A closely divided Supreme Court issued a seriously flawed decision today in Arizona Christian Tuition v. Winn , using constitutional sleight of hand to get around the Establishment Clause's prohibition against the use of public funds for religious purposes and to frustrate Americans' ability to go to court when the constitutional guarantee of church-state separation is violated.
Here's the background to the case, which involves the state of Arizona's program to support religious schools.
States are constitutionally prohibited from directly supporting religious education. So Arizona figured out a way to try to get around that inconvenient First Amendment by setting up a system where that money goes to the religious organization before it gets to the treasury.
Arizona has a program where taxpayers get dollar-for-dollar tax credits for money they give to "school tuition organizations" (STOs), nonprofit organizations that award private school scholarships to children. Many of the STO awards actually require parents to send their children to religious schools as a condition of receipt.
So an Arizonan can take a certain amount of money that he owes in taxes and instead give it to a religious STO to pay for someone's religious education. As Justice Kagan said during oral arguments, Arizona established the program so STOs, acting as state intermediaries, could "make distinctions that the state itself cannot make."
Essentially, the state has set up a money laundering scheme to get around the Establishment Clause.
However, before the Court could address the program's constitutionality, it first had to determine if the taxpayer plaintiffs have standing to sue. The Constitution prohibits federal courts from hearing a case unless the plaintiff has a personal stake in the outcome. Simply being a taxpayer generally does not give you such a personal stake. However, in the Flast v. Cohen decision of 1968, the Supreme Court recognized that federal taxpayers do have such a stake when they challenge Congressional spending.
The Roberts Court today ignored common sense and the reasoning of Flast and concluded that Arizona state taxpayers don't have standing to bring this case to federal court. As they did in the 2007 Hein v. Freedom From Religion Foundation case, the five conservatives acted to prevent courts from enforcing the Establishment Clause of the First Amendment.
According to the Roberts Court, there is no government spending here to contest. Instead, it is simply a series of independent spending decisions made by private citizens who are spending their own money, not the government's.
This is constitutional sleight of hand at its worst, which Justice Kagan pointed out in dissent. As she noted, the majority is making an arbitrary distinction between cash grants and targeted tax breaks for the purposes of standing: Either way, the government has financed religious activity, so either way, taxpayers should be able to challenge the subsidy.
Since there are times when no one other than taxpayers has suffered the injury necessary to challenge government sponsorship of religion, the majority opinion "will diminish the Establishment Clause's force and meaning." The dissent continued:
"The Court opinion thus offers a roadmap – more truly, just a one-step instruction – to any government that wishes to insulate its financing of religious activity from legal challenge. Structure the funding as a tax expenditure, and Flast will not stand in the way. No taxpayer will have standing to object. However blatantly the government may violate the Establishment Clause, taxpayers cannot gain access to the federal courts."
It is a good day for the religious right, and a bad one for the United States Constitution and the rule of law.