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April 10, 1979

Paul Byrne HARING, Plaintiff,
W. Michael BLUMENTHAL, Defendant

The opinion of the court was delivered by: GREENE

In this action plaintiff requests relief from alleged religious discrimination in violation of Title VII of the Civil Rights Act of 1964, and an injunction *fn1" to restrain defendant from classifying "abortion clinics and other organizations promoting abortion and homosexuality as tax exempt organizations."

Plaintiff is an employee of the Internal Revenue Service, occupying the position of Tax Law Specialist, GS-12, in the Technical Branch of the Exempt Organizations Division. *fn2" He applied for promotion to Tax Law Specialist (Reviewer), GS-13, in that division, but was turned down, allegedly on account of his Catholic religious belief and conduct. *fn3" The government contends that there also were other reasons for plaintiff's failure to achieve promotion, but for purposes of the present motion it concedes that plaintiff was not promoted solely because of his inability or unwillingness to abide by Internal Revenue Service policies on abortion. *fn4" After receiving the agency's final decision on December 19, 1977, plaintiff filed the instant action which, as indicated, challenges the tax-exempt status of various organizations and alleges violations of his rights under Title VII. *fn5" Defendant has moved for a dismissal of the tax exempt status claim, and for summary judgment on the employment discrimination claim.


 Under section 501(a) of the Internal Revenue Code, 26 U.S.C. § 501(a), organizations more specifically designated in sections 501(c)(3) and (c)(4) as being organized for religious, charitable, *fn6" educational, or social welfare purposes, are exempt from income taxation. Within the framework of these statutory provisions, the Internal Revenue Service has granted tax-exempt status to abortion clinics and to various organizations involved with homosexual rights, and additional Revenue Rulings dealing with abortion clinics may be issued at future dates. One portion of plaintiff's suit challenges these present and expected rulings, and defendant has moved to dismiss that part of the complaint on several grounds, principally plaintiff's alleged lack of standing to bring the action.

 The requirement in the law that only a person with "standing" may pursue a lawsuit in the courts stems from the requirement in Article III of the Constitution that the federal courts may hear and decide only actual "cases" and "controversies." Flast v. Cohen, 392 U.S. 83, 95, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). While the issue of standing has been much mooted and has witnessed several shifts in perspective, it is now clear that the "gist of the question of standing" is whether the party seeking relief has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions?" See Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663 (1962). If a plaintiff is unable to make such an allegation, he lacks standing; the case then is deemed not to involve an actual controversy but to call merely for an advisory opinion; *fn7" and the court lacks jurisdiction. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 37, 48 L. Ed. 2d 450, 96 S. Ct. 1917 note 15, (1976); Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). The government asserts that this is precisely the situation here.

 Plaintiff in this case concedes, as he must, that he does not have standing to challenge the exemption rulings at issue here merely because he is a citizen or taxpayer ( Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 228, 94 S. Ct. 2925, 41 L. Ed. 2d 706 (1974); United States v. Richardson, 418 U.S. 166, 94 S. Ct. 2940, 41 L. Ed. 2d 678 (1974); Tax Analysts and Advocates v. Simon, 390 F. Supp. 927 (D.D.C.1975), Affirmed, 184 U.S.App.D.C. 238, 566 F.2d 130 (1977) ) *fn8" and claims instead to find a basis for his ability to bring this lawsuit in his employment status.

 In order to achieve standing in his capacity as an employee of the Internal Revenue Service, plaintiff must be able to allege that the challenged actions of that Service are causing him an "injury in fact" and that his interests are arguably within "the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970). In the view of this Court, he cannot satisfy either test.

 Plaintiff claims that he is suffering an injury in fact in that, but for the existence of IRS tax policies which exempt abortion clinics from taxation, he would not be subjected to the alleged discrimination with respect to promotions which stems from his objection to these exemptions. However, there clearly is an insufficient nexus between the exemption rulings plaintiff complains about and the alleged harm to his beliefs and practices to satisfy the injury in fact standard. *fn9" It is the action of the promotion panel, not the exemption rulings of IRS, which is the direct cause of the injury to plaintiff; he is able to challenge that action in a Title VII suit; he has in fact done so; and under the law his action pursuant to that statute constitutes his exclusive remedy for discrimination in employment. Brown v. General Services Administration, 425 U.S. 820, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976). *fn10"

 Plaintiff's allegation of injury in fact is thus on its face insufficient, for there would still be no cognizable injury even if the allegation were proved. Indeed, if the requisite nexus were found to exist here, every employee of every governmental organization would automatically be deemed to have standing to challenge any action of government, or at least any action of the department or agency which employs him, for he could acquire such standing by the simple device of refusing to implement the particular governmental policy and await the inevitable adverse personnel action. Were the Court to entertain such a doctrine, the consequence would be that only government employees, but not other citizens or taxpayers, would be able to challenge in court governmental action with which they disagree hardly an appropriate basis either in law or in public policy upon which to rest or extend the jurisdiction of the federal courts.

