Supreme stupidity

The Supreme Court just released its decision in Arizona Christian School Tuition Organization v. Winn [PDF]. It is bad, but not in the way you’d expect.

First, let me explain the details of the case. Arizona law sets up a legal category called a “student tuition organization.” This is a private group that gives scholarships to students. Now, private individuals can donate up to $500 to these organizations and receive an identical credit on their state taxes — i.e., they lose no money at all. Effectively, the state government is sending up to $500 of tax revenue directly to the group. The problem, of course, comes from the fact that these organizations don’t have to give generic scholarships that can be used at any school — they can (and often do) give scholarships that are limited to schools that teach a particular religion. That results in a pretty reasonable Establishment Clause argument against the program. The government isn’t supposed to be paying for religious education.

Of course, the are reasonable arguments on the other side too. This is a broad class of potential scholarship activities that includes scholarships with less strings attached (or strings that aren’t religion-specific). Maybe you could argue that it’s like tax deductions for donations to nonprofits. Those nonprofits could include churches, but it’s a very broad class of organizations, not just a simple subsidy for churches. Or you could argue that it’s like Pell Grants, which can be used to attend colleges with religious affiliation or study programs. Those seem like reasonable arguments to me, and it doesn’t strike me as an easy case to decide.

What does seem easy, though, is figuring out that the actual logic used by the Supreme Court is moronic. First of all, they didn’t actually decide on the constitutionality of the program. They decided that the person who brought the challenge didn’t have standing to do so. Now, in Establishment Clause cases, it’s standard to allow any taxpayer who objects to the use of their money for religious programs to bring the suit. This isn’t allowed in all other cases. If the government uses my tax money to suppress free speech, it’s the people being prevented from speaking who have to bring the lawsuit, not just any taxpayer. (I happen to believe that this is a stupid policy in general, but that’s not relevant here.) In this area, though, to not allow taxpayer lawsuits would mean there was basically no one with standing, and therefore even if the program was unconstitutional it would never be challenged. So, since 1968 (Flast v. Cohen) the Supreme Court has allowed taxpayer standing in these cases.

The Supreme Court didn’t change that here. What they actually did was just rule that this wasn’t one of those cases. But why not, you might ask? Clearly the state is spending money on a program that is being challenged on Establishment Clause grounds. Well, because instead of giving out vouchers to people that are worth $500 and then paying $500 to whichever one of the organizations these people chose, the state is having them pay the $500 and then paying them back. That, apparently, is totally different. The New York Times quoted the decision:

“Awarding some citizens a tax credit allows other citizens to retain control over their own funds in accordance with their own consciences,” Justice Kennedy wrote for himself, Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

The plaintiffs’ position, Justice Kennedy wrote, “assumes that income should be treated as if it were government property even if it has not come into the tax collector’s hands.” But, he added, “private bank accounts cannot be equated with the Arizona State Treasury.”

See, if I have an objection to the spending of money on religious education, this program doesn’t affect me, because my money isn’t being spent on religious education. It’s being spent to reimburse Bob’s spending on religious education. That means my tax money isn’t being spent to further religious education, right? It’s just going to help Bob.

For what it’s worth, not everyone on the Supreme Court is that stupid:

In her dissent, Justice Kagan said the majority’s position was an elevation of form over substance. “Taxpayers experience the same injury for standing purposes,” she wrote, “whether government subsidization of religion takes the form of a cash grant or a tax measure.”

She offered examples. “Suppose a state desires to reward Jews — by, say, $500 per year — for their religious devotion,” she wrote. Would it matter to taxpayers offended by the practice whether the reward came in the form of a government stipend or a tax credit?

“Or assume,” she wrote, “a state wishes to subsidize the ownership of crucifixes” in one of three ways. 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?” Justice Kagan asked.

I don’t know if I should be encouraged that someone on the Supreme Court was able to explain this so clearly, or amazed that even with such a clear explanation the other five of them couldn’t figure this out.

