WASHINGTON (ABP) — A Supreme Court case involving an Arizona program that funds private schools has the potential to change the way the law handles cases dealing with government endorsement of religion.
The justices of the nation’s highest court heard oral arguments Nov. 3 in two cases the court had consolidated: Arizona Christian School Tuition Organization v. Winn (No 09-987) and Garriott v. Winn (No. 09-991).
The cases raise two questions. One is whether an Arizona program that awards tax credits for donations to organizations that provide scholarships to private religious schools violates the First Amendment’s ban on government support for religion. The other concerns whether taxpayers have legal standing to sue to stop such a program.
If the court sides with the state, one consequence could be a significant reduction in taxpayers’ ability to sue governments over violations of the First Amendment clause that says "Congress shall make no law respecting an establishment of religion.”
Although the case involves a state program, many court watchers were surprised — and many supporters of strong church-state separation angered — that the Obama administration weighed in on Arizona’s side.
Arguing for the federal government, Acting Solicitor General Neal Katyal said, contrary to a lower court’s decision, taxpayers had no standing to sue Arizona over the program, because taxpayers are not directly funding religious schools.
“Not a cent of the respondent’s money goes to fund religion,” Katyal said. “If you placed an electronic tag to track and monitor each cent that the respondent plaintiffs pay in tax, not a cent — not a fraction of a cent — would go into any religious school’s coffers.”
Katyal further argued that because the taxpayers who objected to their state subsidizing religious schools could not prove any tax injury to themselves, they had no standing to file the case.
Katyal's former boss — former U.S. solicitor general and now the court’s newest member, Justice Elena Kagan — reeled off a series of past Supreme Court decisions in which taxpayers challenged Establishment Clause violations in much the same manner. She asked Katyal if he believed the court lacked authority to hear those cases because the taxpayers had no legal standing to bring them.
“My answer to you is yes,” he said.
Justice Anthony Kennedy — a regular “swing vote” on church-state issues — seemed taken aback by that response. “I just want to make sure I heard your answer to the [question]. Your answer is yes?” he asked.
Justice Ruth Bader Ginsburg said one of the court’s main precedents established that without the court recognizing taxpayer standing in such cases “the Establishment Clause will be unenforceable.”
“We have a Bill of Rights, and most provisions have plaintiffs who are hurting, whose speech is being suppressed, but this one doesn’t have," she said. "It’s in the Constitution like all the others, and I thought, to be candid, that that’s what the problem was in Flast v. Cohen, and that’s what the court was responding to.” .
Katyal said the Flast precedent offered “a very narrow exception when someone’s dollars are being taken out of their pocket and spent by the government on religion — and I don’t think that’s happening here.”
Several conservative religious groups have filed friend-of-the-court briefs in favor of Arizona in the case. The Baptist Joint Committee for Religious Liberty, Interfaith Alliance and several other church-state separationist groups have filed a brief urging the court to strike down the program and preserve taxpayer standing.
A decision in the cases is expected by June.
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Robert Marus is managing editor and Washington bureau chief for Associated Baptist Press.