Summary

Flast v. Cohen, 392 U.S. 83, was a Supreme Court case that dealt with the issue of standing to sue. A group of taxpayers, including Florence Flast, sued the government for unconstitutional use of federal funding, challenging the Elementary and Secondary Education Act of 1965. The Act gave funding to private religious schools, and Flast argued that this violated the Establishment Clause found in the First Amendment of the U.S. Constitution. The U.S. District Court for the Southern District of New York denied their claim, saying that based on the precedent set forth in Frothingham v. Mellon, the taxpayers had no standing to sue the government based solely on their position as a taxpayer. The Supreme Court heard the case, and decided to reverse the decision of the lower court. The Court decided on a two pronged test for determining if a taxpayer had standing to sue the government. The two pronged test is commonly referred to as “the Flast Test.”

First Timeline

Background

A group of taxpayers, including Flast, challenged the Elementary and Secondary Education Act of 1965, which provided federal funding to secular schools to cover various educational costs. Flast argued that providing tax dollars to a secular school was a violation of the Establishment Clause, and an unconstitutional use of the money. In Frothingham v. Mellon (1923), the Court ruled that taxpayers did not have standing to sue the government, if the only injury is an anticipated increase in taxes. The District Court ruled that Flast did not have standing to sue, and the Supreme Court decided to hear the case.

Procedural History

Flast v. Cohen was first heard in the US District Court for the Southern District of New York in 1967. The District Court dismissed the case, saying that Flast lacked standing to sue the government as a taxpayer. The Supreme Court heard the case on March 12, 1968. The case was decided on June 10, 1968, where the Supreme Court released their decision to reverse the lower court’s ruling, and provide the 2 prong test for deciding standing.

Issues

Did Flast, as a taxpayer, have standing to sue the government for unconstitutional use of his tax money?

The Federal taxpayer wanted to confirm the constitutionality of the Elementary and Secondary Education Act of 1965. The taxpayers believed that the Act; which provided funding for textbooks and other instructional materials to both public and parochial schools was unfair and unconstitutional. They felt as if this violated the Establishment Clause and the Free Exercise Clauses in the First Amendment.This case set new precedent, which now allowed taxpayers to have standing to challenge Federal Statutes in certain cases.

Arguments by Petitioner

Florence Flast and several other taxpayers believed that the government’s use of taxes to provide funds to religious schools was a violation of the Establishment Clause and the Free Exercise Clauses of the First Amendment. Flast argued that the Elementary and Secondary Education Act of 1965, the legislation granting the federal government the authority to distribute funds in this manner, was unconstitutional. In 1968, Flast and others sued Wilbur Cohen, the U.S. Secretary of Health, Education, and Welfare challenging the legislation.

Arguments by Respondent

Decision

The court ruled in favor of Flast in an 8-1 decision. It was determined that taxpayers can have standing in matters of both spending programs and taxes imposed by the federal government.  In order for this to have happened, Flast had to meet two requirements in regards to obtaining standing. First, there had to be a rational connection between an existing legislation. Secondly, the taxpayer must establish a direct connection between their status as a taxpayer, and the injury the legislation caused. The court also mentioned that the taxpayer needs to show that the legislation was outside of the government’s constitutional power to enact. Taxes which ended up to assist religious purpose was a direct violation of the Establishment Clause found within the First Amendment.

Majority Opinion

Chief Justice Warren wrote the majority opinion, joined by Justices Black, Douglas, Brennan, Stewart, White, Fortas, and Marshall. The Court reversed the opinion of the lower court, ruling that taxpayers did indeed have standing to sue the government, if they could satisfy two nexuses. The test, commonly referred to as the Flast Test, requires that the taxpayers pass these two requirements before it is determined that they have standing to sue the government. The first one being that, ”taxpayers must establish a logical link between that status and the type of legislative enactment attacked,”. Secondly, “taxpayers must also establish a nexus between that status and the precise nature of the constitutional infringement alleged. They must show that the statute exceeds specific constitutional power” (Justia). The Court ruled that Flast was able to meet both of these requirements, and therefore they had standing, as taxpayers, to sue the government.  

Concurring Opinions

Justice Douglas had a concurring opinion, which supported Frothingham v Mellon being overturned. Prior to this case, he felt as if the Constitution along with Congress had violated many taxpayer’s rights. It is the court’s duty to protect the right of citizens and make sure neither the legislative nor executive infringe on them. He believes that the two requirements for standing created from this decision is not necessarily strong, however he believes that change is needed because congress has had a history of ignoring the Constitution.