As far as I can tell, the government could, under this ruling, write a law that says, “Donations to the Catholic Church will now get identical reductions in taxes for people who make them.” Now, that’s obviously unconstitutional, and the Supreme Court I’m sure would agree. They just wouldn’t ever think about the question, because no one has standing to bring the case.

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24 Comments

  1. So is it just your aversion of religion that makes you upset? What I mean is, it sounds as if the credit was given for donation to a secular private school, which the monies go into Mr. Private school owner, that is preferable to going to a religious organization.

    Remember the constitution does not require the government to be hostile and discriminatory towards religion.

  2. Um… no. I wrote that there are reasonable arguments on both sides of this issue, and it doesn’t seem clear-cut to me. The problem with this decision is that, the way the majority of the court interpreted the issue, nobody has standing to challenge it. They came to this understanding by completely ignoring the fungibility of money and pretending that a $500 reduction in your taxes is fundamentally different from a $500 subsidy paid out of tax revenue. This is basically a free license for legislators to fund religious organizations via dollar-for-dollar tax credits. Those laws would be unchallengeable by anyone, except by overturning this ruling (which the Supreme Court is generally extremely reluctant to do).

  3. The donation is not made to a church, it is made to the school portion of the religious institution. In the same way Planned Parenthood’s $350 million in federal money doesnt go directly to actual abortion procedures, but it does go into another account which frees up money for abortion procedures. (I’m not making this about abortion, but making a comparison in the way the funds are handled).

    So then , you are for discriminating against religious institutions when it comes to financial incentives by the government? Why should only secular institution donations qualify for tax incentives?

  4. Aristarchus

     /  April 5, 2011 at 3:50 pm

    Ok, John, I’m sorry to be rude, but your reading comprehension is laughable.

    Your point in the list last comment makes sense if it’s a secular school being run by a church, but not if it’s a religious school.

    But more importantly, you are completely missing the point. NFQ said both in the post and her last comment that she is not talking about whether the actual program is constitutional. She is arguing about whether this standing hurdle prevents the Supreme Court from even considering whether it’s constitutional (and creates a similar hurdle in other cases where the actions clearly *are* unconstitutional).

    Before you respond to this comment, please look up a legal definition of “standing” and read it. You clearly have no clue what you are talking about.

  5. John, did you not get that NFQ said she could see the arguments either way? For what it’s worth, in the very article you are commenting on NFQ presents several possible arguments that the exemptions should still be available. The issue is that teh supreme court never ruled on the case; they proclaimed that no taxpayer has standing to challenge the law. Which is absurd.

    For the record, I think a scholarship program like this could be constitutional and I’m a rabid atheist. As long as the program didn’t discriminate against future scholarship programs on the basis of religion (if someone wants to do a muslim one or hindu one or even an atheist one) and the tax credit amount did not become unreasonably large.

    But I do not think that the program should be above reproach. In fact, no program should be above challenge. Because, as NFQ and the dissenting judges laid out, it opens up a gaping hole to squirm around the establishment clause that power-hungry pastors and credulous representatives would (and will, i predict) gladly exploit.

  6. Aris — *Sigh*, I do get it, I just don’t see why atheists get so bent out of shape when the government does anything which is not hostile towards religion. This was the aspect of the commentary I chose to address.

    Forgive me for not posing my comments to your satisfaction. Perhaps you can give me your e-mail address and I’ll run all future comments by you first.

  7. Aristarchus

     /  April 5, 2011 at 4:02 pm

    Aris — *Sigh*, I do get it, I just don’t see why atheists get so bent out of shape when the government does anything which is not hostile towards religion. This was the aspect of the commentary I chose to address.

    Forgive me for not posing my comments to your satisfaction. Perhaps you can give me your e-mail address and I’ll run all future comments by you first.

    The “aspect of the commentary” that you chose to address doesn’t exist anywhere in the commentary. You’re responding to phantom arguments you made up.

