Supreme Court wrestles over religious scholarship program

November 3, 2010

WASHINGTON (RNS) Is a state law that allows tax credits for donations to
scholarship programs unconstitutional if most of the recipients attend
religious schools?

That's the question the U.S. Supreme Court wrestled with Wednesday
(Nov. 3), centered around an Arizona program where two of the largest
scholarship groups require recipients to attend Catholic or evangelical
schools.

Lawyers representing Arizona and the U.S. Department of Justice
argued that the decision on where to use the scholarships is made by
parents and students, not the government, and does not violate the First
Amendment.

"Arizona's tuition tax credit does not violate the Establishment
Clause because it's a neutral law that results in scholarship programs
of private choice," said Paula Bickett, Arizona's chief counsel for
civil appeals.

The tax credit, enacted in 1997, is one of some two dozen tax
credits offered to Arizona taxpayers. Participants receive
dollar-for-dollar tax credits for donations to student tuition
organizations, or STOs, of up to $500 for individuals and $1,000 for
married couples.

Last year, the program distributed a total of $52 million in
scholarships.

Acting Solicitor General Neal Katyal told the court that taxpayers
who oppose the program should not have legal standing to sue because
"not a cent" of their money funds religion.

But Paul Bender, representing the American Civil Liberties Union of
Arizona, said the program violates the First Amendment's Establishment
Clause because some STOs require the scholarship money be used at
religious schools.

"The STOs are a conduit of government funds to the parents," he
said.

The U.S. 9th Circuit Court of Appeals ruled last year that the
critics of the program had the legal standing to question whether the
program was unconstitutional.

The arguments, involving two consolidated cases, prompted
comparisons with a 2002 Supreme Court ruling, Zelman v. Simmons-Harris,
which ruled that a Cleveland school voucher plan that could be used to
pay tuition at either religious or secular schools was constitutional.

Justice Elena Kagan asked Pickett why Arizona opted for such a
program rather than vouchers. Pickett said that unlike Ohio, where the
Zelman case was centered, Arizona prohibits direct aid to private
schools.

Kagan then asked why a state would set up an intermediary
organization "that can say, sorry, if you are a Catholic you don't get
scholarships out of our STO."

Bickett responded that such decisions are not made by the state.
"It's private organizations," she said. "And anyone can set up a school
tuition organization."

The ACLU's Bender, answering a query from Justice Antonin Scalia on
why he thought the program runs afoul of the First Amendment, said "the
Constitution prohibits organizations that distribute government funds as
part of a government spending program to do it on the basis of
religion."

But Scalia appeared skeptical that the case actually involves state
money.

"That's a great leap to say that it's government funds -- that any
money the government doesn't take from me because it gives me a
deduction is government money," Scalia said.

A report from the Arizona Department of Revenue found that two
religious organizations -- the Arizona Christian School Tuition
Organization and the Catholic School Tuition Organization of the Diocese
of Phoenix -- received 38 percent of the total donations in 2009.

The Alliance Defense Fund, which is representing the Arizona
Christian School Tuition Organization in the case, said in a court
filing that the percentage of religiously affiliated STOs in the program
has dropped from 94 percent in 1998 to 67 percent in 2009.

Six states -- Florida, Georgia, Indiana, Iowa, Pennsylvania and
Rhode Island -- have programs similar to Arizona's, according to an
amicus brief of 13 states that argued that the Arizona program is
neutral and neither advances nor inhibits religion.

Other supporters include the National Association of Evangelicals,
the Christian Educators Association International and the American
Center for Law and Justice, founded by religious broadcaster Pat
Robertson. Opponents include the American Humanist Association, which
joined in a brief with several atheist and secular groups.

The arguments marked the second time in as many days that the high
court addressed a case related to religious issues. On Tuesday, it heard
arguments in Sossamon v. Texas, which questions whether states can be
sued for damages under the Religious Land Use and Institutionalized
Persons Act.