Flast v. Cohen/Concurrence Stewart

by Potter Stewart

United States Supreme Court

392 U.S. 83

Flast  v.  Cohen

 Argued: March 12, 1968. --- Decided: June 10, 1968

Mr. Justice STEWART, concurring.

I join the judgment and opinion of the Court, which I understand to hold only that a federal taxpayer has standing to assert that a specific expenditure of federal funds violates the Establishment Clause of the First Amendment. Because that clause plainly prohibits taxing and spending in aid of religion, every taxpayer can claim a personal constitutional right not to be taxed for the support of a religious institution. The present case is thus readily distinguishable from Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078, where the taxpayer did not rely on an explicit constitutional prohibition but instead questioned the scope of the powers delegated on the national legislature by Article I of the Constitution.

As the Court notes, 'one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general.' Ante, at 103. Today's decision no more than recognizes that the appellants have a clear stake as taxpayers in assuring that they not be compelled to contribute even 'three pence * * * of (their) property for the support of any one establishment.' Ibid. In concluding that the appellants therefore have standing to sue, we do not undermine the salutary principle, established by Frothingham and reaffirmed today, that a taxpayer may not 'employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System.' Ante, at 106.

Notes