  8. “The problem, of course, comes from the fact that these organizations don’t have to give generic scholarships that can be used at any school — they can (and often do) give scholarships that are limited to schools that teach a particular religion. That results in a pretty reasonable Establishment Clause argument against the program. The government isn’t supposed to be paying for religious education.”

    “See, if I have an objection to the spending of money on religious education, this program doesn’t affect me, because my money isn’t being spent on religious education. It’s being spent to reimburse Bob’s spending on religious education.”

    It would seem as though NFQ’s objection is based mostly on the religious nature of the institutions receiving the tax incentive, since I don’t see anything about complaining that any money could be going to secular private institutions, which led me to my conclusion that the problem is the government isnt hostile enough toward religion for you people, that religion is the problem.

  9. Aristarchus

     /  April 5, 2011 at 4:42 pm

    Ok, John, let me spell this out for you like you’re a fourth grader taking a state-administered reading comprehension test:

    In the first block you have quoted above, she is pointing out that there is a reasonable argument against the program. She isn’t actually agreeing with the argument. How do you know that? You read the next paragraph. She gives arguments the other side could make and says, “Those seem like reasonable arguments to me, and it doesn’t strike me as an easy case to decide.” That means she’s not taking a position on this issue – just pointing out that it is a controversy with reasonable people on both sides.

    She then begins the paragraph after that with “What does seem easy, though, is figuring out that the actual logic used by the Supreme Court is moronic.” That’s the thesis statement of this post. It sets out clearly what she is actually arguing for, which is that the particular logic the Supreme Court used in this case is flawed.

    The second section you quote begins with “if I have an objection” – emphasis on *if*. It is a hypothetical where the pronoun “I” is being used to denote a generic person into whose place the author is placing herself. Her point is that if someone were to oppose direct government spending, they would also equally oppose government reimbursement for someone else’s spending on the same thing. There is no distinction there. That is her problem with the Supreme Court’s reasoning.

    To make herself more clear, she ends the post by pointing out that the denial of standing, which is what she’s arguing against, would also apply in the case of things that clearly were unconstitutional. The implication of including such an application at the end of her post is that such an application is different in type from the application she was previously discussing. She points out how they differ – the obviousness of the unconstitutionality – which should further make clear that she did not belief such obvious unconstitutionality applied to the originally-discussed case.

    You refer to “NFQ’s objection” and you’re reading those passages as if attempting to figure out the nature of her objection. In reality, she advocates no objection whatsoever to the actual program – only to the decision about standing requirements. You, however, are arguing about the actual program. You have completely and utterly misunderstood everything she said.

  10. “Other plaintiffs may demonstrate standing on the ground that they have incurred a cost or been denied a benefit on account of their religion. Those costs and benefits can result from alleged discrimination in the tax code, such as when the availability of a tax exemption is conditioned on religious affiliation.” – from Justice Kennedy’s argument.

    The dissenting opinion NFQ quoted:

    ” “Suppose a state desires to reward Jews — by, say, $500 per year — for their religious devotion,” she wrote. Would it matter to taxpayers offended by the practice whether the reward came in the form of a government stipend or a tax credit?

    “Or assume,” she wrote, “a state wishes to subsidize the ownership of crucifixes” in one of three ways. 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?” Justice Kagan asked.

    ————————————–
    Now let’s see how many people see the logical problems with Justice Kagan’s argument given what Kennedy actually wrote.

  11. Aristarchus

     /  April 5, 2011 at 5:00 pm

    Eric, that allowance (that you could sue once you were denied a tax reimbursement) does deal with the first example Kagan gives, and arguably deals with the second, but it doesn’t actually deal with the argument she’s making.

    Consider the analogy to actual, direct government payments. If the government subsidizes the Catholic Church, I as a taxpayer have standing to object. I guess the local Baptist church could also request funding, be denied, and then sue, but they wouldn’t have to. Any taxpayer is harmed by their tax money being spent in an unconstitutional way and has the right to challenge it. This is standard precedent everyone agrees with.

