Flast v. Cohen

LOCATION: Congress

DECIDED BY: Warren Court (1967-1969)

CITATION: 392 US 83 (1968)
ARGUED: Mar 12, 1968
DECIDED: Jun 10, 1968

Facts of the case

Florence Flast and a group of taxpayers challenged federal legislation that financed the purchase of secular textbooks for use in religious schools. Flast argued that such use of tax money violated the Establishment Clause of the First Amendment. A district court held that the federal courts should defer when confronted with taxpayer suits directed against federal spending programs.


Did Flast, as a taxpayer, have standing to sue the government's spending program?

Media for Flast v. Cohen

Audio Transcription for Oral Argument - March 12, 1968 in Flast v. Cohen

Earl Warren:

Number 416, Florence Flast, et al, appellants versus John W. Gardner, Secretary of the Department of Health, Education and Welfare, et al.

Mr. Pfeffer.

Leo Pfeffer:

Mr. Chief Justice and may it please the Court.

This is a suit brought by a group of individual taxpayers residing in the City of New York challenging under both Establishment and Free Exercise Clauses of the First Amendment, the expenditure by the federal government funds to provide teaching services and textbooks and church related sectarian schools, the Government Act pursuant to which interpretation of the Elementary and Secondary Education Acts of 1965.

Our suit was brought and the Government made a motion to dismiss on one ground and one ground only and that is since the plaintiffs were merely taxpayers, under the decision of this Court in Frothingham against Mellon, they did not have standing to challenge the Act and its administration.

We cross moved for the convening of the three-judge courts and Justice Frankel granted our motion and referred to the three-judge court, the question of standing.

This was argued before the chief -- before the three-judge court.

By a vote two to one, the Government's position was upheld and with the dissent by Judge Frankel and our complaint was dismissed.

The sole authority for the dismissal of this complaint, at this level anyway, is that we do not have standing to sue and as Frothingham constitutes barring to a suit by taxpayers, challenging federal expenditures of funds, alleged to be in violation of the First Amendment.

Now, the initial question which the -- which we address ourselves to and which the Government addresses itself to in its brief other than the technical question of the three-judge court which I presume the Government will argue, is whether Frothingham presents a constitutional barrier to a taxpayer's suit.

It's our contention that unlike the companion suit of Massachusetts against Mellon, which may -- which we are willing to concede may have serve as a constitutional barrier to taxpayer suits.

Frothingham was a decided on a party of judicial self-restraint statute rather than constitutional lack of capacity.

I must say that Mr. Justice Brandeis would not concur with my concession because according to Mr. Justice Brandeis, even Massachusetts against Mellon in which the State of Massachusetts brought the suit challenging expenditure, even that was not a case of constitutional lack of competence, but of abstention.

In the classic concurring opinion of Mr. Justice Brandeis in Ashwander against T.V.A., he said, page 341 of 279 U.S., “the Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.

They are at least of five of them, the fifth is the following.

The Court will not pass upon the validity of a statute by complaint of one who failed to show that he is injured by its operations.”

In Massachusetts against Mellon, the challenge of the Federal Maternity Act was not entertained, although made by the Commonwealth on behalf of its citizens.

Now, Justice Brandeis was one of the Justices of the Court which decided Massachusetts and Frothingham.

He participated in the conference and presumably was in the position to know what the Court intended and according to Justice Brandeis, even Massachusetts does not represent a constitutional question under office but on the question of judicial self-restraint.

However for the purpose of our case, we need not go that far and we urge that even if, even if Massachusetts interpret to represent a determination that a state had no constitutional power, for the Court has no constitutional power to hear a case by a state allegedly in behalf of its citizens, this does not apply to the Frothingham against Mellon which was decided simultaneously, but was an entirely separate and independent case by a taxpayer.

Are you going to deal Mr. Pfeffer with the Solicitor General's three-judge court argument?

Leo Pfeffer:

Yes, I would try to deal with it – if the Court wants I would be glad to deal with it --

Well, that's threshold question, isn't it?

Leo Pfeffer:

It was raised for the first time -- it was raised for the first time in the -- in the answering brief.

If you prefer I'll --

Well, you do it --

Leo Pfeffer:

I prefer deal with it in our rebuttal, unless the Court prefers --

Earl Warren:

I wonder if we shouldn't – I wonder if we shouldn't have that in our minds as we go along because that is a threshold case Mr. Pfeffer and that's a --

Leo Pfeffer:

Well, then turning to that question, for the first time, in its answering brief, not before Judge Frankel, not before the three-judge court nor the motion to dismiss or affirm, but for the first time in its answering brief, the Court asserts, the Government asserts that this case should have been heard by a single judge and therefore direct appeal is not proper.

Apparently, it's difficult for me fully to grasp the thrust of the Government's position, but apparently it appeared that it's that.