What's the harm? Nontaxpayer standing to challenge religious symbols

Harvard Journal of Law and Public Policy

Volumn 34, Issue 3, 2011, Pages 1071-1097

  Spencer, David ^a  

^a NONE

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EID: 80055012855     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (158)

1. See, e.g., NOAH FELDMAN, DIVIDED BY GOD: AMERICA'S CHURCH-STATE PROBLEM-AND WHAT WE SHOULD DO ABOUT IT 16, 204-05, 213-14 (2005);
2. Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 126-27 (1992).
3. This Note only addresses nontaxpayer standing. Federal and state taxpayers ordinarily do not have standing as taxpayers to challenge government expenditures. See DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 343, 345 (2006).
4. Under Flast v. Cohen, 392 U. S. 83, 102-03(1968), however, state and federal taxpayers do have taxpayer standing to assert an Establishment Clause challenge against specific legislative appropriations that directly benefit religion.
5. See also Hein v. Freedom from Religion Found., Inc., 551 U. S. 587, 608 (2007) (plurality opinion) (denying standing because the challenged Executive expenditures "were not expressly authorized or mandated by any specific congressional enactment"). After Hein, the future of taxpayer standing under Flast is uncertain.
6. See Ira C. Lupu & Robert W. Tuttle, Ball on a Needle: Hein v. Freedom from Religion Foundation, Inc. and the Future of Establishment Clause Adjudication, 2008 BYU L. REV. 115, 119. Under current doctrine municipal taxpayers ordinarily do have standing to challenge the misuse of municipal funds.
7. See Cuno, 547 U. S. at 349;
8. Frothingham v. Mellon, 262 U. S. 447, 486-87 (1923). The future vitality of municipal taxpayer standing is also uncertain.
9. * 19-20 (6th Cir. Feb. 11, 2011) (Sutton, J., concurring) (arguing that the justification for municipal taxpayer standing is no longer defensible in contemporary America and in light of the Supreme Court's current standing doctrine more generally).
10. The most complete scholarly discussions to date are David Harvey, Comment, It's Time To Make Non-Economic or Citizen Standing Take a Seat in "Religious Display" Cases, 40 DUQ. L. REV. 313 (2002)
11. and Marc Rohr, Tilting at Crosses: Nontaxpayer Standing To Sue Under the Establishment Clause, 11 GA. ST. U. L. REV. 495 (1995).
12. See City of Edmond v. Robinson, 517 U. S. 1201, 1201-03 (1996) (Rehnquist, C. J., dissenting from denial of writ of certiorari) (joined by Justices Scalia and Thomas).
13. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U. S. 1, 11 (2004).
14. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992).
15. 454 U. S. 464 (1982). The Court has also decided several religious symbol cases on the merits without questioning whether the plaintiffs had standing.
16. Valley Forge, 454 U. S. at 467-68.
17. 374 U. S. 203 (1963).
18. Valley Forge, 454 U. S. at 487 n. 22.
19. Schempp held in a footnote that the plaintiffs, who challenged classroom Bible-reading and prayer, had standing because they were "directly affected by the laws and practices against which their complaints are directed." 374 U. S. at 224 n. 9. But the Court's explanation for this conclusion is hardly illuminating. Of the four cases it cited, only one expressly mentioned standing.
20. That case, Doremus v. Board of Education, 342 U. S. 429(1952), "involved the same substantive issues" as Schempp but was dismissed in part "because of the appellants' failure to establish standing as taxpayers."
21. Schempp, 374 U. S. at 224 n. 9.
22. See, e.g., Newdow v. Lefevre, 598 F.3d 638, 642 (9th Cir. 2010) (granting standing based on plaintiff's "unwelcome direct contact" with the national motto "In God We Trust" on U. S. coins and currency);
23. ACLU of Ky. v. Grayson Cnty., 591 F.3d 837, 843 (6th Cir. 2010) (holding that plaintiffs suffered injury adequate for standing by coming into "direct and unwelcome contact with a governmentsponsored religious object").
