MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS

RICHARD STEARNS, District Judge

On January 12, 2009, the American Civil Liberties Union of Massachusetts (ACLU) brought this lawsuit against officials of the U.S. Department of Health and Human Services (HHS), alleging that defendants are violating the Establishment Clause of the First Amendment by allowing the United States Conference of Catholic Bishops (USCCB) to impose a religion-based restriction on the disbursement of taxpayer-funded services. On May 15, 2009, defendants filed a motion to dismiss for lack of subject matter jurisdiction. A hearing on the motion was held on December 3, 2009.

BACKGROUND

HHS initially implemented the victims' services mandate of the TVPA by making grants to private providers on a case-bycase basis. In November of 2005, HHS decided to award a master contract to a single provider on a per capita basis. On February 23, 2006, the USCCB submitted a proposal to HHS to enlist non-governmental organizations (NGOs) under its oversight umbrella. However, the USCCB added a caveat:

[A]s we are a Catholic organization, we need to ensure that our victim services funds are not used to refer or fund activities that would be contrary to our moral convictions and religious beliefs. Therefore, we would explain to potential subcontractors our disclaimer of the parameters within which we can work. Specifically, subcontractors could not provide or refer [victims] for abortion services or contraceptive materials. . . .

Compl. ¶ 46. HHS sought to clarify this "conscience exception" by asking the USCCB,

"Would a `don't ask, don't tell' policy work regarding the exception? What if a subcontractor referred victims supported by stipend to a third-party agency for such services?" Id. at ¶ 49. The USCCB responded unequivocally. "We cannot be associated with an agency that performs abortions or offers contraceptives to our clients. If they sign the written agreement [the subcontract], the `don't ask, don't tell' wouldn't apply because they are giving an assurance to us that they wouldn't refer for or provide abortion service to our client using contract funding." Id. at ¶ 50. Despite this answer, in April of 2006, HHS awarded the master contract to the USCCB. Id. at ¶ 51. From April of 2006 to April of 2007, the USCCB was awarded $2.5 million. Id. at ¶ 66. From April of 2007 to April of 2008, it received more than $3.5 million. Id.

The USCCB has enforced the "conscience exception" by incorporating language in its subcontractor agreements prohibiting NGOs from using TVPA funds for "referral for abortion services or contraceptive materials." Id. at ¶ 57. This restriction is also set out in the operations manual that the USCCB distributes to the provider NGOs. The manual flatly states that "program funding cannot be used for abortion services or contraceptive materials. Subcontractors will not be reimbursed for these services." Id. at ¶¶ 58-59.

DISCUSSION

The burden of establishing standing rests with the party invoking the jurisdiction of the federal courts. See Bennett v. Spear, 520 U.S. 154, 167-168, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).

[There are] three fundamental requisites of standing that every litigant invoking the jurisdiction of the federal courts must possess: (1) injury-in-fact — an invasion of a legally-protected interest that is both concrete and particularized, and actual or imminent; (2) causation; and (3) redressability. Several prudential considerations also infuse standing determinations. These considerations, which militate against standing, principally concern whether the litigant (1) asserts the rights and interests of a third party and not his or her own, (2) presents a claim arguably falling outside the zone of interests protected by the specific law invoked, or (3) advances abstract questions of wide public significance essentially amounting to generalized grievances more appropriately addressed to the representative branches.

An association has standing to bring a lawsuit on behalf of its members "when [1] at least one of its members possesses standing to sue in his or her own right; [2] the interests that the suit seeks to vindicate are pertinent to the objectives for which the organization was formed; and [3] neither the claim asserted nor the relief demanded necessitates the personal participation of affected individuals." Libertad v. Welch, 53 F.3d 428, 440 (1st Cir. 1995). See also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The ACLU contends that it has associational standing by virtue of its members' status as federal taxpayers.

Until 1968, the law was clear that a taxpayer could not claim standing to challenge the constitutionality of a federal statute based on the use of his or her tax dollars to implement an allegedly unconstitutional practice or program.

