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Show The Court should not deprive appellant of the opportunity to vindicate his constitutional rights merely because the controversy touches upon foreign relations. If such a proposition were to be given effect and carried to its logical conclusion, it would mean that Congress could levy taxes on appellant and other United States citizens to raise money to subsidize the Vatican, the Catholic Church, Buddists in Asia, or any religious organization they might choose. On its face, such a proposition seems absurd, but this is precisely what Congress has done through the use of its power to tax and spend for the general welfare in the case at bar. The Supreme Court has proscribed this kind of religious favoritism: "Our history vividly illustrates that one of the specific evils feared by those who drafted the establishment clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general." Flast v. Cohen, 292 U.S. 83, 103 (1968). Plaintiff's complaint herein and the affidavit of Rabbi Elmer Berger incorporated therein asserts violation of fundamental constitutional rights guaranteed to plaintiff by the Constitution. The district court below is given jurisdiction by Congress to resolve cases wherein a plaintiff challenges an act of Congress as being repugnant to the Constitution. 28 U.S.C. 1331(a). A determination of the constitutional question presented in this case "falls within the traditional role accorded to the courts to interpret the law," and does not involve a lack of respect for a coordinate branch of the government or an initial policy determination "clearly for nonjudicial discretion". Powell v. McCormack, 395 U.S. 486. (1969). - 5 - |
