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In a memorandum filed the same day, the court held that the plaintiffs lacked standing because "a taxpayer's action to bar the expenditure of funds for the services of Chaplains in the House and Senate is precluded by our Court of Appeals decision in Elliott v. White, 23 F.2d 997 (Þ.C. Cir. 1928)." Murray v. Morton, 505 F. Supp. 144, 145 (D.D.C. 1981)] Although Judge Oberdorfer recognized that a line of cases had granted standing to taxpayers to challenge expenditures for general public purposes in violation of the Establishment Clause, he held that this did not confer standing to challenge the constitutionality of Congress' conduct of its internal affairs, specifically the compensation of its officers. The court noted that the challenge in this case was only to the payment of funds for the Chaplains, not to their appointment or to the opening prayer at each session of the House and Senate. Given that, the court stated, "[T]he conclusion seems inescapable that it would be ‘impossible for this Court, consistently with the respect which courts owe to coordinate branches of government and to each other, to undertake an 'independent resolution of the question of Congress' power to compensate its Chaplains, on this complaint of these particular taxpayers.[Id. at 147] The court concluded:

The taxpayer plaintiffs allege no interest, other than their views with respect to religion, to distinguish themselves or their personal stake in the outcome from that of any one of the population who pay taxes. They have no duty, indeed no occasion, to be present when the Chaplains perform their services in the House and Senate. They do not allege that they have been offended by, or even seen, the material allegedly circulated by the Chaplain of the Senate. This is not an action brought by a Senator, Congressman, or employee of the Senate or the House. See e.g., Powell v. McCormack, supra; Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974). Nor is it a complaint by one allegedly suffering from discrimination because of persistent employment of chaplains of one denomination rather than another. Accordingly, unless and until the Court of Appeals or the Supreme Court decides otherwise, this Court considers itself bound by Elliott to dismiss this complaint.

[Id.] On March 13, 1981, the plaintiffs filed a notice of appeal from the district court's January 12th judgment in the U.S. Court of Appeals for the District of Columbia Circuit. (No. 81-1301]

On May 18, 1981, the plaintiff-appellants filed their brief in the circuit court arguing once again that they had standing to challenge the constitutionality of public funding of the salaries of the House and Senate chaplains, and that the Establishment Clause prohibited Congress from authorizing the expenditure of such funds.

On the standing issue, the plaintiffs asserted that the district court's reliance on Elliott v. White, supra, was misplaced because the “law of taxpayer's standing has changed dramatically” since the case was decided in 1928. [Brief for Appellants, May 18, 1981, at 3] Again, the plaintiffs cited the case of Flast v. Cohen, supra, for this assertion, and claimed the suit should be adjudicated because they had “demonstrated a logical nexus, that they are federal taxpayers and that taxpayers' funds are being appropriated for a religious purpose.” (Id.) The plaintiffs also dismissed the defendants' claim that the statutes in question in the case were “internal” rules of the House and Senate, arguing instead that the case was "clearly focused" on public statutes. Finally, the plaintiffs pointed to a purportedly similar Federal court case in Nebraska, Chambers v. Marsh, 504 F. Supp. 585 (D. Neb., December 24, 1980), appeal pending (Nos. 81-1077 and 81-1088, 8th Cir.), which, they claimed, accorded taxpayer standing to a state senator and declared unconstitutional the expenditure of public funds to pay a state senate chaplain.

On the merits, the plaintiffs made the same arguments they had in the district court, insisting again that the statutes authorizing payment of the salaries and expenses of legislative chaplains violated each part of the Supreme Court's three-pronged test for determining whether a particular law or activity is permissible under the Establishment Clause. First, they contended, the statutes had no clearly secular legislative purpose and were not necessary to avoid abridgement of the legislators' freedom of worship; therefore the statutes in effect authorized a subsidy of religion by the Federal Government. According to the plaintiffs, the statutes authorized as well the subsidy of specific religions, "since the same chaplains have occupied their positions in the House and Senate for eleven and two years respectively." [Id. at 10]

Second, the plaintiffs argued, the statutes had the primary effect of advancing religion because they provided for financing “a specifically religious activity-prayer-in the otherwise secular setting of the federal legislature.” (Id. at 12] Finally, the plaintiffs asserted again that the statutes caused excessive government entanglement with religion because "both branches of the legislature have had the same chaplains of minority Protestant faith for many years (which) gives the appearance that the Congress and the United States favor the Protestant religion over others.[Id. at 13]

On July 22, 1981, the General Counsel to the Clerk submitted a brief on behalf of the House defendant-appellees, asserting that the district court properly dismissed the complaint on the interrelated grounds of standing and justiciability. Again, the General Counsel reiterated the arguments he had raised in the lower court.