    Now, imagine instead the government says they’ll reimburse all donations to the Catholic Church. That’s identical. Kennedy is saying that I could try to donate to my local Baptist church, be denied reimbursement, and then sue. And that’s fine, but that’s the equivalent of requiring the Baptist church in the above example to request funding. Why the difference in standards?

    You’re right in that it means that the implications of this case aren’t as bad (in many cases it just makes it much harder to find a willing plaintiff and creates more red tape, rather than actually preventing a case being brought), but I still don’t see any actual logic to the decision.

    Furthermore, look at the case in question. No one will be denied reimbursement – anyone is allowed to donate. The objection here arguing that subsidizing all religions still isn’t ok. That’s a perfectly reasonable argument. We could argue over what the right ruling would be. But it seems impossible to me that anyone in Arizona will ever have standing to bring the case. Any time a standing requirement makes it impossible to get the Supreme Court to even consider an issue of constitutionality, that seems like a bad standing requirement to me.

  12. Oh snap, Aristarchus, I go away from my computer for half the day and you’ve totally got my back. Your 4:42 comment in particular made me laugh a lot … and wish that my fourth grade English / Language Arts assessments involved discussions of constitutional law. (Doug, I appreciate your comment too, of course — it’s just that Aristarchus was particularly enthusiastic. :) )

    Eric: I agree with what Aristarchus wrote in his response to you, but I feel compelled to boil it down a bit. You quoted (my emphasis): “Other plaintiffs may demonstrate standing on the ground that they have incurred a cost or been denied a benefit on account of their religion.” But of course there are costs at stake … they’re just marginal to each person, because they’re spread out over the entire taxpaying population. (Everyone else’s taxes will have to be slightly higher to maintain total revenue.) Yet by interpreting tax credits as things that merely leave people’s own money in their pockets, with no impact on anyone else whatsoever, Kennedy makes it impossible to challenge this law.

    I mean, seriously. If I said, “Buy me that $50 concert ticket, and I’ll just forget about the $50 you owe me,” who really paid for the ticket, you or me?

  13. azmarie

     /  April 6, 2011 at 6:15 pm

    Just in case anyone is curious, here is the actual documentation on the tax credit itself:
    http://www.azdor.gov/TaxCredits/SchoolTaxCreditsforIndividuals.aspx

    There is also a link to a document of qualifying organizations; a couple Montessori schools and a shcool for older children/young adults with disabilities are also in the mix of religious schools.

    Also, there is a smaller, but similar tax credit for contributions to public schools or public school extracurricular activities.

  14. I don’t think the reasoning is as bad as it’s being made to sound here. As you note, in general challenges on the basis of the Establishment Clause are considered exceptions to the normal way to challenge the Constitutionality of a measure, in that people who are not actually affected can bring suit. The majority decision says that, in this case, because it’s simply making something tax deductible this case doesn’t qualify for that exception. In order to judge if their logic is wrong, we’d have to know what the reason for granting the exception was. The presumption that you and the dissenting opinion seem to make is that this is done to ensure that people actually can make a challenge against the policy in most cases, but the majority decision points out that at least for tax deductions the normal mechanisms work perfectly well; someone could, for example, challenge a tax break given to one type of newspaper but not to all newspapers under freedom of speech, which may not work for directly funding. So, yes, there are plenty of ways to challenge this sort of tax break (even if that challenge wouldn’t apply to this one).

    So I need, at least, more details on why the exception is made for the Establishment Clause to judge the reasoning here. From the wiki from Flast vs Cohen:

    “The Court developed a two-part test to determine whether the plaintiffs had standing to sue. First, because a taxpayer alleges injury only by virtue of his liability for taxes, the Court held that “a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution.” *479 Id., at 102, 88 S.Ct., at 1954. Second, the Court required the taxpayer to “show that the challenged enactment exceeds specific constitutional limitations upon the exercise of the taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8.” Id., at 102-103, 88 S.Ct., at 1954.” ”

    If these conditions aren’t met, they don’t have standing. A very shallow reading suggests that they may not have met the conditions. So, then, who’s reasoning is bad?

