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.