Flast v. Cohen
The Supreme Court ruled that federal taxpayers can sue to challenge government spending that they claim violates the First Amendment's ban on government support of religion, carving out an exception to a 45-year-old rule that had barred ordinary taxpayers from challenging federal spending in court.
The decision opened federal courthouse doors to a specific, narrow category of taxpayer lawsuits over church-state spending disputes, while leaving in place the broader rule that taxpayers generally cannot sue just because they disagree with how the government spends their tax dollars.
How it got here: A three-judge federal district court dismissed the suit for lack of taxpayer standing, relying on a 1923 precedent; the taxpayers appealed directly to the Supreme Court.
The Case in Depth
What happened
A group of taxpayers sued federal officials responsible for administering the Elementary and Secondary Education Act of 1965, claiming that federal money was being used to fund religious instruction, textbooks, and materials in religious schools. They argued this violated the First Amendment's rules against government establishment of religion and interference with free exercise of religion, and asked a court to block the spending.
The question before the Court
Could ordinary taxpayers go to federal court to argue that a federal education-spending law violated the First Amendment's rules against government support of religion?
The Court's answer
Yes — the Court ruled that these taxpayers could sue, carving out a specific exception to the old rule that taxpayers generally lack standing to challenge federal spending. The Court said a taxpayer has standing when the challenged program is a real spending program under Congress's tax-and-spend power, and when the taxpayer claims the spending violates a specific constitutional limit on that power — not just a general claim that Congress overstepped its authority.
Because the Establishment Clause was specifically written to stop the government from using its taxing and spending power to support religion, the Court held these taxpayers met that test. It distinguished this case from the 1923 case that had denied a taxpayer standing, because that earlier taxpayer's claim rested on more general constitutional objections rather than a specific limit on spending power.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Taxpayers who believe federal money is being funneled to religious schools or institutions in violation of the First Amendment now have a path into federal court to challenge that spending, something they couldn't do before. Government agencies administering federal grant programs involving religious institutions must be more attentive to constitutional limits, since taxpayers can now hold them accountable in court.
What changes now
The case returns to the lower court, where the taxpayers can now pursue their claim on the merits — that is, argue whether the education funding actually violates the Establishment Clause — since the Supreme Court only decided they had the right to bring the suit. The Court expressed no opinion on whether the funding program is actually unconstitutional, leaving that question for further proceedings.
What this does not decide
The Court did not rule on whether the education funding actually violates the First Amendment, only that the taxpayers could bring the lawsuit. It also limited its new standing rule to challenges over Congress's taxing-and-spending power tied to specific constitutional limits like the Establishment Clause, not to general claims that a law exceeds Congress's overall powers.
Concurrences and dissents
Concurrence — Justice Douglas
Justice Douglas joined the Court's opinion but argued its test was not durable and would eventually erode, leading to the effective end of the old barrier against taxpayer suits. He argued the Court should simply discard that old barrier now, contending it reflected an outdated era of judicial overreach into economic policy rather than a sound theory of standing, and favored broad taxpayer standing to challenge constitutional violations.
Concurrence — Justice Stewart
Justice Stewart read the Court's holding narrowly, limited strictly to taxpayer standing to raise Establishment Clause claims. He reasoned that because the Establishment Clause specifically bars using tax money to support religion, every taxpayer has a personal constitutional right not to be taxed for that purpose, distinguishing this case from the earlier precedent that involved only a general claim about the scope of congressional power.
Concurrence — Justice Fortas
Justice Fortas would confine the ruling strictly to Establishment Clause challenges, emphasizing that there is no basis in the decision for extending taxpayer standing to other kinds of constitutional claims against spending. He stressed the unique historical link between taxation and the establishment of religion as the sole justification for allowing this narrow category of suits.
Dissent — Justice Harlan
“These are and must be, to adopt Professor Jaffe's useful phrase, "public actions" brought to vindicate public rights.”Harlan's central objection that taxpayer suits like this vindicate rights shared by everyone, not personal interests.
Justice Harlan argued the majority's new two-part test was arbitrary and unrelated to any real measure of a taxpayer's personal stake in a case, noting that a taxpayer's practical interest in stopping an unconstitutional expenditure doesn't logically depend on whether the money came from a 'spending' program or a 'regulatory' one, or on which constitutional clause is invoked. He viewed these taxpayer suits as fundamentally different from ordinary lawsuits because they vindicate rights shared by all citizens rather than any personal or financial interest, calling them public actions that should require congressional authorization rather than open-ended judicial recognition. He would have affirmed the dismissal of the suit.
How the Court got there
The legal reasoning, step by step
- The Court explained that federal courts can only hear real 'cases' and 'controversies,' a limit called justiciability that keeps courts from issuing advisory opinions or intruding on the other branches of government; standing to sue is one part of that limit, focused on whether the person suing is a proper party, not on whether the underlying issue itself can be decided.
- The Court rejected the government's argument that separation of powers creates an absolute ban on taxpayer lawsuits challenging federal spending, reasoning that whether someone is a proper party to sue doesn't by itself raise the kind of interference-with-other-branches problem that separation of powers is meant to prevent.
- The Court then set out a two-part test for when a taxpayer has the personal stake needed to sue over federal spending: first, the taxpayer must be challenging an actual exercise of Congress's power to tax and spend for the general welfare, not just an incidental expense of a regulatory law; second, the taxpayer must claim the spending violates a specific constitutional limit on that taxing-and-spending power, not simply that Congress exceeded its general powers.
- Applying that test, the Court found that the Establishment Clause was historically understood as a specific check on Congress's power to tax and spend in support of religion, pointing to James Madison's writings opposing even minimal taxation for religious purposes.
- Because the education law involved a substantial spending program and the taxpayers claimed it breached this specific limit on the spending power, the Court concluded they had established the necessary connection between their status as taxpayers and their constitutional claim, satisfying the standing test.
Doctrinal impact
Cases affected by this decision
Limits Frothingham v. Mellon (262 U.S. 447)
The Court narrowed the old bar on taxpayer standing, carving out an exception for specific constitutional spending-power challenges.