    Note that Kagan’s reasoning in light of Flast v. Cohen is particularly bad, since simple injury is insufficient to grant standing to a taxpayer.

    Also, tax breaks in general — at least in Canada — don’t give you all your money back. All they do is make that portion of your money tax deductible, which means you don’t have to pay tax on that money and so you’d get the tax back, which is normally far less than 100% [grin].

  15. Aristarchus

     /  April 7, 2011 at 9:56 am

    the majority decision points out that at least for tax deductions the normal mechanisms work perfectly well; someone could, for example, challenge a tax break given to one type of newspaper but not to all newspapers under freedom of speech, which may not work for directly funding. So, yes, there are plenty of ways to challenge this sort of tax break (even if that challenge wouldn’t apply to this one).

    I’m confused about what you mean by saying they could challenge a tax break to one type of newspaper under freedom of speech. (First of all, freedom of speech doesn’t ban biased subsidizing of some kinds of newspapers, but that’s beside the point.) How is saying that sort of law should be challenged “under freedom of speech” different from saying this should be challenged “under the establishment clause”? The establishment clause is in no way specific to monetary expenditures – it would apply to any preferential treatment.

    Furthermore, majority decision is wrong about there being other ways to challenge it, and you admit this when you say “even if that challenge wouldn’t apply to this one”. In this case (and you could imagine others) no one will be left with standing. The standing rules don’t come from the Constitution – they come from common law and the court making up rules. That’s fine, but it seems that they’ve obviously done that badly when there is a policy that no one is even allowed to bring a case about.

    If these conditions aren’t met, they don’t have standing. A very shallow reading suggests that they may not have met the conditions. So, then, who’s reasoning is bad?

    You’re right, a very shallow reading would lead to the majority decision. An actually reasonable reading, however, would not. The court has already found that spending to aid religion counts as the sort of spending that is beyond the constitutional limitations mentioned and that it qualifies. So the only question left is whether this is (or is equivalent to) spending. It obviously is. End of story.

    Also, you’re right about tax deductions in general, but in this case (at least, if I’m understanding the New York Times article correctly) it’s a 100% tax rebate of the amount spent.

  16. Aristarchus,

    What I meant by the newspaper example was that under some circumstances if that tax break really did violate the First Amendment they could certainly sue on that grounds using the same methods Kennedy advocated for the religious case. As the original post said, the Establishment Clause allowing people not directly harmed to sue is an EXCEPTION to the normal rules, and so we have to judge the reasoning on whether the purpose for that exception is met here, and you have not, in fact, argued on that basis.

    Even your “it is clearly beyond the constitutional limits” argument doesn’t work because when we are dealing with tax breaks it isn’t clear that tax breaks follow the same rules as explicit spending, and it is almost certainly the case that they don’t. Again, Kagan’s argument about simple injury does not apply in this case, and I haven’t seen anything else specific enough to judge.

    As for why I said it wouldn’t apply in this case, it wouldn’t apply because this is not, in fact, funding religion directly at all. That’s the point that the original post says isn’t easy, and it isn’t easy because the funding of religious schools is a side-effect, not a direct purpose. Is it close enough to count as a violation? I think it doesn’t count, but your mileage may vary.

    However, if a tax break was given only to religious private schools to further religious teaching, that would almost certainly be challengeable by this method, and someone would have to apply for it for a different religious or non-religious purpose, be denied, and then sue.

    So, to continue this discussion, tell me why the Establishment Clause has been considered an exception to the “direct injury” rule in bringing up these suits?

