Civil Rights — No Taxpayer Standing in Religious Exemption Case

Ansley v. Warren (Lawyers Weekly No. 001-143-17, 18 pp.) (Wilkinson, J.) No. 16-2082, June 28, 2017; USDC at Asheville, N.C. (Cogburn, J.) 4th Cir.

Holding: Plaintiffs, including same-sex couples who are either engaged or married, cannot rely on taxpayer standing to challenge North Carolina Senate Bill 2, which grants state magistrates a religious exemption from performing marriages of same-sex couples; the 4th Circuit affirms dismissal of their Establishment Clause challenge for lack of standing.

Public Spending

Senate Bill 2 grants magistrates and registers of deeds the right to declare any sincerely held religious objection to performing certain kinds of marriages, after which they would be recused from participating in any marriages for a six-month period. If all of the officials in a county recused themselves, the North Carolina Administrative Office of the Courts (NCAOC) would arrange to bring a willing magistrate from another county to conduct marriages.

Plaintiffs brought this 42 U.S.C. § 1983 action against the current director of the NCAOC, asserting that SB 2 violates the Establishment Clause first, by spending public funds to bring magistrates from Rutherford County to McDowell County because McDowell County magistrates have recused themselves from performing marriages; and second, because SB2 directs the NCAOC to make a one-time payment into the state retirement system on behalf of each reappointed magistrate.

The district court concluded the contemplated expenditures were merely incidental and plaintiffs’ suit did not fall within the narrow confines of Flast v. Cohen, 392 U.S. 83 (1968).

Plaintiffs’ Injuries

Plaintiffs concede the state has not impeded or restricted their opportunity to get married. One same-sex couple married in 2014, another same-sex couple is engaged to be married and the last pair of plaintiffs, an interracial couple, married in 1976.

The Supreme Court has repeatedly held that a taxpayer’s interest in ensuring that collected funds are spent in accordance with the Constitution is too generalized and attenuated to confer Article III standing. In Flast v. Cohen, however, the court carved out a narrow exception to the general rule against taxpayer standing, holding that federal taxpayers have standing to bring an Establishment Clause challenge to a congressional statute that distributed federal funds to parochial schools. Under Flast, a taxpayer must show that his tax money is being extracted and spent in violation of specific constitutional protections.

Here, the link between legislative action and the expenditures in SB 2 is attenuated. There is some token amount of funds disbursed for travel expenses and retirement contributions, but plaintiffs cannot point to any specific appropriations by the legislature to implement the recusal scheme. The Supreme Court has never found this kind of ancillary spending to provide an adequate basis for standing. The challenged provisions of SB 2 are too far detached from legislative taxing and spending to establish the requisite “logical link” under Flast.

Just as an exercise of the legislative taxing and spending power is missing on the front end of the test, so too is a traditional Establishment Clause violation on the back end. Not one penny goes to a religious institution or sectarian entity under SB 2.

The outcome here is in no way a comment on same-sex marriage as a matter of social policy. The case before us is far more technical – whether plaintiffs, simply by virtue of their status as state taxpayers, have alleged a personal, particularized injury for the purposes of Article III standing. Based on a century of Supreme Court precedent, we conclude they have not.