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Written by James R. Belpedio, published on January 1, 2009 , last updated on February 18, 2024

Flast v. Cohen (1968)

In Flast v. Cohen, 392 U.S. 83 (1968), the Supreme Court allowed taxpayers standing to sue within limited parameters, if a logical link exists between the taxpayers’ status and the type of enactment being attacked, and if the taxpayers can show a link between the expenditure of funds and the specific violation of a constitutional limitation on the power of Congress.


In this case, the taxpayers challenged congressional actions based on the Establishment Clause of the First Amendment. The ruling does not apply to general regulatory legislation.


Flast said using taxpayer money to fund religious schools violated the First Amendment

Florence Flast and a group of New York taxpayers alleged that enforcement of the Elementary and Secondary Education Act of 1965 and its expenditure of funds for textbooks, instructional tools, and transportation for religious schools violated the free exercise and establishment clauses. They filed a complaint against Secretary of Health, Education and Welfare Wilbur H. Cohen and other officials in the Lyndon B. Johnson administration.


The plaintiffs asked the district court to issue an injunction preventing enforcement of the law in New York and to rule on its constitutionality, but a three-judge panel for the Southern District of New York ruled that the plaintiffs lacked standing.


District court said taxpayers had no standing

The panel cited the case of Frothingham v. Mellon (1923), in which Frothingham sued the U.S. government, asserting that her tax money was being used to fund a grant program that sought to reduce maternal and infant mortality. Moreover, she maintained that the program fell under the reserved powers of the states and that Congress had increased her taxes and deprived her of her property without due process, in violation of the Fifth Amendment.


The Supreme Court ruled that Frothingham had no standing to sue, because her tax liability in the program was “comparatively minute and indeterminable.” The practical intent of the decision was to prevent wholesale taxpayer suits involving minute amounts of money unless plaintiffs could show a significant effect on their own individual tax bills.


The plaintiffs in Flast v. Cohen were attempting to prevent the use of their tax money to fund religious or sectarian instruction.


Court said Flast had standing to challenge First Amendment

Chief Justice Earl Warren identified two issues before the Court:


  • The first was a technical challenge by the government alleging that the three-judge panel and the subsequent appeal were defective. The Court disagreed.
  • The second issue involved the standing of the plaintiffs and the justiciability of their claim. Warren ruled that Frothingham was based on a general interpretation of the general welfare clause. Flast, however, was based on a specific challenge to Congress’s actions under the First Amendment freedom of religion clauses. The powers to raise and spend money can be challenged by taxpayers if they allege that money spent will favor a specific religion or religion in general.

Justices Potter Stewart, Abe Fortas, and William O. Douglas concurred. Justice Douglas, sensing a contradiction between the decision in Frothingham and that in Flast, stated that all bars to taxpayer suits should be rescinded and that Frothingham should be overturned. He pointed out that taxpayers could help to limit the overreaching power of government.


Justice John Marshall Harlan II dissented, claiming that taxpayers would have no individual stake in the outcome of the case.


Court has refused to extend Flast precedent

Later the same year, the Court in Board of Education v. Allen (1968) upheld a New York law that allowed textbooks purchased with public funds to be loaned to students at parochial or sectarian schools in New York. More recently, in Hein v. Freedom from Religion Foundation (2007), the Court refused to extend the Flast precedent.


This article was originally published in 2009. James R. Belpedio was a Professor of History at Becker College.


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