24. See, e.g., Barnes-Wallace v. City of San Diego, 530 F.3d 776, 792 (9th Cir. 2008) (Berzon, J., concurring) (observing that "avoidance of public land that one would otherwise visit and use is an injury that gives rise to standing");
25. Gonzales v. N. Twp. of Lake Cnty., 4 F.3d 1412, 1416 (7th Cir. 1993) (granting standing because the plaintiff "altered his behavior" by avoiding a park with a crucifix display).
26. This is the law in the Fourth Circuit, Suhre v. Haywood County, 131 F.3d 1083, 1086 (4th Cir. 1997);
27. the Fifth Circuit, Doe v. Tangipahoa Parish School Board, 494 F.3d 494, 497 & n. 3 (5th Cir. 2007) (en banc);
28. the Sixth Circuit, Grayson County, 591 F.3d at 843;
29. the Seventh Circuit, Books v. Elkhart County, 401 F.3d 857, 861 (7th Cir. 2005);
30. the Ninth Circuit, Newdow, 598 F.3d at 642;
31. the Tenth Circuit, Green v. Haskell County Board of Commissioners, 568 F.3d 784, 793 (10th Cir. 2009);
32. the Eleventh Circuit, Saladin v. City of Milledgeville, 812 F.2d 687, 692 (11th Cir. 1987);
33. and the D. C. Circuit, In re Navy Chaplaincy, 534 F.3d 756, 763-64 (D. C. Cir. 2008).
34. See, e.g., Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1028 (10th Cir. 2008) (finding plaintiff's allegations of "direct, personal contact" with and "constant exposure" to a city symbol sufficient to confer standing (emphasis omitted));
35. Tangipahoa Parish Sch. Bd., 494 F.3d at 497-98 (denying standing because plaintiffs offered no evidence that they attended a school board session at which a prayer like those challenged was recited);
36. Suhre, 131 F.3d at 1087 (identifying "the proximity of the plaintiffs to the conduct they challenge[] as a critical factual distinction" between cases that give rise to standing and those that do not).
37. Cf. Caldwell v. Caldwell, 545 F.3d 1126, 1132-33 (9th Cir. 2008) (finding plaintiff's connection to religious content on a public university's webpage too tenuous to support standing).
38. See, e.g., Washegesic v. Bloomingdale Pub. Sch., 33 F.3d 679, 683 (6th Cir. 1994) (avowing that "[t]he practices of our own community may create a larger psychological wound than someplace we are just passing through");
39. Freedom from Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1469 (7th Cir. 1988);
40. Saladin, 812 F.2d at 693 (holding that plaintiffs had standing in part because "they are part of the City and are directly affronted by the presence of the allegedly offensive word on the city seal").
41. See, e.g., Books, 401 F.3d at 861 (concluding that "it is enough for standing purposes that a plaintiff allege that he 'must come into direct and unwelcome contact with the religious display to participate fully as [a] citizen[]... and to fulfill... legal obligations'" (alterations and omissions in original)
42. (quoting Books v. City of Elkhart, 235 F.3d 292, 299 (7th Cir. 2000)));
43. ACLU of N. J. v. Twp. of Wall, 246 F.3d 258, 266 (3d Cir. 2001) (opining that plaintiff would lack standing under the law of any circuit because "it is unclear whether he [observed the challenged display] to describe [it] for this litigation or whether, for example, he observed the display in the course of satisfying a civic obligation at the municipal building").
44. See, e.g., Green, 568 F.3d at 793-94 (plaintiff "frequently" forced to confront challenged monument (internal quotation marks omitted));
45. Glassroth v. Moore, 335 F. 3d 1282, 1292 (11th Cir. 2003).
46. See, e.g., Books, 401 F.3d at 861-62;
47. Washegesic, 33 F.3d at 682-83;
48. Zielke, 845 F.2d at 1468-69.
49. See, e.g., Harris v. City of Zion, 927 F.2d 1401, 1405-06 (7th Cir. 1991) (holding that plaintiffs suffered cognizable injury because they "mightily str[o]ve[] to avoid any visual contact" with the city seal and thereby evinced a "willingness... to incur a tangible, albeit small cost that validates the existence of genuine distress and warrants the invocation of federal jurisdiction" (internal quotation marks omitted));
50. ACLU of Ill. v. City of St. Charles, 794 F.2d 265, 268 (7th Cir. 1986) (finding injury where plaintiffs "have been led to alter their behavior-to detour, at some inconvenience to themselves, around the streets they ordinarily use").
