Taxpayer Standing to Enforce the Establishment Clause: A Reappraisal
![handle is hein.journals/vrgtr39 and id is 529 raw text is:
TAXPAYER STANDING TO ENFORCE THE
ESTABLISHMENT CLAUSE: A REAPPRAISAL
Brady Plastaras'
Standing to sue requires that a plaintiff suffer a concrete and
particularized injury-in-fact. A narrow exception to this rule exists under the
Flast doctrine, which enables citizens to challenge alleged establishment
clause violations by virtue of their status as taxpayers. Since first creating
the Flast doctrine, however, the Supreme Court has increasingly narrowed
its application to the point where this generic taxpayer standing is now
extremely difficult, but not impossible, to attain.
The near universal sentiment among commentators is that the Flast
doctrine must be expanded in order to enforce the Establishment Clause
adequately. This Note breaks from the prevailing sentiment by arguing that
the Flast doctrine, though narrow and ambiguous, has inherent value
precisely because ofits narrowness and ambiguity. In particular, the doctrine
provides courts with a desirable degree offlexibility to reach the merits of
compelling establishment clause cases. Although the Flast doctrine invites
confusion, it strikes a proper balance of barring most establishment clause
challenges while giving the judiciary some voice in shaping social policy.
I. INTRODUCTION
Last year, the Seventh Circuit Court of Appeals decided Gaylor v.
Mnuchin where it ruled that Internal Revenue Code (I.R.C.) § 107, which
allows minister[s] of the gospel to exclude the rental value of their
parsonage from gross income, does not violate the Establishment Clause.2
While not uncontroversial,3 the most surprising aspect of the Gaylor decision
was not its ruling on the constitutional merits of I.R.C. § 107, but rather the
. Cornell Law School, J.D. Candidate, 2020. I am indebted to Professor Richard L.
Reinhold for his insightful guidance in developing this Note. I would also like to thank Robin
Grieff for her valuable feedback on earlier drafts.
A parsonage is a minister's church-provided home.
2 Gaylor v. Mnuchin, 919 F.3d 420, 437 (7th Cir. 2019); I.R.C. § 107 (2002).
Technically, the constitutionality of only subsection (2) of § 107 was at issue. Because this
distinction is not meaningful to the court's standing determination, this Note will simply refer
to § 107 throughout.
See, e.g., Bridget J. Crawford and Emily Gold Waldman, Ministerial Magic: Tax-
Free Housing and Religious Employers, 22 U. PA. J. CoNsT. L. ONLINE 101 (2019) (arguing
against the Seventh Circuit's result in Gaylor).
511](ViewImageLocal?handle=hein.journals/vrgtr39&div=19&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Taxpayer Standing to Enforce the Establishment Clause: A Reappraisal
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most