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KURTZ v. KENNICKELL

November 26, 1985

DR. PAUL KURTZ, Plaintiff,
v.
RALPH E. KENNICKELL, JR., et al., Defendants



The opinion of the court was delivered by: OBERDORFER

LOUIS F. OBERDORFER, United States District Judge.

 MEMORANDUM

 I.

 Plaintiff, alleging that he is a federal taxpayer and a secular humanist, here sues the Public Printer, the Secretary of the Treasury, and the Treasurer of the United States. He alleges that their use of appropriated funds to print and publish annual compilations of prayers offered by the Chaplains of the Senate and the House of Representatives violates the Establishment Clause of the First Amendment. Plaintiff originally sought an injunction and a declaration that the practice of printing and binding the Chaplains' prayers is unconstitutional. He has, however, now withdrawn his prayer for injunctive relief and seeks only a declaratory judgment. Transcript of Proceedings (Tr.) of October 11, 1985 at 14.

 Defendants have moved to dismiss or, in the alternative, for summary judgment. Plaintiff has opposed this motion and filed a cross-motion for summary judgment. Counsel for the Senate has filed helpful briefs as amicus curiae. The motions have been fully briefed and argued.

 Since 1929, the Senate has regularly authorized, and the Congress has appropriated, funds which have been used by the Government Printing Office (GPO) to print, publish and distribute annually approximately 2,000 books of compilations of prayers offered by the Senate Chaplain. Defendant's Statement of Material Facts As To Which There Is No Genuine Issue (DSMF) at paras. 7, 8, 13 (filed Feb.; 1, 1985). The prayers printed are mostly those offered at the opening of each Senate session. Some were offered at special events elsewhere. Plaintiff's Statement of Material Facts As To Which There Is No Genuine Issue (PSMF) at para. 2 (filed March 15, 1985) *fn1" From 1913 to 1916, and 1927 until 1978, the defendants also printed and published similar compilations of prayers offered by the Chaplains of the House of Representatives, but no compilations of prayers by the House Chaplains have been printed since 1978. DSMF at paras. 3, 6.

 As a result of the most recent authorizations, *fn2" the Public Printer has printed 2,338 copies of the Senate Chaplain's prayers in two volumes at a cost of $20,414.36. DSMF at para. 12. The three preceding printings cost $26,695, $29,847 and $21,364. PSMF at para. 4. Some of these volumes have not yet been distributed. Declaration of John W. Morris, Assistant Superintendent, Congressional Printing Management Staff, GPO at para. 4 (filed April 12, 1985); Supplemental Declaration of John W. Morris at paras. 2-5 (filed Oct. 11, 1985). Those distributed have gone to a prescribed category of distributees: the Library of Congress, the National Archives, international libraries, the House and Senate Library, and to Depository Libraries. DSMF at para. 14 (citing 44 U.S.C §§ 1718, 1714, 1719, 701, 1901-1914, respectively). A number of copies go to various Executive departments and agencies, and other governmental entities. DSMF at paras. 17, 18. Congressional members and the Chaplains receive a few. DSMF at paras. 19-21. About 100 are printed for emergencies. DSMF at para. 20. The volumes are not for sale, DSMF at para. 22, but there is evidence that copies are available to members of the public without cost from several sources. PSMF at para. 3; Opposition to PSMF para. 3.

 II.

 A.

 Defendants first raise a jurisdictional concern. Defendants' motion alleges that plaintiff lacks standing to bring this action for several reasons. First, defendants argue that plaintiff lacks standing as an individual because he fails to allege concrete and particularized injury, and fails to meet the causation and redressability requirements of standing. Second, defendants argue that plaintiff has no standing as a taxpayer because (a) the expenditures were not made on authority of Congress' spending power under Article I, § 8, cl. 1 of the Constitution; (b) the challenged spending powers do not constitute a federal spending program; and (c) the amounts involved are insubstantial and are incidental to Congress' authority to conduct its internal operations.

 Defendants' challenge to plaintiff's standing, however, must fail. Our Court of Appeals' last word on this subject recognized the standing of a taxpayer to challenge the use of appropriated funds in violation of the Establishment Clause. Murray v. Buchanan, 232 U.S. App. D.C. 42, 720 F.2d 689 (D.C. Cir. 1983) (en banc); see also Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330, 3332 n.4, 77 L. Ed. 2d 1019 (1983); Katcoff v. Marsh, 582 F. Supp. 463, 467-71 (E.D. N.Y. 1984), aff'd in pertinent part, 755 F.2d 223 (2d Cir. 1985). These decisions demonstrate that a taxpayer retains standing to challenge the use of appropriated funds in ways that violate the Establishment Clause of the First Amendment. Flast v. Cohen, 392 U.S. 83, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968).

 Defendants' reliance on Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982), is misplaced. The taxpayer plaintiff in that case challenged Congress' exercise of its power under Article IV of the Constitution to convey surplus federal property, the maintenance of which was depleting the Treasury and increasing taxpayers' burdens. Here, the plaintiff relies upon a taxpayer's interest in the disposition of appropriated funds pursuant to Congress' spending power under Article I, § 8, cl. 1.

 Defendants also contend that the Flast doctrine is inapplicable because the expenditures here are de mininis and not part of a "spending program." But, in a literal sense, expenditures of up to $30,000 per year since the 1920's is a spending program. Moreover, there is no significant difference between the amounts expended here and the expenditures for a Chaplain's salary, at issue in Murray, supra. The Court of Appeals' recognition of standing in that case forecloses defendants' challenge to plaintiff's standing here based on the size and continuity of the expenditures.

 Defendants also challenge plaintiff's standing as an individual. But, whether or not plaintiff is a secular humanist, he is also a federal taxpayer. While plaintiff's interest as a skeptic about religion explains the motive for his challenge to the publication of the prayer volumes here, it does not detract from his taxpayer standing. In view of the clear precedent supporting plaintiff's claim to standing as a taxpayer, it is unnecessary to resolve the hypothetical questions which would be raised if taxpayer standing did not exist.

 B.

 On the merits, defendants urge that the printing and publishing of the prayer volumes neither advances religion nor involves excessive entanglement of government with religion. Defendants contend that since the Supreme Court has ruled in Marsh, supra, that the rendering of opening prayers in a legislature does not violate the First Amendment, "gathering those prayers into one volume cannot transform otherwise legitimate activity into an establishment of religion by the government." Memorandum of Points and Authorities in ...


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