With respect to standing, the General Counsel maintained that Elliott v. White, supra, remained good law insofar as a challenge to the internal affairs of a coordinate branch was concerned. Further, the General Counsel argued that the case cited by the plaintiffs, Chambers v. Marsh, supra, was inapposite since it involved a state legislator suing in Federal court and there (were) no separation of powers or justiciability concerns present in . . . [the] suit, and it has no applicability to a suit against the federal legislature.” [Brief for Appellees O'Neill and Ford, July 22, 1981, at 10]

The General Counsel next asserted that the subject matter of the suit presented a political question and was therefore nonjusticiable. He explained:

This suit presents a nonjusticiable political question the resolution of which is expressly confided by the Constitu

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tion to a political branch of government. Appellants' as-
serted claim that the_statute compensating the House
Chaplain violates the Establishment Clause of the First
Amendment directly implicates and challenges the Elec-
tion of Officers and Rules of Proceedings Clauses of the
Constitution. These Clauses together provide a textually
demonstrable constitutional commitment of internal rule-
making authority to the House regarding the election of
its own officers and their performance of assigned duties to
Congress. The House's statutory provision for compensa-
tion of its Chaplain is a constitutionally valid exercise by
the House of Congress' implied power to enact laws condu-
cive to the execution of its enumerated Article I powers to
elect its officers and adopt its procedural rules. Thus the
challenged statute is merely a derivative exercise of the
House's constitutional rulemaking power. Moreover, the
House, alternatively, could provide for compensation of its
Chaplain by exercising its rulemaking authority directly
through adoption of a House rule fixing the level of his
pay, rather than by statutory enactment. Consequently,
resolution of the tendered claim is committed to the House
as a matter of constitutional power, and, as a result, this

case raises no justiciable controversy. (Id. at 26-27] Finally, the General Counsel contended that the challenged actions by Congress fell within the legitimate legislative sphere of activity protected by the Speech or Debate Clause and were therefore absolutely immune from judicial interference:

Because of the Chaplain's status as a 'ranking nonmember of the House, Buckley v. Valeo, 424 U.S. 1, 128 (1976) and an officer of the Congress', 2 U.S.C. $60-1(b)(1) (1976), he cannot be the subject of a suit challenging his performance of legislatively assigned duties anymore than a committee counsel can be made a defendant for assisting Members in issuing subpoenas alleged to be violative of the Constitution ... or for preparation of an allegedly li

belous committee report. (Id. at 29] On July 29, 1981, a joint brief was filed by the Senate, the Executive branch defendants, and the intervening Members of Congress also arguing that the district court decision should be upheld. Like the House defendants, these appellees contended that the political question doctrine precluded judicial review of the exercise by the Houses of Congress of their constitutional authority to choose their officers and determine the rules of their proceedings. Only the compensation of the chaplains had been challenged, they noted, and the “ability of the Houses of Congress to compensate their officers

.. is a natural and necessary concomitant of their right to choose them.” (Appellees' Joint Brief, July 29, 1981, at 22] The joint brief also agreed that the case was controlled by Elliott v. White, supra. Finally, the joint brief maintained that the district court had properly ruled that the plaintiffs' action was barred by the doctrine of res judicata, based on the dismissal of a similar suit filed in 1973 by plaintiff O'Hair.

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On October 19, 1981, the plaintiffs filed a reply brief restating the arguments they had made in the district court and in their original appellate brief, and disputing the contentions of the House, Senate, and Executive branch defendants on standing, justiciability under the political question doctrine, and the merits. With respect to standing, the plaintiffs maintained that there was "nothing to distinguish" this case from Flast v. Cohen, which according to them superseded the Elliott case relied on by the defendants. With respect to the political question issue, the plaintiffs contended that although there are constitutional provisions which provide that the House and Senate shall choose their officers, "there is absolutely no support for the proposition that these provisions grant to Congress the judicially nonreviewable power to compensate its officers out of public funds when . . . this use of public funds violates the first amendment.” (Reply Brief for the Appellants, October 19, 1981, at 4] With respect to the res judicata point, the plaintiffs argued that the 1973 O'Hair case was dismissed without an adjudication on the merits and therefore the doctrine was inapplicable. And with respect to the merits, the plaintiffs asserted that there “can be no reasonable dispute that the enactments lack any meaningful secular purpose, that their principal effect is to advance religion and that they excessively entangle government with religion by placing the power, prestige and financial support of the government behind particular religious beliefs." [Id. at 5] The plaintiffs asked that the appeals court reverse the judgment of the district court and remand the case for further proceedings. Should the court decide to reach the merits, the plaintiffs asked that it find the challenged statutes unconstitutional and enjoin further payment of the salaries and expenses of the Congressional chaplains.