51. See, e.g., Buono v. Norton, 371 F.3d 543, 547 (9th Cir. 2004) ("We have repeatedly held that inability to unreservedly use public land suffices as injury-infact.");
52. Hawley v. City of Cleveland, 773 F.2d 736, 740 (6th Cir. 1985) (holding that plaintiff has standing to challenge sectarian government action that "impair[s] his actual use and enjoyment" of public property);
53. ACLU of Ga. v. Rabun Cnty. Chamber of Commerce, Inc., 698 F.2d 1098, 1103 (11th Cir. 1983) (per curiam) (holding plaintiffs' allegations that the presence of a large cross structure "deprived [them] of their beneficial right of use and enjoyment of a state park" sufficient to establish injury-in-fact).
54. Compare Freedom from Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1467 (7th Cir. 1988) ("The[plaintiffs] allege... that they are offended by [the display's] presence; but they admit that they have not altered their behavior.... The psychological harm that results from witnessing conduct with which one disagrees... is not sufficient to confer standing.")
55. with Doe v. Cnty. of Montgomery, 41 F.3d 1156, 1160 (7th Cir. 1994) (rejecting the district court's conclusion "that in this circuit direct and unwelcome exposure to a religious message is merely a psychological injury unless a plaintiff... alters his behavior because of the religious message").
56. Vasquez v. L. A. Cnty., 487 F.3d 1246, 1250, 1253 (9th Cir. 2007).
57. The Second Circuit found standing where there was both direct contact and altered behavior, so it is impossible to know if altered behavior was necessary. Cooper v. U. S. Postal Serv., 577 F.3d 479, 490-91 (2d Cir. 2009). In the only Third Circuit case on point, the court did not decide whether either direct contact or altered behavior will give rise to standing because it concluded the plaintiffs' allegations failed to satisfy even the laxer direct and unwelcome contact test.
58. ACLU of N. J. v. Twp. of Wall, 246 F.3d 258, 265-66 (3d Cir. 2001). The Eighth Circuit has explicitly declined to decide between the two tests because in its only case directly on point it concluded that the plaintiffs satisfied both.
59. ACLU Neb. Found. v. City of Plattsmouth, 358 F.3d 1020, 1030 (8th Cir. 2004)
60. adopted in relevant part, 419 F.3d 772, 775 n. 4 (8th Cir. 2005) (en banc).
61. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U. S. 464, 487 n. 22 (1982).
62. In adopting the direct and unwelcome contact test, most courts of appeals have relied predominantly on Valley Forge's rationalization of Schempp or the identical reasoning of their sister circuits. See, e.g., Vasquez, 487 F.3d at 1250-53;
63. Suhre v. Haywood Cnty., 131 F.3d 1083, 1086-87 (4th Cir. 1997);
64. Cnty. of Montgomery, 41 F.3d at 1159-61;
65. Washegesic v. Bloomingdale Pub. Sch., 33 F.3d 679, 682-83 (6th Cir. 1994);
66. Foremaster v. City of St. George, 882 F.2d 1485, 1489-90 (10th Cir. 1989);
67. Saladin v. City of Milledgeville, 812 F.2d 687, 691-93 (11th Cir. 1987). The altered behavior test also originates from Valley Forge's explanation of Schempp.
68. See Rabun Cnty., 698 F.2d at 1107.
69. Valley Forge, 454 U. S. at 487 n. 22 (emphasis added).
70. Sch. Dist. of Abington Twp. v. Schempp, 374 U. S. 203, 208 (1963) (citation and internal quotation marks omitted).
71. Valley Forge, 454 U. S. at 486.
72. See In re Navy Chaplaincy, 534 F.3d 756, 763-64 (D. C. Cir. 2008);
73. Suhre v. Haywood Cnty., 131 F.3d 1083, 1088 (4th Cir. 1997) ("The best proof of our reading of Valley Forge lies in the actions of the Supreme Court itself.");
74. Murray v. City of Austin, 947 F.2d 147, 151-52 (5th Cir. 1991) (giving "considerable weight to the fact that standing has not been an issue in the Supreme Court in similar cases");
75. see also Newdow v. Roberts, 603 F.3d 1002, 1014 (D. C. Cir. 2010) (Kavanaugh, J., concurring) (finding the "prospect extremely unlikely" that "the Supreme Court repeatedly overlooked a major standing problem and decided a plethora of highly controversial and divisive Establishment Clause cases unnecessarily and inappropriately").
