WASHINGTON (ABP) – The U.S. Supreme Court ruled 5-4 on April 4 against Arizona taxpayers who claimed that a state law allowing tax credits to fund scholarships for students who attend private schools violates the separation of church and state.
“This is a disappointing decision,” said Hollyn Hollman, general counsel for the Baptist Joint Committee for Religious Liberty. “A state legislature should not be able to avoid a legal challenge by simply using an alternative tax mechanism.”
Arizona’s tax code includes a program that allows individuals to direct up to $500 of their state income tax bill to a state tuition organization that awards scholarships primarily to religious schools. The taxpayers contended that indirect use of public funds to support religious institutions violates the First Amendment’s ban on state-sponsored religion.
The Supreme Court never got around to the Establishment Clause argument, however, deciding that the plaintiffs lacked legal standing to sue in federal court.
Writing for the majority, Justice Anthony Kennedy said that in order to make an Establishment Clause claim plaintiffs must demonstrate direct harm, such as mandatory prayer in a public school or a tax benefit conditioned on religious affiliation, and not just “conjectural” or “hypothetical” harm.
The Arizonans had hoped to prevail under a narrow exception to a general rule that being a taxpayer alone is not enough for standing established in Flast v. Cohen, a 1968 Supreme Court decision that a taxpayer can under some circumstances sue the government to prevent an unconstitutional use of taxpayer dollars.
The majority decided that the ruling applied only to expenditures of tax funds and not to tax credits.
“Few exercises of the judicial power are more likely to undermine public confidence in the neutrality and integrity of the Judiciary than one which casts the Court in the role of a Council of Revision, conferring on itself the power to invalidate laws at the behest of anyone who disagrees with them,” Kennedy wrote. “In an era of frequent litigation, class actions, sweeping injunctions with prospective effect and continuing jurisdiction to enforce judicial remedies, courts must be more careful to insist on the formal rules of standing, not less so.”
The Baptist Joint Committee, which joined a brief by Americans United for Separation of Church and State asking the court to protect the rights of taxpayers to bring the suit, said standing is increasingly cited in court decisions regarding the establishment of religion.
The Supreme Court ruling in Arizona Christian School Tuition Organization v. Winn overturned a finding by the 9th U.S. Circuit Court of Appeals that the challengers had legal standing to sue and restored a district court’s ruling that they did not.
Hollman said the decision “denies citizens the right to fight for strong protections against a governmental establishment of religion.”
Joining Kennedy in the majority were Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor joined in a dissenting opinion written by Justice Elena Kagan.
“[A]ssume a state wishes to subsidize the ownership of crucifixes,” Kagan wrote. “It could purchase the religious symbols in bulk and distribute them to all takers. Or it could mail a reimbursement check to any individual who buys her own and submits a receipt for the purchase. Or it could authorize that person to claim a tax credit equal to the price she paid.”
“Now, really — do taxpayers have less reason to complain if the state selects the last of these three options?” she continued. “The Court today says they do, but that is wrong. The effect of each form of subsidy is the same.”
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Bob Allen is senior writer for Associated Baptist Press.