauses of the First Amendment.”
Id., at 103.
Flast was thus informed by “the specific evils” identified
in the public arguments of “those who drafted the Establishment
Clause and fought for its adoption.”
Id., at 103–104; see
also Feldman, Intellectual Origins of the Establishment Clause, 77
N. Y. U. L. Rev. 346, 351 (2002) (“[T]he Framers’
generation worried that conscience would be violated if citizens
were required to pay taxes to support religious institutions with
whose beliefs they disagreed”); McConnell, Coercion: The Lost
Element of Establishment, 27 Wm. & Mary L. Rev. 933,
936–939 (1986).
Respondents contend that these principles
demonstrate their standing to challenge the STO tax credit. In
their view the tax credit is, for
Flast purposes, best
understood as a governmental expenditure. That is incorrect.
It is easy to see that tax credits and
governmental expenditures can have similar economic consequences,
at least for beneficiaries whose tax liability is sufficiently
large to take full advantage of the credit. Yet tax credits and
governmental expenditures do not both implicate individual
taxpayers in sectarian activities. A dissenter whose tax dollars
are “extracted and spent” knows that he has in some small measure
been made to contribute to an establishment in violation of
conscience.
Flast,
supra, at 106. In that
instance the taxpayer’s direct and particular connection with the
establishment does not depend on economic speculation or political
conjecture. The connection would exist even if the conscientious
dissenter’s tax liability were unaffected or reduced. See
DaimlerChrysler,
supra, at 348–349. When the
government declines to impose a tax, by contrast, there is no such
connection between dissenting taxpayer and alleged establishment.
Any financial injury remains speculative. See
supra, at
6–10. And awarding some citizens a tax credit allows other citizens
to retain control over their own funds in accordance with their own
consciences.
The distinction between governmental
expenditures and tax credits refutes respondents’ assertion of
standing. When Arizona taxpayers choose to contribute to STOs, they
spend their own money, not money the State has collected from
respondents or from other taxpayers. Arizona’s §43–1089 does not
“extrac[t] and spen[d]” a conscientious dissenter’s funds in
service of an establishment,
Flast, 392 U. S., at 106, or
“ ‘force a citizen to contribute three pence only of his
property’ ” to a sectarian organization,
id., at 103
(quoting 2 Writings of James Madison,
supra, at 186). On
the contrary, respondents and other Arizona taxpayers remain free
to pay their own tax bills, without contributing to an STO.
Respondents are likewise able to contribute to an STO of their
choice, either religious or secular. And respondents also have the
option of contributing to other charitable organizations, in which
case respondents may become eligible for a tax deduction or a
different tax credit. See,
e.g., Ariz. Rev. Stat. Ann.
§43–1088 (West Supp. 2010). The STO tax credit is not tantamount to
a religious tax or to a tithe and does not visit the injury
identified in
Flast. It follows that respondents have
neither alleged an injury for standing purposes under general rules
nor met the
Flast exception. Finding standing under these
circumstances would be more than the extension of
Flast
“to the limits of its logic.”
Hein, 551 U. S.
, at
615 (plurality opinion). It would be a departure from
Flast’s stated rationale.
Furthermore, respondents cannot satisfy the
requirements of causation and redressability. When the government
collects and spends taxpayer money, governmental choices are
responsible for the transfer of wealth. In that case a resulting
subsidy of religious activity is, for purposes of
Flast,
traceable to the government’s expenditures. And an injunction
against those expenditures would address the objections of
conscience raised by taxpayer-plaintiffs. See
DaimlerChrysler, 547 U. S., at 344. Here, by contrast,
contributions result from the decisions of private taxpayers
regarding their own funds. Private citizens create private STOs;
STOs choose beneficiary schools; and taxpayers then contribute to
STOs. While the State, at the outset, affords the opportunity to
create and contribute to an STO, the tax credit system is
implemented by private action and with no state intervention.
Objecting taxpayers know that their fellow citizens, not the State,
decide to contribute and in fact make the contribution. These
considerations prevent any injury the objectors may suffer from
being fairly traceable to the government. And while an injunction
against application of the tax credit most likely would reduce
contributions to STOs, that remedy would not affect noncontributing
taxpayers or their tax payments. As a result, any injury suffered
by respondents would not be remedied by an injunction limiting the
tax credit’s operation.