76. See, e.g., FEC v. NRA Political Victory Fund, 513 U. S. 88, 97 (1994);
77. United States v. L. A. Tucker Truck Lines, Inc., 344 U. S. 33, 38 (1952) ("[T]his 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." (citations omitted));
78. see also Navy Chaplaincy, 534 F.3d at 764.
79. See Ariz. Christian Sch. Tuition Org. v. Winn, No. 09-987, slip op. at 17-18 (U. S. Apr. 4, 2011). In a passage particularly pertinent to standing in religious symbol cases, the Court gave the following justification for applying the rule against sub silentio jurisdictional holdings: "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."
80. 392 U. S. 83 (1968).
81. See, e.g., DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 340 (2006);
82. Adarand Constructors, Inc. v. Mineta, 534 U. S. 103, 110 (2001) (per curiam).
83. The district court in Van Orden v. Perry, 545 U. S. 677(2005), found standing because the plaintiff's allegedly frequent and offensive contact with the Ten Commandments monument clearly satisfied "the very liberal interpretation" of standing followed by the courts of appeals in general, and the Fifth Circuit in particular.
84. * 2 (W. D. Tex. Oct. 2, 2002).
85. In Lynch v. Donnelly, 465 U. S. 668(1984), the First Circuit concluded that the plaintiffs had standing exclusively because they were municipal taxpayers.
86. Donnelly v. Lynch, 691 F.2d 1029, 1030-32 (1st Cir. 1982).
87. The lower courts in McCreary County v. ACLU of Kentucky, 545 U. S. 844 (2005)
88. and County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U. S. 573(1989), did not consider the plaintiffs' standing, but the cases are factually consistent with the supposition that the plaintiffs had standing as municipal taxpayers.
89. See ACLU of Ky. v. McCreary Cnty., 354 F.3d 438, 441-42 (6th Cir. 2003) (observing that the defendant counties "erected" the challenged displays);
90. ACLU, Greater Pittsburgh Chapter, v. Cnty. of Allegheny, 842 F.2d 655, 656-57 (3d Cir. 1988) (noting that plaintiffs challenged the "expenditure of public funds", including a county-supplied "dolly and minimal aid to transport [the religious display] to and from the courthouse basement" and decorations annually "purchased at public expense").
91. 545 U. S. 677 (2005).
92. 545 U. S. 844 (2005).
93. See Edith Brown Clement, Public Displays of Affection... for God: Religious Monuments After McCreary and Van Orden, 32 HARV. J. L. & PUB. POL'Y 231, 232-33 (2009).
94. See City of Edmond v. Robinson, 517 U. S. 1201 (1996) (Rehnquist, C. J., dissenting from denial of certiorari) (joined by Justices Scalia and Thomas);
95. ACLU of N. J. v. Twp. of Wall, 246 F.3d 258, 265-66 (3d Cir. 2001) (Alito, J.).
96. See Suhre v. Haywood Cnty., 131 F.3d 1083, 1085 (4th Cir. 1997) ("It has been repeatedly noted that 'the concept of injury for standing purposes is particularly elusive in Establishment Clause cases.'"
97. (quoting Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir. 1991))).
98. Salazar v. Buono, 130 S. Ct. 1803, 1814 (2010). The Court did not have occasion to decide whether Buono's offense constituted a cognizable injury because Buono had standing to enforce an injunction he had obtained against the cross in previous litigation.
99. * 2 (W. D. Tex. Oct. 2, 2002).