The administration of any statute, likely to produce additional taxation to be imposed upon a vast number of taxpayers, the extent of whose several liability is indefinite and constantly changing, is essentially a matter of public and not of individual concern. If one taxpayer may champion and litigate such a cause, then every other taxpayer may do the same, not only in respect of the statute here under review, but also in respect of every other appropriation act and statute whose administration requires the outlay of public money, and whose validity may be questioned. The bare suggestion of such a result, with its attendant inconveniences, goes far to sustain the conclusion which we have reached, that a suit of this character cannot be maintained.

The congressional act challenged in Flast set up a complicated mechanism under which local entities serving the educational needs of low income families submitted requests to state agencies for federal funds. The applications were approved based on a set of criteria established by the United States Commissioner of Education that permitted distribution of public financial aid to religious schools. Describing the Frothingham decision as "confus[ing]" and "critici[zed]," the Flast Court concluded that its holding was likely motivated by prudential concerns, and that there was "no absolute bar in Article III to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs." Id. at 92, 101, 88 S.Ct. 1942.

The Court then fashioned a two-part test to be applied in determining whether a taxpayer had a stake in a controversy over the expenditure of public funds sufficient to confer standing.

First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. . . . Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. When both nexuses are established, the litigant will have shown a taxpayer's stake in the outcome of the controversy and will be a proper and appropriate party to invoke a federal court's jurisdiction.

The Flast Court found that the plaintiff taxpayers had satisfied both prongs of the test. First, the Court found that the constitutional challenge was "made to an exercise by Congress of its power under Art. I, § 8, to spend for the general welfare, and the challenged program involves a substantial expenditure of federal tax funds." Id. at 103, 88 S.Ct. 1942. Second, the Court found that the plaintiffs had shown a constitutional nexus between their status as taxpayers and the constitutional harm by alleging "that the challenged expenditures violate the Establishment and Free Exercise Clauses of the First Amendment." Id.

In its most recent taxpayer standing case, Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007), the Court cautioned that the Flast exception is "narrow" and must be applied with "rigor." Id. at 602, 603, 127 S.Ct. 2553 (plurality opinion) (citation omitted). See also Daimler-Chrysler Corp. v. Cuno, 547 U.S. 332, 347, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (declining to extend Flast to a taxpayer challenge to state investment tax credits alleged to discriminate against interstate commerce). It is worth noting that in applying the Flast exception, the Court has never permitted standing where the Spending Clause of Article I was not directly implicated. See Hein, 551 U.S. at 610, 127 S.Ct. 2553. Nor has the Court ever allowed standing to challenge a violation under any constitutional provision other than the Establishment Clause. Id. at 609, 127 S.Ct. 2553.

Defendants offer three reasons why they believe that the ACLU lacks standing under the Flast exception: (1) the TVPA does not itself mandate spending in violation of the Establishment Clause; (2) the TVPA is not based solely on Congress's exercise of its powers under the Spending Clause; and (3) the ACLU cannot show a "direct dollar-and-cents injury." The court will address each of these arguments in turn.

Statutory Mandate

It cannot be disputed that the TVPA does not directly mandate HHS to spend taxpayer money in violation of the Establishment Clause. The mechanism rather is more like the one created in Flast. The TVPA simply directs HHS to provide social services to victims of human trafficking. It does not order HHS to include religious organizations among the service providers (nor does it exclude them), nor does it specify the exact nature of the social services that are to be provided. Instead, these matters are left to the discretion of the Secretary. The TVPA does, however, make a specific annual appropriation (currently of "up to" $12.5 million) to carry out its victims' services mandate.