Resisting this conclusion, respondents suggest
that Arizonans who benefit from §43–1089 tax credits in effect are
paying their state income tax to STOs. In respondents’ view, tax
credits give rise to standing even if tax deductions do not, since
only the former yield a dollar-for-dollar reduction in final tax
liability. See Brief for Respondent Winn et al. 5–6; Tr. of
Oral Arg. 35–36. But what matters under
Flast is whether
sectarian STOs receive government funds drawn from general tax
revenues, so that moneys have been extracted from a citizen and
handed to a religious institution in violation of the citizen’s
conscience. Under that inquiry, respondents’ argument fails. Like
contributions that lead to charitable tax deductions, contributions
yielding STO tax credits are not owed to the State and, in fact,
pass directly from taxpayers to private organizations. Respondents’
contrary position assumes that income should be treated as if it
were government property even if it has not come into the tax
collector’s hands. That premise finds no basis in standing
jurisprudence. Private bank accounts cannot be equated with the
Arizona State Treasury.
The conclusion that the
Flast
exception is inapplicable at first may seem in tension with several
earlier cases, all addressing Establishment Clause issues and all
decided after
Flast. See
Mueller,
463 U. S. 388;
Nyquist v.
Mauclet,
432
U. S. 1 (1977);
Hunt v.
McNair,
413 U. S. 734 (1973);
Walz v.
Tax Comm’n of City of New York,
397 U. S. 664 (1970);
cf.
Hibbs v.
Winn,
542 U. S. 88 (reaching only threshold
jurisdictional issues). But those cases do not mention standing and
so are not contrary to the conclusion reached here. When a
potential jurisdictional defect is neither noted nor discussed in a
federal decision, the decision does not stand for the proposition
that no defect existed. See,
e.g.,
Hagans v.
Lavine,
415
U. S. 528, 535, n. 5 (1974) (“[W]hen questions of
jurisdiction have been passed on in prior decisions
sub
silentio, this Court has never considered itself bound when a
subsequent case finally brings the jurisdictional issue before
us”);
United States v.
L. A. Tucker Truck Lines,
Inc.,
344 U. S.
33, 38 (1952) (“Even as to our own judicial power of
jurisdiction, this Court has followed the lead of Mr. Chief Justice
Marshall who held that this Court is not bound by a prior exercise
of jurisdiction in a case where it was not questioned and it was
passed
sub silentio”);
Frothingham,
surpa, at 486. The Court would risk error if it relied on
assumptions that have gone unstated and unexamined.
Furthermore, if a law or practice, including a
tax credit, disadvantages a particular religious group or a
particular nonreligious group, the disadvantaged party would not
have to rely on
Flast to obtain redress for a resulting
injury. See
Texas Monthly, Inc. v.
Bullock, 489
U. S., at 8 (plurality opinion) (finding standing where a general
interest magazine sought to recover tax payments on the ground that
religious periodicals were exempt from the tax). Because standing
in Establishment Clause cases can be shown in various ways, it is
far from clear that any nonbinding
sub silentio holdings
in the cases respondents cite would have depended on
Flast. See,
e.g.,
Walz,
supra,
at 666–667 (explaining that the plaintiff was an “owner of real
estate” in New York City who objected to the city’s issuance of
“property tax exemptions to religious organizations”). That the
plaintiffs in those cases could have advanced arguments for
jurisdiction independent of
Flast makes it particularly
inappropriate to determine whether or why standing should have been
found where the issue was left unexplored.
If an establishment of religion is alleged to
cause real injury to particular individuals, the federal courts may
adjudicate the matter. Like other constitutional provisions, the
Establishment Clause acquires substance and meaning when explained,
elaborated, and enforced in the context of actual disputes. That
reality underlies the case-or-controversy requirement, a
requirement that has not been satisfied here.
* * *
Few exercises of the judicial
power are more likely to undermine public confidence in the
neutrality and integrity of the Judiciary than one which casts the
Court in the role of a Council of Revision, conferring on itself
the power to invalidate laws at the behest of anyone who disagrees
with them. In an era of frequent litigation, class actions,
sweeping injunctions with prospective effect, and continuing
jurisdiction to enforce judicial remedies, courts must be more
careful to insist on the formal rules of standing, not less so.
Making the Article III standing inquiry all the more necessary are
the significant implications of constitutional litigation, which
can result in rules of wide applicability that are beyond Congress’
power to change.
The present suit serves as an
illustration of these principles. The fact that respondents are
state taxpayers does not give them standing to challenge the
subsidies that §43–1089 allegedly provides to religious STOs. To
alter the rules of standing or weaken their requisite elements
would be inconsistent with the case-or-controversy limitation on
federal jurisdiction imposed by Article III.
The judgment of the Court of Appeals is
reversed.
It is so ordered.
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