Circuit found that federal taxpayers had standing to raise an Establishment Clause challenge to Congress's chaplaincy practice. See discussion n.2 supra. The panel's decision was vacated and withdrawn when the court granted rehearing en bane. however, see 674 F.2d 14-34 ("Editor's Note"), and the en bane panel ultimately remanded for dismissal "for want of a substantial constitutional question" in light of the Supreme Court's intervening decision in Marsh. See Murray. 720 F.2d at 690. As then-Judge Ginsburg (who would have found standing) noted in her separate statement in Murray, the en bane panel's disposition "l[eft] open the two divisive justiciability issues (standing and political question) initially confronted in the case."16 720 F.2d ' at 699 (separate statement ofR.B. Ginsburg, J.): accord Keener v. Washington Metro. Area Transit Auth.. 800 F.2d 1173, 1181 (D.C. Cir. 1986) (noting that Murray declined to review these justiciability issues), cert. denied. 480 U.S. 918 (1987). Thus, Murray, like Marsh, does not resolve the standing issue before this Court.17
Plaintiff, of course, may have a genuine interest in Establishment Clause issues, and may
"We also acknowledge Judge Oberdorfer's decision in Kurtz v. Kennickell. 622 F.Supp. 1414 (D.D.C. 1985), which found taxpayer standing to challenge use of public funds to print and publish annual compilation of prayers by congressional chaplains. It is doubtful that Judge Oberdorfer's standing decision survives the D.C. Circuit's subsequent decision in Kurtz v. Baker. a companion case to Kurtz v. Kennickell. See 829 F.2d at 1139-1140 (no taxpayer standing to challenge Congress's guest chaplaincy practice). In any event, in Kennickell. Judge Oberdorfer based his standing decision on the D.C. Circuit's en bane opinion in Murray, which he interpreted as "recogniz[mg] the standing of a taxpayer to challenge the use of appropriated funds in violation of the Establishment Clause." See 622 F.Supp. at 1416. As noted in the text, Murray did not decide the taxpayer standing issue. See Keener. 800 F.2d at 1181.
"ie. fact, the only D.C. Circuit decision definitively addressing the standing issue is Elliott v. White. 23 F.2d 997 (D.C. Cir. 1928), where the court (pre-Flast) held that a plaintiff lacked citizen and taxpayer standing to challenge, on First Amendment grounds, the payment of federal funds to congressional and military chaplains. See uL at 998; see also Murray v. Morton. 505 F.Supp. at 145-46 (Elliott still good law), vacated and appeal dismissed on other grounds sub nom. Murray v. Buchanan. 720 F.2d 689 (D.C. Cir. 1983).
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