Supreme Court cases since Flast discussing taxpayer standing are admittedly confusing. They do, however, at least stake out the poles of the spectrum that divides what is authorized from what is not. At one pole is Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). In Valley Forge, the Court held that taxpayers did not have standing to challenge a decision by the Secretary of Health, Education, and Welfare (HEW) to give over a tract of surplus federal land to a Bible study college. See id. at 479, 102 S.Ct. 752. The Secretary based his decision on the authority bestowed by the Federal Property and Administrative Services Act of 1949. That Act authorized the Secretary to transfer surplus real property (in the Valley Forge case, land from a decommissioned military hospital) to nonprofit, tax-exempt educational institutions. Id. at 467, 102 S.Ct. 752.

In refusing standing to plaintiff taxpayers, the Court noted that "the source of their complaint is not a congressional action, but a decision by HEW to transfer a parcel of federal property." Id. at 479, 102 S.Ct. 752. Because the transfer did not involve an exercise of the congressional spending power under Article I, but rather one of executive authority under the Property Clause of Article IV, it did not in the Court's estimation fall within the Flast exception. Id. at 480, 102 S.Ct. 752. The Court found that the link between the property transfer and any burden on the taxpayers was "at best speculative and at worst non-existent" because the government had acquired the property some three decades before the lawsuit was brought. Id. at 480 n. 17, 102 S.Ct. 752.

The other pole on the spectrum was planted six years later in Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988). In Kendrick, taxpayers brought Establishment Clause challenges, both facial and "as-applied," to the Adolescent Family Life Act (AFLA), 42 U.S.C. § 300z et seq. The AFLA appropriated money to be disbursed by HHS to community service groups, including religiously affiliated groups, working to discourage premarital sex and teen pregnancy. Kendrick, 487 U.S. at 593, 108 S.Ct. 2562. As the Court noted, "the AFLA expressly states that federally provided services in this area should promote the involvement of parents, and should emphasize the provision of support by other family members, religious and charitable organizations, voluntary associations, and other groups." Id. at 596, 108 S.Ct. 2562 (citation omitted).

The Court first rejected plaintiffs' facial challenge to AFLA, explaining that,

[a]s we see it, it is clear from the face of the statute that the AFLA was motivated primarily, if not entirely, by a legitimate secular purpose — the elimination or reduction of social and economic problems caused by teenage sexuality, pregnancy, and parenthood. Appellees cannot, and do not, dispute that, on the whole, religious concerns were not the sole motivation behind the Act, nor can it be said that the AFLA lacks a legitimate secular purpose. . . . There is simply no evidence that Congress' actual purpose in passing the AFLA was one of endorsing religion.

Turning to the "as-applied" challenge, the Court had little difficulty identifying a link between plaintiffs' status as taxpayers and the underlying congressional appropriation, even though the funds had ultimately been disbursed by the Secretary.

We do not think . . . that [appellees'] claim that AFLA funds are being used improperly by individual grantees is any less a challenge to congressional taxing and spending power simply because the funding authorized by Congress has flowed through and been administered by the Secretary. . . . [Since Flast], we have not questioned the standing of taxpayer plaintiffs to raise Establishment Clause challenges, even when their claims raised questions about the administratively made grants. . . . Nor is this, as we stated in Flast, a challenge to "an incidental expenditure of tax funds in the administration of an essentially regulatory statute." The AFLA is at heart a program of disbursement of funds pursuant to Congress' taxing and spending powers, and appellees' claims call into question how the funds authorized by Congress are being disbursed pursuant to the AFLA's statutory mandate. In this litigation there is thus a sufficient nexus between the taxpayer's standing as a taxpayer and the congressional exercise of taxing and spending power, notwithstanding the role the Secretary plays in administering the statute.

The Court, however, faulted the district court's approach for failing to identify more specifically those grantees who in its view were "pervasively sectarian," and therefore constitutionally suspect, although the Court agreed that from all appearances, some AFLA funds had been used "for constitutionally improper purposes." Id. at 620, 108 S.Ct. 2562. The Court remanded the case to the district court with the instruction that if it definitively found "that the Secretary has wrongfully approved certain AFLA grants, an appropriate remedy would be to require the Secretary to withdraw such approval." Id. at 622, 108 S.Ct. 2562.

