High Court takes dim view of church-state barrier

April 4, 2011

The Supreme Court has rejected a challenge to an Arizona school
tuition credit program that critics contend has principally benefited
religious institutions. The 5–4 decision, combined with a 2007 ruling
rejecting a similar challenge to the Bush administration's faith-based
office, seems to solidify the court's skepticism toward attempts to
derail government funding of religious programs.

The decision on
April 4 was hailed by supporters of religiously based education and
makes it tougher for taxpayers to challenge such scholarship programs by
claiming that they violate church-state separation.

The Arizona
tax credit, enacted in 1997, allows participants to receive
dollar­-for-dollar tax credits for donations to so-called "student
tuition organizations," or STOs, of up to $500 for individuals and
$1,000 for married couples.

The Arizona Department of Revenue
reported that two STOs—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.

documents showed that the total percentage of religiously affiliated
STOs was 67 percent that year, down from 94 percent in 1998.

Anthony Kennedy, writing for the court's conservative majority, said
the taxpayers who filed suit lacked legal standing to challenge the
program because they incorrectly viewed the tax credit as a form of
government spending.

"While the state, at the outset, affords the
opportunity to create and contribute to an STO, the tax credit system is
implemented by private action and with no state intervention," he

The decision echoed the court's 2007 ruling in a case filed
against the White House office by an atheist group; in that case too,
the justices said challengers did not have standing. "In an era of
frequent litigation, . . . courts must be more careful to insist on the
formal rules of standing, not less so," Kennedy concluded in the Arizona

In a strongly worded dissent, the court's freshman
member, Justice Elena Kagan, argued that taxpayer standing should not be
based on whether the money subsidizing religion comes through a tax
break or a direct grant.

"Either way, the government has financed
the religious activity," she said. "And so either way, taxpayers should
be able to challenge the subsidy." She was joined in her dissent by
Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.
Kennedy was joined by Chief Justice John Roberts and Justices Antonin
Scalia, Clarence Thomas and Samuel Alito.

The Alliance Defense
Fund, which argued for the Arizona Christian School Tuition
Organization, hailed the "national precedent" that will limit similar
suits in federal courts. "The court's reasoning is sound," said ADF
senior counsel David Cortman. "The government does not own 100 percent
of every American's paycheck. The donations are private money, not
government money."

Americans United for Separation of Church and
State agreed that the decision could prevent federal court action on the
issue in the future but vowed to continue the fight in state courts.
"This is not a good day for the wall of separation," said Barry Lynn,
executive director of Americans United. "A few more bricks are out of

Lynn called the twin decisions "disturbing roadblocks to
litigation" set up by the high court. "Certainly it's one more hurdle to
jump, and these hurdles are getting pretty big," he said.

decision leaves in-depth court review of the merits of voucher programs
to state courts, said Ira Lupu, a church-state expert at George
Washing­ton University Law School. There, lawyers could argue whether
such programs violate state or federal constitutions because state
courts don't follow the same rules on legal standing as federal courts.
"The questions about the validity of the Arizona program remain
unresolved," he said.  —RNS