100. See also, e.g., Vasquez v. L. A. Cnty., 487 F.3d 1246, 1251 (9th Cir. 2007) (finding injury-in-fact based on plaintiff's belief that removal of the image of a cross from the county seal "convey[ed] an anti-Christian message" that made him "feel aggrieved");
101. Glassroth v. Moore, 335 F.3d 1282, 1292 (11th Cir. 2003) (holding plaintiffs suffered cognizable injury by observing a Ten Commandments monument that contained "religious views" they did not share and "consider[ed]... offensive").
102. See, e.g., Summers v. Earth Island Inst., 129 S. Ct. 1142, 1151 (2009);
103. Lujan v. Defenders of Wildlife, 504 U. S. 555, 573-74 (1992).
104. See, e.g., Lujan, 504 U. S. at 564 (denying standing because plaintiffs could not show "actual or imminent" personal injury and therefore alleged only ideological disagreement (internal quotation omitted));
105. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U. S. 464, 485 (1982) (denying standing where plaintiff alleges only "the psychological consequence presumably produced by observation of conduct with which one disagrees");
106. United States v. Students Challenging Regulatory Agency Procedures, 412 U. S. 669, 689 n. 14 (1973) (plaintiffs must show some sort of injury-if only a "trifle"-beyond their ideological disagreement with a governmental action);
107. Sierra Club v. Morton, 405 U. S. 727, 734-35 (1972) (finding no standing because plaintiffs failed to allege that the asserted aesthetic harm would affect them personally).
108. 392 U. S. 83 (1968).
109. 551 U. S. 587 (2007).
110. Books v. Elkhart Cnty., 401 F.3d 857, 870 (7th Cir. 2005) (Easterbrook, J., dissenting) (citations omitted).
111. Catholic League for Religious & Civil Rights v. City & Cnty. of San Francisco, 624 F.3d 1043, 1046-48 (9th Cir. 2010) (en banc).
112. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U. S. 464, 486 (1982) ("[S]tanding is not measured by the intensity of the litigant's interest.").
113. See In re Navy Chaplaincy, 534 F.3d 756, 762-63 (D. C. Cir. 2008).
114. ACLU of N. J. v. Twp. of Wall, 246 F.3d 258, 265 (3d Cir. 2001).
115. Saladin v. City of Milledgeville, 812 F.2d 687, 689, 693 n. 9 (11th Cir. 1987).
116. 468 U. S. 737 (1984).
117. Id. (quoting Heckler v. Mathews, 465 U. S. 728, 739-40 (1984)).
118. 492 U. S. 573, 597 (1989).
119. See The Supreme Court, 2009 Term-Leading Cases, 124 HARV. L. REV. 179, 219 (2010) ("For the last two decades, the endorsement test has been the touchstone inquiry in Establishment Clause challenges.").
120. Although the endorsement test certainly also protects against the accompanying offense felt by the purportedly stigmatized individual, the focus is on objective rather than subjective harm-that is, whether a reasonable observer, not whether the plaintiff, would perceive a message of endorsement. See Cnty. of Allegheny, 492 U. S. at 620.
121. Lynch v. Donnelly, 465 U. S. 668, 688 (1984) (O'Connor, J., concurring).
122. See Thomas Healy, Stigmatic Harm and Standing, 92 IOWA L. REV. 417, 436-38 (2007) (arguing that the Court's religious display cases undermine Allen's conclusion that stigmatic harms are non-cognizable).
123. Several scholars have famously argued that standing should turn on the meaning of the statutory or constitutional provision relied upon and not any independent injury-in-fact requirement. See, e.g., William A. Fletcher, The Structure of Standing, 98 YALE L. J. 221, 223-24 (1988);
124. Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries", and Article III, 91 MICH. L. REV. 163, 166-67 (1992).
125. See, e.g., Lujan v. Defenders of Wildlife, 504 U. S. 555, 560-61 (1992).
126. See DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 340 (2006) ("We have 'an obligation to assure ourselves' of litigants' standing under Article III"
127. (quoting Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U. S. 167, 180 (2000)));
128. Elk Grove Unified Sch. Dist. v. Newdow, 542 U. S. 1, 11 (2004) ("In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues."
129. (quoting Warth v. Seldin, 422 U. S. 490, 498 (1975)) (internal quotation marks omitted)).