That brings us, nineteen years later, to Hein. Plaintiffs in Hein objected to a 2001 Presidential Executive Order creating a White House Office of Faith-Based and Community Initiatives (OFBCI). See 551 U.S. at 593, 127 S.Ct. 2553. The purpose of the OFBCI as explained in the Order was to ensure that "private and charitable community groups, including religious ones . . . have the fullest opportunity permitted by law to compete on a level playing field, so long as they achieve valid public purposes." Id. at 594, 127 S.Ct. 2553, quoting Exec. Order No. 13199, 3 C.F.R. § 752 (2001 Comp.).

Plaintiffs, an organization of atheists and agnostics and three of its taxpayer members, objected to the use of Executive Branch funds by the OFBCI to hold regional conferences explaining federal grant opportunities to which religious and secular groups were invited. At the conferences, federal officials extolled the value of religiously-oriented social services. The Hein Court, however, disagreed with plaintiffs' premise that the congressional spending power had been diverted to religious purposes, noting that "Congress [had only] provided general appropriations to the Executive Branch to fund its day-today activities. These appropriations did not expressly authorize, direct, or even mention the expenditures of which [taxpayers] complain. Those expenditures resulted from executive discretion, not congressional action." Id. at 605, 127 S.Ct. 2553. The Court additionally noted that "[n]o congressional legislation specifically authorized the creation of the White House Office or the Executive Department Centers. Rather, they were `created entirely within the executive branch . . . by Presidential executive order.' Nor has Congress enacted any law specifically appropriating money for these entities' activities. Instead, their activities are funded through general Executive Branch appropriations." Id. at 595, 127 S.Ct. 2553 (internal citation omitted).

In contrasting the general appropriation at issue in Hein with the specific appropriation of funds in Flast, the Court plurality, in an opinion authored by Justice Alito, found that

[t]he link between congressional action and constitutional violation that supported taxpayer standing in Flast is missing here. Respondents do not challenge any specific congressional action or appropriation; nor do they ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional. That is because the expenditures at issue here were not made pursuant to any Act of Congress.

Justice Alito then turned to Kendrick, redoubling the focus on the distinction between general Executive Branch appropriations and the AFLA's designated appropriations.

[K]ey to [the finding that a sufficient nexus existed in Kendrick] was the Court's recognition that AFLA was "at heart a program of disbursement of funds pursuant to Congress' taxing and spending powers," and that the plaintiffs' claims "call[ed] into question how the funds authorized by Congress [were] being disbursed pursuant to the AFLA's statutory mandate."

effort is unavailing for the simple reason that they can cite no statute whose application they challenge. The best they can do is to point to unspecified, lumpsum "Congressional budget appropriations" for the general use of the Executive Branch — the allocation of which "is a[n] administrative decision traditionally regarded as committed to agency discretion." Characterizing this case as an "as-applied challenge" to these general appropriation statutes would stretch the meaning of that term past its breaking point.

This much at least seems clear. Hein "precludes standing when a taxpayer challenges a statute generally providing funding to the executive branch." Murray v. Geithner, 2010 WL 431730, at *2 (E.D.Mich. Feb. 2, 2010). It would also seem that Flast and Kendrick remain (at least for now) the controlling law on taxpayer standing when the expenditure being challenged is not a "lump-sum `Congressional budget appropriation []' for the general use of the Executive Branch." Hein, 551 U.S. at 607, 127 S.Ct. 2553. Navigating between these poles, the TVPA expenditures at issue here appear more like the funds disbursed under the AFLA than those spent to support the activities of the OFBCI. The TVPA, like the AFLA, designated a group of intended beneficiaries — in the case of the TVPA, victims of human trafficking abuse, in the case of the AFLA, sexually active adolescents — and like the AFLA, the TVPA required the funding of services for the group.

