In a published opinion authored by Judge Wilkinson, the Fourth Circuit today rejected a challenge by three same-sex couples to the North Carolina law that allows county magistrates to refuse to perform same-sex marriages on the ground of “religious objection.”  The Court upheld the district court’s determination that the plaintiffs lacked standing to pursue a claim under the Establishment Clause.  The couples, who were all either married or engaged to be married, claimed that the law violated their rights as taxpayers because it constituted the expenditure of public funds in support of religion.  The Fourth Circuit’s opinion includes an extensive discussion of the concept of Establishment Clause standing and the narrow application of the taxpayer standing doctrine by the Supreme Court.  In Flast v. Cohen, 392 U.S. 83 (1968) the Supreme 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 if (1) there is a “logical link” between the plaintiff’s taxpayer status and the “type of legislative enactment attacked” and (2) there is a “nexus” between the plaintiff’s taxpayer status and the “precise nature of the constitutional infringement being alleged.” The Fourth Circuit held that the plaintiffs in this case failed both prongs of the Flast test.  First, the Court found that the “incidental expenditure[s] of tax funds in the administration of an essentially regulatory statute” alleged by Plaintiffs were not sufficient to invoke the doctrine.  Second, the Court held that because none of the state funds ancillary to the law is directed to a religious institution, there is no “nexus” between that money and an “aid of religion.”  Thus, the plaintiffs lacked standing to challenge the law.

Significantly, this case did not involve a traditional Establishment Clause “injury” where someone’s rights were allegedly being infringed by a law related to another party’s exercise of religion.  The plaintiffs did not allege that the law prohibited them from exercising their right to marry.  It is possible that had that been the allegation, and the facts supported that allegation, the outcome would have been different.  The Court noted in concluding that

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 that they have not.

Given the current political and social environment in North Carolina, it would not be surprising to see another challenge to this law launched with different plaintiffs under a different theory of standing.

–Patrick Kane