 Plaintiff has also failed to show that his interest in reversing the exemption policies is arguably within the zone of interests protected by the First Amendment.

 The abortion clinics themselves obviously are not vested with the requisite governmental authority for a valid constitutional deprivation claim, nor do they in any way impede or interfere with plaintiff's freedom of speech or religion. Insofar as the grant of tax exemptions for such clinics are concerned, while they of course constitute governmental action, it is action which does not violate the Constitution.

 Tax exemptions for religious organizations in general have long been held not to constitute an impermissible government sponsorship of religion. Walz v. Tax Commission, 397 U.S. 664, 675, 90 S. Ct. 1409, 25 L. Ed. 2d 697 (1970); Marker v. Shultz, 158 U.S.App.D.C. 224, 485 F.2d 1003 (1973). More specifically, the grant of an exemption from taxation which is otherwise appropriate, E. g. to providers of health care, does not impermissibly infringe upon the Establishment Clause of the First Amendment merely because abortions are or are not performed by the particular health care organization. See Ward v. St. Anthony's Hospital, 476 F.2d 671 (10th Cir. 1973); Chrisman v. Sisters of St. Joseph of Peace, 506 F.2d 308, 314 (9th Cir. 1974) (Catholic hospitals which refuse to allow abortions to be performed on their premises are not ineligible for tax exemption). Such exemptions do not foster an excessive governmental entanglement with religion, inhibit the free exercise of religion, or fail to reflect a secular purpose. See Tilton v. Richardson, 403 U.S. 672, 678, 91 S. Ct. 2091, 29 L. Ed. 2d 790 (1971); Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971). Different religions take different views on abortion ( Roe v. Wade, 410 U.S. 113, 160-61, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) ) and the Constitution neither requires nor prohibits governmental funding of abortions. Maher v. Roe, 432 U.S. 464, 480, 97 S. Ct. 2376, 53 L. Ed. 2d 484 (1977). For these reasons, plaintiff's claimed interest cannot be regarded as being within the zone of interests protected by the First Amendment.

 To the contrary, it is plaintiff's claim which, if granted, would be violative of the First Amendment. Should the Internal Revenue Service or the Court grant him the relief he seeks, they would do precisely that which the Supreme Court in Tilton, supra, stated government may not do they would entangle government with the tenets of plaintiff's particular religious faith and inhibit the free exercise of religion by those with views opposed to plaintiff's. *fn11" See also, Epperson v. Arkansas, 393 U.S. 97, 89 S. Ct. 266, 21 L. Ed. 2d 228 (1968). *fn12"

 Finally, even if plaintiff had standing to sue, his claim would be subject to dismissal because the Anti-Injunction Act, 26 U.S.C. § 7421(a), bars any injunctive action brought for the purpose of restraining the assessment or collection of any tax "by any person." Whatever may have been the gloss placed upon that statute by McGlotten v. Connally, 338 F. Supp. 448 (D.D.C.1972) (three-judge court), it is now clear that the law means what its words plainly imply that it prevents the institution of injunction actions to challenge tax exemption rulings in favor of other taxpayers. Bob Jones University v. Simon, 416 U.S. 725, 731, 40 L. Ed. 2d 496, 94 S. Ct. 2038 note 6, (1974); Commissioner v. "Americans United," Inc., 416 U.S. 752, 760-2, 94 S. Ct. 2053, 40 L. Ed. 2d 518 (1974); Enochs v. Williams Packing and Navigation Co., 370 U.S. 1, 82 S. Ct. 1125, 8 L. Ed. 2d 292 (1961); Bittker and Kaufman, Taxes and Civil Rights: "Constitutionalizing" the Internal Revenue Code, 82 Yale L.J. 51, 58 (1972). *fn13"

 For these reasons, defendant's motion to dismiss the claim which challenges the validity of tax exemptions to abortion clinics and ...

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