News and Notes
By George Kane
A ruling in April by the Supreme Court may well have disastrous consequences for the separation of church and state in the United States. By a 5-4 ruling in the case Arizona Christian School Tuition Organization v. Winn, the court overturned a 43 year-old precedent that had allowed tax payers to sue governments that subsidized religious institutions.
The precedent at issue was established by the Warren Court in the 1968 case Flast v. Cohen. In that case, Florance Flast sued Wilbur Cohen, the Secretary of Health, Education, and Welfare, contending that spending on religious schools violated the First Amendment’s ban on the establishment of religion. The District Court denied standing, and plaintiffs appealed directly to the Supreme Court.
The majority opinion by Chief Justice Earl Warren ruled that taxpayers have standing to argue that the taxation and spending authority of government is being used to violate a constitutional restriction. This decision has permitted secularists ever since to go to the courts to stop government subsidies for religious schools, churches and religious activities.
In the Arizona Christian School Tuition Organization case, the government subsidy was provided in the form of a dollar-for-dollar tax credit for parents paying tuition for Christian schools. The Arizona legislature set up a simple shell game to launder tax dollars that were paid to subsidize Christian schools. Parents made their tuition payments not directly to the schools, but to the Arizona Christian School Tuition Organization, which then turned the payments around and sent them to the schools. The parents then were credited for 100% of their payments when they filed their state income tax.
The Arizona subsidy program for religious schools went into effect in 1999, and has been challenged through the courts since then. After a lengthy tour of the judicial system, the United States Ninth Circuit Court of Appeals finally ruled the program unconstitutional. The Supreme Court set aside that opinion, however, but not because of any error in law or logic by the Circuit Court. Without addressing the question of a First Amendment violation, the decision by Justice Kennedy dismissed the suit because the plaintiffs lack standing.
The decision does not overturn Flast, but provides a simple solution for governments to subvert it. Kennedy found that Flast provided taxpayer standing only when the defendant government spent money, but that in the case of a tax credit there is no expenditure. Kennedy’s opinion was joined in full by the usual slate of right-wing Catholics –Chief Justice John Roberts, and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.
The Court’s newest Justice, Elena Kagan, wrote for the four dissenters. She accepted the view of the plaintiffs that the Arizona program, in fact, uses public tax revenues to subsidize parochial tuition. She wrote that since the program’s inception, it “has cost the state…nearly $350 million in diverted tax revenues.” The decision, she said, “devastates taxpayer standing” in cases involving claims that the government is breaching the constitutional wall of separation between religion and government. She accused the majority of seriously misinterpreting, and “ravaging,” the Flast precedent. “In not a single non-trivial respect could the Flast Court recognize its handiwork in the majority’s depiction,” she wrote.
The dissenting opinion said the majority had manufactured a specious distinction between direct spending subsidies and aid to religion through tax credits. That conclusion, Justice Kagan wrote, “has as little basis in principle as it has in our precedent….Taxpayers pick up the cost of the subsidy in either form….What is a cash grant today can be a tax break tomorrow.” The majority opinion, Kagan said, allows a taxpayer to challenge a grant, but not a tax break, but she argued that a tax break is just another form of a “tax expenditure.”
“Assume,” she wrote, that a given state wishes to “subsidize the ownership of crucifixes…It could purchase them in bulk and distribute them; it could reimburse buyers with a check; or it could pay with a tax credit. Now, really—do taxpayers have less reason to complain if the state selects the last of these three options?”
Joining in the dissent were Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor.
Since, according to this decision, taxpayers do not have standing to challenge religious subsidies, who does? No one. The court has provided legislatures with a simple tool to shield from the courts any subsidy of religion: tax credits. Bills are in the works in state legislatures across the nation, including in Minnesota, to implement the plans like the one Arizona used in this case. The Establishment Clause of the First Amendment is thereby rendered an empty shell. The only protection we have against our tax money being paid to religious organizations is now to elect candidates who are committed to the separation of church and state.
As I am writing this I heard on the radio that the Seventh District Circuit Court has overturned the ruling that the Day of Reason is unconstitutional, dismissing the case because the Freedom from Religion Foundation lacks standing. The door to challenge Establishment Clause violations may already be closed.