Defendants' argument that for taxpayer standing to attach under Hein, the challenged appropriation must directly mandate the turnover of funds to religious organizations is not supported by the text of the Hein plurality decision. In commenting on Flast, Justice Alito observed that "[a]t around the time the [AFLA] was passed and [ Flast] was decided, the great majority of nonpublic elementary and secondary schools in the United States were associated with a church. . . . Congress surely understood that much of the aid mandated by the statute would find its way to religious schools." Hein, 551 U.S. at 604 n. 3, 127 S.Ct. 2553. As Judge Zatkoff observed in Murray, "a requirement of religious contemplation in the challenged statute would eviscerate as-applied challenges under the Establishment Clause, which have expressly been permitted since Kendrick." Murray, 2010 WL 431730, at *3. See also Am. Civil Liberties Union of Minn. v. Tarek Ibn Ziyad Acad., 2009 WL 2215072, at *6 (D.Minn. July 21, 2009) ("To the extent that Defendants suggest that a statute must mention religion on its face, the Court disagrees. Funding under a legislative enactment that does not specifically mention religion is not necessarily a general appropriation. Hein did not overrule Flast or Kendrick.").

The issue is by no means open and shut, but the court is of the view that the ACLU has met its burden under Flast of showing a link between the congressional power to tax and spend and a possible violation of the Establishment Clause in the grant of public funds to the USCCB. As with the AFLA, the TVPA "is at heart a program of disbursement of funds pursuant to Congress' taxing and spending powers, and [plaintiffs] claims call into question how the funds authorized by Congress are being disbursed pursuant to the . . . statutory mandate. . . . [T]here is thus a sufficient nexus between the taxpayer's standing as a taxpayer and the congressional exercise of taxing and spending power, notwithstanding the [discretionary] role the Secretary plays in administering the statute." Kendrick, 487 U.S. at 620, 108 S.Ct. 2562.

Sole Exercise of the Spending Power

Defendants next argue that taxpayer standing does not attach because in enacting the TVPA, Congress invoked two of its powers that are independent of the Spending Clause — the Commerce Clause, Article I, § 8, and the Enabling Clause of the Thirteenth Amendment (prohibiting involuntary servitude). As defendants note, in enacting the TVPA, Congress made findings that "[t]rafficking in persons substantially affects interstate and foreign commerce," 22 U.S.C. § 7101(b)(12), and that "[t]he right to be free from slavery and involuntary servitude is among [a person's] inalienable rights." Id. § 7101(b)(22). However, the power of Congress to appropriate funds is entirely a function of the Spending Clause — whatever might be the additional grants of legislative authority granted to Congress by the Constitution.

Defendants nonetheless argue that for taxpayer standing to attach under Flast, Congress must have enacted the challenged legislation relying solely on the Spending Clause. That is, even if an exercise of the Spending Clause is a necessary predicate of a statute, standing does not exist when Congress in enacting legislation relies on additional provisions of the Constitution. Defendants point to the following sentence in Flast: "[A] taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution." Flast, 392 U.S. at 102, 88 S.Ct. 1942 (emphasis added).

"Only" is a flexible qualifier, the placement of which can dramatically alter the meaning of even a simple sentence. Here, sensibly interpreted, the qualifier "only" in Flast is meant to delimit taxpayer standing to circumstances in which an exercise by Congress of its power under the Spending Clause can be affirmatively linked to a violation of the Establishment Clause, as opposed to congressional acts that are strictly regulatory in nature. Defendants place too much weight on the word "only" as it is used in the Flast sentence in reading it to eliminate standing when Congress cites powers in addition to the Spending Clause in making an appropriation. The reasoning of the district court in Katcoff v. Marsh, 582 F.Supp. 463, 471 (E.D.N.Y. 1984) (citations omitted) (emphasis in original), overruled on other grounds, 755 F.2d 223, 231 (2d Cir. 1985), is persuasive:

Because there is no litmus test to determine which power Congress exercises in enacting a given statute, some writers have suggested that it is wiser to regard "all government spending [as] an exercise of the congressional power to tax and spend." This view finds some support in Flast, where the Court repeatedly emphasized that taxpayer standing was designed to allow federal taxpayers to challenge "a specific expenditure of federal funds." In limiting the scope of taxpayer standing, the Court's concern was to block challenges to "essentially regulatory statute[s]." It may be fairly inferred that the fact of Congressional spending — rather than the nominal source of that spending — was the Court's central concern.

