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March 1, 1985

ABORTION RIGHTS MOBILIZATION INC., et al., Plaintiffs, against DONALD T. REGAN, Secretary of The Treasury, and ROSCOE L. EGGER, JR., Commissioner of Internal Revenue

The opinion of the court was delivered by: CARTER


This renewed motion to dismiss the amended complaint for lack of subject mater jurisdiction is based upon the recent Supreme Court decision in Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984). The question presented is whether and to what extent the Allen opinion affects the outcome reached by this court in Abortion Rights Mobilization, Inc. v. Regan, 544 F. Supp. 471 (S.D.N.Y. 1982) (Carter, J.) ("ARM"), with which familiarity is assumed. ARM held that the clergy plaintiffs and the Women's Center for Reproductive Health had standing under the establishment clause, and that 20 individuals and three tax-exempt organizations had standing as voters in this litigation. *fn1"

 The Supreme Court held in Allen that a nationwide class of parents of black children attending public schools in districts undergoing desegregation, but who had not actually been denied entry to allegedly discriminatory private schools, did not have standing to challenge the tax exempt status of those schools.

 In applying Allen to the present case it must first be noted that the Court did not close the door on private suits challenging government grants of tax exemption, see Allen, 104 S. Ct. at 3332 (noting possible propriety of standing in Coit v. Green, 404 U.S. 997, 30 L. Ed. 2d 550, 92 S. Ct. 564 (1971), summarily aff'g. sub nom., Green v. Connally, 330 F. Supp. 1150 (D.D.C.), which made allegations comparable to those in Allen but with different facts), but used traditional analysis in concluding that the Allen plaintiffs lacked standing.

 The Court held that "the law of Art. III standing is built on a single basic idea--the idea of separation of powers." Allen, 104 S. Ct. at 3325. This is an integral part of the precedent upon which both Allen and ARM were decided. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471-476, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982); Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). Separation of powers, as Allen, 104 S. Ct. at 3330 n.26, clearly demonstrates, is not a distinct line of analysis but serves as the basis of the "traceability" part of the traditional three part standing test of personal injury fairly traceable to the defendant's allegedly illegal conduct which is likely to be remedied by the requested relief. Id. at 3325. *fn2"

 More specifically, plaintiffs in Allen asserted two types of damage: the first was characterized as either a generalized injury based upon the government's behavior in granting tax exemptions to the schools or as denigration suffered by all blacks as a result of government discrimination. In either case, the Court found the harm to be insufficiently personal to constitute a justiciable cognizable injury. Id. at 3326. The second alleged injury was the children's diminished ability to receive an education in a racially integrated school. Id. at 3328. This was found wanting because desegregated schooling was not fairly traceable to the allegedly illegal conduct of the IRS. Id. at 3326.


 While it is clear that stigmatizing injuries are the sort of noneconomic wrongs caused by government conduct that sometimes can be sufficient to support standing, Heckler v. Mathews, 465 U.S. 728, , 104 S. Ct. 1387, 1395, 79 L. Ed. 2d 646 (1984), such status is accorded only to those who can allege a resultant harm to a concrete, personal interest. Allen, 104 S. Ct. at 3327-328. The ARM decision used this analysis to find that the lay and organizational plaintiffs did not have standing while the clergy plaintiffs and the Women's Center for Reproductive health, a church affiliated guidance service, asserted a "compelling and personalized" injury, ARM, 544 F. Supp. at 479, that "diminishes their position in the community, encumbers their calling in life, and obstructs their ability to communicate effectively their religious message." Id. at 480. Such allegations meet the test enunciated in School District of Abington Township, Pa. v. Schempp, 374 U.S. 203, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963), that would-be plaintiffs must show that they are "directly affected by the laws and practices against which their complaints are directed." Id. at 224 n.9.

 Personal injury, however, is not enough. Plaintiffs must also clear the two additional hurdles of the standing test. This court, in ARM, found plaintiffs' establishment clause injury to be traceable to defendants' conduct because "[t]acit government endorsement of the Roman Catholic Church view of abortion hampers and frustrates these plaintiffs' ministries." Id. at 480. The court therefore found plaintiffs' asserted injuries to be traceable to "official approval of an orthodoxy antithetical to [plaintiffs'] spiritual mission." Id.

Their injury flows directly from the federal defendants allowing the church defendants the privilege of retaining § 501(c)(3) status while electioneering and denying this privilege to other religious organizations. The granting of a uniquely favored tax status to one religious entity is an unequivocal statement of preference that gilds the image of that religion and tarnishes all others. A decree ordering the termination of this illegal practice and restoring all sects to equal footing will redress this injury.


 This finding is consistent with Allen. Allen holds that tax exemption granted to an organization that allegedly practices an illegal activity does not in itself constitute the necessary connection between government action and injuries that flow from the activity. The lack of desegregated schooling, defined in Allen as a cognizable injury, was not found directly traceable to government action. "From the perspective of the IRS, the injury to respondents is highly indirect and 'results from the independent action of some third party [i.e., the discriminatory private school] not before the court.'" Allen, 104 S. Ct. at 3328, quoting, in part, Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 42, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976). The Court stated that if a direct link between tax exemption and desegregation could be established, i.e., if there were enough racially discriminatory private schools receiving tax exemptions in respondents' communities for withdrawal of those exemptions to make an appreciable difference in public school integration, then the alleged injury would be fairly traceable to unlawful IRS grants of tax exemptions. Allen, 104 S. Ct. at 3328.

 Similarly, redress of the establishment clause injury sustained in ARM does not depend upon any action by a third party. Redress will come directly form the government's consistent enforcement of the tax laws, not from any change in the political activities of the Church. Plaintiffs' establishment clause injury centers on the quasi-official imprimatur accorded the anti-abortion activities of the Church through tax exemptions and the restrictions placed on the establishment clause plaintiffs' political activities by § 501(c)(3). Whether the allegations can be proved is not a question for this court now to decide since it must accept as true all material allegations of the complaint and construe the complaint in favor of the complaining party. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 109, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979).

 It is thus apparent tha Allen supports the court's earlier decision which denied standing under the establishment clause to those plaintiffs who, similar to those in Allen, asserted only general claims of denigration, but which granted standing to those plaintiffs who could pass the three part test of ...

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