  17. Aristarchus

     /  April 7, 2011 at 11:26 am

    What I meant by the newspaper example was that under some circumstances if that tax break really did violate the First Amendment they could certainly sue on that grounds using the same methods Kennedy advocated for the religious case.

    Huh? That doesn’t make any sense. The grounds Kennedy advocated don’t apply in this case. It’s not that they don’t apply because it doesn’t really violate the First Amendment. The point of standing is to determine whether or not you have the right to ask the court to decide whether or not something violates the First Amendment. The rule for standing can’t be dependent on whether something is a violation.

    You can make arguments about the religious funding being a side effect versus the direct purposes, etc. That’s all reasonable. It depends on the motivation behind passing the law and all sorts of other stuff. But that can’t possibly be relevant to the question of whether someone has standing, because standing is decided before the court gets to that sort of stuff.

    So, to continue this discussion, tell me why the Establishment Clause has been considered an exception to the “direct injury” rule in bringing up these suits?

    Uhh… because having your money taken by the government and then used on programs that are unconstitutional violates your constitutional rights. Paying higher taxes because of such spending is a harm, and so is having the government do things that you are morally opposed to when the constitution forbids such actions. And because unlike government violating the First Amendment by censoring a newspaper, for example, the harm is diffused over society in general rather than focused on a specific actor. As a result, to not count that low level of harm as sufficient for suing would result in no one in the country having standing to sue.

  18. Aristarchus,

    Part of your reply to my example was that it had already been determined that the First Amendment would not apply in those cases. Fine. But if there was a question over whether that tax break was a violation of the FA, what they’d have to do is apply for the break, not get it, and then sue on that basis.

    Now, of course, if they DID apply for it and get it, then they wouldn’t have any standing –because of no personal harm — but then it would be very difficult to argue that there was any violation there at all.

    And that’s why standing would be difficult to grant in this case, because anyone who wanted to fund specific private schools regardless of religious beliefs or the lack thereof would get this break. How, then, could this possibly violate the Establishment Clause if there is no religious criteria involved at all, and no one is harmed EVEN IN THE SLIGHTEST on the basis of their religious beliefs because it is open to all, even the non-religious?

    I disagree, actually, that the court has to settle standing before it settles everything else. I think part of preliminary work for any case includes determining standing AND is there any reason to think that the case has any merit whatsoever. I think this case may well fail the latter … and may fail the latter simply BECAUSE there’s absolutely no way to get standing under the conditions cited. In short, the fact that no one could meet the definition of standing cited in the majority decision in this case implies that there is no real question to consider about the constitutionality of the case; if there was a legitimate question about it, someone could at least be able to claim a standing to ask the question under those guidelines.

    “Uhh… because having your money taken by the government and then used on programs that are unconstitutional violates your constitutional rights. Paying higher taxes because of such spending is a harm, and so is having the government do things that you are morally opposed to when the constitution forbids such actions. ”

    This, then, would apply to ALL constitutional cases, and yet the OP hinted that some exceptions were granted specifically on the basis of the Establishment Clause. So we have two cases here:

    1) The OP is right that this is an exception specific to the Establishment Clause, and so your reply is not valid and I still need the reason why the Establishment Clause is an exception when it is direct funding.

    2) The OP at least stated things a little confusingly, the exception applies to all constitutional challenges, and then we have to ask what would happen if it was a challenge on anything other than on the Establishment Clause, which has also not been provided.

    Note that I’m not making an outright demand for tons of research. My goal is mostly to point out that there’s a lot we need to know before we can call this decision stupid, and Kagan’s reasoning good and an example of getting it right.

    Maybe you all know it, but I certainly don’t (and probably shouldn’t [grin]).

  19. Sorry about the double comment, but I do want to make it clear that I do understand that the big thrust here is the argument that direct funding and a tax break seem to cause the same sort of harm, and so should be treated the same. I’m just not convinced that that is indeed a sufficient argument to claim the same treatment, and don’t know enough about the details to say which side — majority or dissenting — is interpreting it correctly.

