Freethought Today · Vol. 28 No. 3 April 2011

Published by the Freedom From Religion Foundation, Inc.

FFRF statement

We really can’t ‘Winn’ with this Supreme Court

In a 5-4 decision, the U.S. Supreme Court ruled April 4 that taxpayers do not have standing to challenge an Arizona law that provides for taxpayer-subsidized religious instruction. Arizona offers a dollar-for-dollar tax credit (up to $500) to citizens who contribute to groups that offer scholarships to children attending private schools. This tax credit overwhelmingly is used to support private religious instruction, which FFRF contends violates the Establishment Clause. The tax credits are estimated to divert over $50 million per year from the state to scholarship organizations.

FFRF is very disappointed in the Court’s continuing efforts to nullify the Establishment Clause by closing the courthouse doors to challenges by citizens. The Establishment Clause was very much intended to prohibit financial support for religion — including government support for religious schooling. The Supreme Court now tries to distinguish between government appropriations to religion and government tax credits for religion. This is an attempted distinction without a meaningful difference. The notion that economic benefits given to religion are beyond the purview of constitutional accountability ignores history and logic. Government financial support for religion is, and has been, integral to the establishment of religion.

Justice Kennedy, writing for the majority, said:

“[T]ax credits and governmental expenditures do not both implicate individual taxpayers in sectarian activities. A dissenter whose tax dollars are ‘extracted and spent’ knows that he has in some small measure been made to contribute to an establishment in violation of conscience. . . . When the government declines to impose a tax, by contrast, there is no such connection between dissenting taxpayer and alleged establishment.”

Justice Kagan, writing for the dissent, criticizes the closing of the courthouse door:

“For almost half a century, litigants like the Plaintiffs have obtained judicial review of claims that the government has used its taxing and spending power in violation of the Establishment Clause. . . . Not every suit has succeeded on the merits, or should have. But every taxpayer-plaintiff has had her day in court to contest the government’s financing of religious activity.”

Kagan characterized Kennedy’s opinion as creating a “novel distinction” between appropriations and tax expenditures. She said “this distinction finds no support in case law, and just as little in reason.” Kagan notes:

“Taxpayers who oppose state aid of religion have equal reason to protest whether the aid flows from the one form of subsidy or the other. Either way, the government has financed the religious activity. And so either way, taxpayers should be able to challenge the subsidy.”

Kagan points out problematic applications of the Court’s holding:

“Suppose a State desires to reward Jews — by, say, $500 per year — for their religious devotion. Should the nature of taxpayers’ concern vary if the State allows Jews to claim the aid on their tax returns, in lieu of receiving an annual stipend?”

The dissent highlights Kennedy’s misunderstanding of James Madison’s famous “Memorial and Remonstrance,” wherein Madison, “the leading architect of the religion clauses,” opposed a Virginia tax levy supporting religious instruction. Kagan said:

“The Virginia tax in fact would not have extracted any monies (not even ‘three pence’) from unwilling citizens, as the Court now requires. The plan allowed conscientious objectors to opt out of subsidizing religion by contributing their assessment to an alternative fund for the construction and maintenance of county schools.”

Nor does the Arizona tax credit force any particular taxpayer to pay the subsidy directly, but it is still a government subsidy. Kagan remarks, “By relying on the self-same aspect of the Arizona scheme to deny the Plaintiffs’ claim of injury, the majority betrays Madison’s vision.”

“We see this as further eroding the Establishment Clause, and even just the right to bring lawsuits to remedy extreme violations,” said Annie Laurie Gaylor, FFRF co-president.

FFRF is a non-profit, educational organization. All dues and donations are deductible for income-tax purposes.

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