On October 26, 1981, the case was argued before a panel of the court of appeals.

On January 18, 1982, the counsel for the plaintiffs-appellants filed a letter with the court advising it of a recent decision of the Supreme Court, Valley Forge Christian College v. Americans United for Separation of Church and State, 102 S. Ct. 752 (January 12, 1982), which, the counsel claimed, supported the plaintiffs' position on standing based on Flast v. Cohen.

On March 9, 1982, the appeals court panel handed down its decision, ruling 2-1 that the judgment of the district court should be reversed. [Murray V. Buchanan, No. 81-1301 (D.C. Cir. March 9, 1982)] 2 In an opinion by Circuit Judge Ruth Bader Ginsburg, the panel held that the plaintiffs had standing to bring the action and that their claim was justiciable. The case was ordered remanded to the lower court without the panel reaching the merits.

On the issue of standing, Judge Ginsburg, in sum, agreed with the plaintiffs that the Elliott case relied on by the defendants had been superseded by Flast v. Cohen, and that the plaintiffs' status as taxpayers in this case was "legally indistinguishable from that held sufficient by the Supreme Court to confer standing in Flast." (slip op. at 4] Judge Ginsburg found that the "precise factors" the Court

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2 The panel's opinion was initially reported at 674 F.2d 14. However, when the decision was subsequently vacated (see discussion in test, infra), the opinion was withdrawn from publication.

found sufficient in Flast were present in this case: a challenge to an exercise of the Congressional spending power, and an allegation that the power had been exercised in a manner inconsonant with the Establishment Clause. According to Judge Ginsburg, the “double nexus test of Flast requires no more.” (Id. at 6 (footnote omitted)]

The judge dismissed out of hand the defendants' arguments that Flast was distinguishable from the case at bar because the expenditures involved in this case were not “substantial,” and because this case involved the internal affairs of Congress. On the first point, Judge Ginsburg ruled that the size of the appropriation was not an element of the two-pronged standing test. With respect to the second argument, the judge concluded that it was simply “irrelevant" to the issue of standing (as opposed to the political question doctrine).

Finally, addressing the impact of the Supreme Court's recent decision in the Valley Forge Christian College case, Judge Ginsburg reasoned that it reaffirmed Flast with respect to cases involving the power of Congress to spend money. She explained:

Valley Forge, supra, the Supreme Court's most recent expression in point, reaffirmed Flast while declining to extend Flast's reasoning to cases involving exercises of official authority other than the power of Congress to spend money. The Court held in Valley Forge that federal taxpayers lacked standing to maintain an establishment clause challenge to executive action (disposition of surplus real property to a church-related college) taken under a statute Congress passed as an exercise of authority conferred by the property clause, Article IV, section 3, clause 2, of the Constitution. The Valley Forge decision ruled out taxpayer challenges to executive, as distinguished from congressional action, and challenges predicated on a source of federal authority other than Congress' taxing and spending power. With notable precision, however, the Court adhered to the Flast precedent: taxpayers qua taxpayers have standing to challenge as incompatible with the establishment clause "congressional exercises of the power to tax and spend conferred by Art. I, § 8, of the Constitution.” 50 U.S.L.W. at 4104; see id. at 4107.

Even more plainly than in Flast the challenge in this case is to congressional, not executive, action. Cf. Public Citizen, Inc. v. Simon, 539 F.2d 211, 216-18 (D.C. Cir. 1976) (executive spending is not "subject to taxpayer suit on a test analogous to Flast"). And, most significantly in terms of the Valley Forge analysis, the challengers before us complain of an “ 'exercise by Congress of the taxing and spending power conferred by Art. 1, $ 8.'” 50 U.S.L.W. at 4107 (quoting Flast, 392 U.S. at 104). Given these two characteristics of the claim in suit, characteristics Valley Forge described as determinative of taxpayer standing, federal judges are not at liberty to avoid the force of the Flast precedent and thereby escape the substantive inquiry the

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