Justice Stewart, also joined Justice Douglas in an concurring opinion. He stated that taxpayers do have standing in this case due to a violation of the Establishment Clause. With this being said, Frothingham is not a case to be undermine. This previous case should serve as a reminder that the court is not a place for citizens to come to every time they find a problem with the federal government.

Justice Fortas concurring opinion relieved that he also stood behind the Establishment Clause. He stressed the importance of the separation of church and state rooted from the Constitution. In matters like this, the judicial system is called upon to uphold and represent the law. With this being said, taxpayers should not get out of control and feel the need to challenge Congressional spending power that don’t relate to the Establishment Clause.

Dissenting Opinion

Justice Harlan had the only dissenting opinion on this case. He agreed that taxpayers did have standing, something that Frothingham denied. Most importantly, citizens should not challenge the constitutionality of Congressional action. He argued that the Establishment Clause did not specifically place any limits on public funds. As a result, Congress can spend funds on whatever unless there are clear restrictions.  

Full Text of Opinions

• Majority Opinion (Warren)
• Concurring Opinion (Douglas) 
• Concurring Opinion (Fortas)
• Concurring Opinion (Stewart)
• Dissenting Opinion (Harlan)

Significance/Impact

The significance of this case is quite large. Previously, people had not been able to bring suit to the government based solely on their status as a taxpayer, but this was overturned in Flast v. Cohen (1968). This case opened up a new book in understanding the powers given to the Government in the Constitution. For the first time a citizen was granted standing in the  Supreme Court  in which the Establishment Clause was the center of the case. The Supreme Court used a test which were the requirements for a citizen or party to having standing against the Congressional spending powers granted in the Constitution. For the first time the precedent set in Frothingham v. Mellon was amended and a new precedent  was set forth. Before Flast v. Cohen there was 45 years where it was unconstitutional  for a citizen or taxpayer to contest the reasoning for certain Congressional spending. Without deciding the church-state question, the Supreme Court in Flast v. Cohen in 1968 threw out the Frothingham v. Mellon precedent as inconsistent with modern conditions.

Second Timeline

Constitutional Provisions

Flast argued that the use federal funding to buy secular textbooks for use in religious schools was a violation of the Establishment Clause and the Free Exercise Clause of the First Amendment. As far as standing is concerned, the government argued that the constitutional separation of powers barred suits brought to the court by taxpayers, based solely on their position as a taxpayer.

Government Law or Action Under Review

• The Elementary and Secondary Education Act of 1965 

Important Precedents

•  Frothingham v Mellon (1923)
•  United Public Workers v. Mitchell (1947)
•  Baker v Carr (1962)
• Poe v Ullman (1963)
• Zemel v Rusk (1965)
• Board of Education v Allen (1968)

Important Subsequent Cases

• Valley Forge Christian College v. Americans United for Separation of Church and State (1982)
• Hein v. Freedom From Religion Foundation (2007)
• Arizona Christian School Tuition Organization v. Winn (2011)

Web Resources

Chicago-Kent College of Law at Illinois Tech. “Flast v. Cohen.” Oyez.  

            https://www.oyez.org/cases/1967/416 (accessed June 23, 2016).

Wikipedia contributors, “Flast v. Cohen,” Wikipedia, The Free Encyclopedia,

            https://en.wikipedia.org/w/index.php?title=Flast_v._Cohen&oldid=719620034(accessed June 22, 2016).

Academic Books, Articles, and Law Reviews

“Taxpayer Suits and the Aggregation of Claims: The Vitiation of Flast by Snyder.” The Yale Law  

           Journal 79, no. 8 (1970): 1577-592.

Morgan, Richard E. Political Science Quarterly 91, no. 3 (1976): 515-16.

Contributors

Spring 2016: Heather Coutinho, Yaminah Edwards, Amelia Hawkins, & Richard Johnson

Tasks for Future Contributors

When referring to the article at hand, an important addition would be cases which deal with standing against the government. Similar cases could have been added to the timeline to illustrate the different cases where taxpayers attempted to obtain standing to sue the government, but were denied. These other Supreme Court cases would help us further understand the attitudes and ideological position of the judges hearing these later cases.