130. E.g., Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U. S. 464, 484 (1982) (stating that there is no "hierarchy of constitutional values or... complementary 'sliding scale' of standing");
131. Flast v. Cohen, 392 U. S. 83, 99 (1968) (stating that standing "focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated").
132. This proposition is rather dubious, especially with regard to offense. It is likely that those who "roam the country in search of governmental wrongdoing" experience deeper offense when they find it than those who involuntarily come into contact with it. Valley Forge, 454 U. S. at 487.
133. But see Washegesic v. Bloomingdale Pub. Sch., 33 F.3d 679, 683 (6th Cir. 1994) ("The practices of our own community may create a larger psychological wound than someplace we are just passing through."). Regardless of the correct answer to the empirical question, the important point is that the nature of the harm is still psychological-as the Washegesic court candidly admitted-and therefore insufficient to confer standing.
134. See Valley Forge, 454 U. S. at 486 ("[S]tanding is not measured by the intensity of the litigant's interest or the fervor of his advocacy.");
135. see also Saladin v. City of Milledgeville, 812 F.2d 687, 691 (11th Cir. 1987) ("There is no minimum quantitative limit required to show injury; rather, the focus is on the qualitative nature of the injury."
136. (citing United States v. Students Challenging Regulatory Agency Procedures, 412 U. S. 669, 689 n. 14 (1973))).
137. Simon v. E. Ky. Welfare Rights Org., 426 U. S. 26, 41-42 (1976).
138. See ACLU of Ga. v. Rabun Cnty. Chamber of Commerce, Inc., 698 F.2d 1098, 1108 (11th Cir. 1983) (stating that plaintiffs testified they were unwilling to camp at a nearby state park because of the presence of a large cross at the park).
139. Suhre v. Haywood Cnty., 131 F.3d 1083, 1088 (4th Cir. 1997).
140. ACLU of Ill. v. City of St. Charles, 794 F.2d 265, 268 (7th Cir. 1986).
141. Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 890-93 (1983).
142. E.g., Allen v. Wright, 468 U. S. 737, 752 (1984) ("[T]he law of Art. III standing is built on a single basic idea-the idea of separation of powers.").
143. (quoting Vander Jagt v. O'Neill, 699 F.2d 1166, 1178-79 (D. C. Cir. 1983) (Bork, J., concurring)));
144. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U. S. 464, 475 (1982) (admitting the Court has not defined "the concept of 'Art. III standing'... with complete consistency").
145. Raines v. Byrd, 521 U. S. 811, 818 (1997)
146. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U. S. 26, 37 (1976)).
147. See Hein v. Freedom from Religion Found., Inc., 551 U. S. 587, 598 (2007) (plurality opinion);
148. 5 U. S. (1 Cranch) 137 (1803).
149. See Lee A. Albert, Justiciability and Theories of Judicial Review: A Remote Relationship, 50 S. CAL. L. REV. 1139, 1151 (1977).
150. See Hein, 551 U. S. at 635-36 (Scalia, J., concurring in the judgment).
151. 418 U. S. 166 (1974) (Powell, J., concurring).
152. Richardson, 418 U. S. at 192.
153. 465 U. S. 668 (1984).
154. See Kate Stone Lombardi, Decorate Schools for Holidays-but with What?, N. Y. TIMES, Dec. 17, 2006, http://www.nytimes.com/2006/12/17/nyregion/ nyregionspecial2/17wecol.html.
155. See, e.g., Lee v. Weisman, 505 U. S. 577, 598-99 (1992). Moreover, plaintiffs might establish Article III standing as taxpayers.
156. See Asarco Inc., v. Kadish, 490 U. S. 605, 617-18 (1989) (finding standing based on petitioners' alleged injury caused by state-court decree regardless of whether the plaintiffs would have had standing to file their initial suit in federal court);
157. see also William A. Fletcher, The "Case or Controversy" Requirement in State Court Adjudication of Federal Questions, 78 CALIF. L. REV. 263, 280-82 (1990) (discussing Asarco's doctrinal ramifications).
158. Warth v. Seldin, 422 U. S. 490, 498 (1975).