    I do think that the “No one could get standing in these specific cases, then!” is a non-starter, though, as perhaps there should be no one who has standing in those specific cases.

  20. Whoa.

    I do think that the “No one could get standing in these specific cases, then!” is a non-starter, though, as perhaps there should be no one who has standing in those specific cases.

    I don’t know if this is a Canada/US issue — I hope it’s not — but this statement is rather scary to me. The Constitution is meaningless if a law can be unconstitutional with no way to challenge it. If the standing requirements prohibit all challenges, then they allow constitutional violations to happen (if they are happening), and would therefore I should think be unconstitutional themselves.

    I’m no legal scholar, of course. I know there are a few lawyers who read this blog, and I’d appreciate their insights to clarify the precedent here. It’s certainly possible that I scrambled something in my initial explanation of how the standing requirements work. I alluded to a general objection to standing, in my post — it seems to me that having unconstitutional laws on the books is bad enough, and harms society at large enough, that anyone should be able to challenge the constitutionality of a law even if they are not directly harmed by it. Of course, that’s not how it works, and the actual rules governing standing are (as Aristarchus said) piecemeal common law and precedent, so sometimes they don’t make broader philosophical sense.

  21. NFQ,

    Well, to clarify, my point was more that in some cases if you couldn’t find someone with standing to pursue the case it pretty much means that there simply couldn’t be a constitutional violation. Basically, I’d say that in at least some cases it would be the case that if no one could challenge the law, any such challenge would obviously fail because it couldn’t be unconstitutional without someone being able to meet the standards required for standing.

    Here, for me it seems that in almost all cases where this sort of tax break could be unconstitutional you’d be able to find someone who could apply for it, get rejected, and be able to sue on that grounds. This wouldn’t apply to direct funding since that doesn’t always follow rules or have formal criteria and so you might not be able to find one with a similar enough case to be comparable in the right way to prove similar harm, so I’d agree with that at least for the Establishment Clause. But since any tax break must be formally written into the rules, that wouldn’t apply to tax breaks. The only exception I can think of might be “disproportionality”, where one identifiable group is harmed/benefited more by a tax exemption or the lack of a tax exemption than another. This is a valid criteria in Canada, but I don’t know if that applies in the U.S., and I’m not sure if you can actually sue on the basis of not getting a break even in Canada. This case might be a case of disproportionality, but that would have to be due to some sort of legal factor, not just that, say, religious people care more about religious education than others do.

  22. Well, sure. I understand what you’re getting at. The question, though, is: are people unable to get standing because they haven’t been harmed, or because the standing rules define harm too narrowly? Are we turning away people who got punched in the stomach, telling them that since they didn’t get decapitated they have no real complaint?

    The Supreme Court is supposed to check legislation and the actions of the executive branch in order to make sure that everybody is following the Constitution. In a very real sense, then, if the Constitution isn’t being followed, the country as a whole is being harmed. People aren’t playing by the rules we agreed upon, and that’s bad for the preservation of an orderly society. If there happens to be people who were directly harmed, it probably makes logistical sense for them to be plaintiffs in the suit, but … if you have to be wrongly imprisoned, physically injured, etc. in order to demonstrate standing, then the standing requirements are too narrow.

  23. NFQ,

    At this point, I think the debate is more over standing in general than over the specific case, and it seems that you might at least be sympathetic to an idea that sometimes not being able to find someone with standing would mean that there is no violation of the constitution. So there may not be much more to say.

    I do, however, lean towards the side that if it is possible to have a valid complaint based on harm for a constitutional violation that a court must insist that someone who is in fact actually harmed and so has a valid complaint must come forward. After all, you need specific cases with details and testimony to have any sort of argument in a court of law, and I don’t see any reason to toss that part out. I do agree that if a law could be unconstitutional without having anyone that could meet a reasonable standard of standing, then an exception should be made. But I think those are likely to be few and far between.

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