A case relied upon by defendants in this regard, Winkler v. Gates, 481 F.3d 977 (7th Cir. 2007), is readily distinguishable. In Winkler, the Seventh Circuit considered an Establishment Clause challenge to a congressional statute directing the United States Military to assist the Boy Scouts of America in staging its quadrennial "Jamboree." Id. at 979. The Court of Appeals framed the issue as "whether the Jamboree statute is more like the surplus property act in Valley Forge or more like the AFLA program in [ Kendrick]." Id. at 982. The Court held that the statute was "not a `taxing and spending' statute but rather is authorized by Congress's powers under the Property Clause, Art. IV, § 3, cl. 2, and the Military Clauses, Art. I, § 8, cls. 12-14. The military is, in other words, just regulating its own property and manpower." Id. at 985-986. Finally, the Court noted that while some "incidental spending" might be involved, the statute was not the "kind of `taxing and spending' legislation identified in Flast as suitable for a taxpayer challenge." Id. at 988. Affirmative Spending

Defendants' final argument is that the Complaint does not allege that any taxpayer monies have been spent to support religious activities. As defendants see it, the ACLU objects not to the services being provided through the USCCB, but to the fact that certain other services are not provided — namely, contraceptive materials and abortions. Defendants refer to the Supreme Court's pre- Flast ruling denying standing to taxpayers challenging a New Jersey statute requiring that public schools open the school day with the reading of five verses from the Old Testament. See Doremus v. Bd. of Educ. of Borough of Hawthorne, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952). In Doremus, the Court ruled that the grievance at issue "is not a direct dollars-and-cents injury but it is a religious difference." Id. at 434, 72 S.Ct. 394. In that case, it was crucial to the Court's determination that there was "no allegation that this activity is supported by any separate tax or paid for from any particular appropriation or that it adds any sum whatever to the cost of conducting the school." Id. at 433, 72 S.Ct. 394. In contrast, here, the ACLU alleges that pursuant to the TVPA, tax dollars are being paid to the USCCB to support the propagation of its religious beliefs.

If defendants are right — that this is a case not about the Establishment Clause, but about the issue of abortion — and not as the ACLU insists, about an alleged unconstitutional act by Congress, namely, the delegation of Congress's spending power to a religious organization to enforce its doctrinal views, then defendants have a perhaps dispositive point. It is simply too early in the litigation, however, to make that determination. For present purposes, the court concludes no more than that the ACLU has established that it has standing to proceed.

In closing, I do not pretend that Hein offers clear direction to lower courts as to how to draw the line between just enough congressional involvement to confer taxpayer standing and too little so as to deny it. I further recognize that the distinction between congressional and executive spending propounded in Hein may be unrealistic given the complexities of modern interactions between Congress and the Executive Branch. I have no present allegiance to either side of the debate, only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies. I also agree that a rule that has no enforcement mechanism is not a rule at all. Taxpayer standing may not be the best or the most desirable or even a necessary means of enforcing the separation of church and state, but unless the Supreme Court decrees differently, it is one of the principal tools available. The uncertainty of the scope of taxpayer standing necessarily invites decisions lacking in consistency. I have no doubt that many of my colleagues would (and will) in all good faith draw the line differently than have I. But until the Supreme Court gives definitive guidance, judges will have to decide using their best understanding of the law as it exists. That is what I have attempted to do here.

ORDER

For the foregoing reasons, defendants' motion to dismiss will be DENIED. Within fourteen (14) days from the date of this Order, the parties will file a joint proposed order defining the scope and scheduling of any necessary discovery.

SO ORDERED.