Americans United for Separation of Church and State

by Jeremy Leaming

University of Notre Dame’s religious leader the Rev. John Jenkins claims the string of federal lawsuits challenging the Obama administration’s health care policy on birth control is all about protecting religious freedom. But in reality the lawsuits are on wobbly legal ground, and Jenkins’ assertion about protecting a cherished First Amendment freedom is tired.    

Like a federal lawsuit lodged earlier this year on behalf of Ave Maria University, a Catholic institution in Florida, the new lawsuits argue that a portion of the health care reform law requiring insurance companies to provide birth control to employees, including ones at religious institutions, is a serious affront to the religious institutions’ free exercise of religion rights.

The Affordable Care Act, however, does not single out religious entities for unheard of treatment. Instead it is a law of general applicability, meaning it covers secular and religious institutions. There are all kinds of laws of general applicability, which may offend religious beliefs, but do not amount to a violation of the free exercise of religion.

Nonetheless, the religious groups are apparently counting on judicial activism from some of 12 federal courts where their lawsuits have been lodged. In a press release about his school’s lawsuit, Jenkins stuck to the religious liberty canard, saying it “is about the freedom of religious organizations to live its mission ….”

Irin Carmon, reporting for Salon on the religious groups’ legal actions, agrees with Angela Bonavoglia’s assertion that “this struggle is part of a larger crackdown by conservative hierarchy against liberal elements within it – chiefly, women, including nuns.”

Others such as the public interest group Americans United for Separation of Church and State say the Catholic organizations are looking to the courts to help them revive faltering church doctrine.

By Alex J. Luchenitser, Senior Litigation Counsel for Americans United for Separation of Church and State

This morning, in Arizona Christian School Tuition Organization v. Winn, the U.S. Supreme Court held by a 5-4 vote that taxpayers have no right to challenge tax credits, exemptions, or deductions that support religious organizations. This ruling is the latest in a series of Supreme Court decisions that have progressively made it more difficult for taxpayers to enforce constitutional restrictions on public funding of religion.

The Supreme Court concluded today that even when the government uses its tax system to subsidize religious activity, taxpayers cannot complain in court if the subsidy is not in the form of money taken directly out of taxpayers’ wallets. One need not have a very active imagination to see how easily this ruling will allow government bodies to circumvent the constitutional principle that the government should not provide financial support to religious institutions.

For example, instead of directly appropriating a sum of money to a group of churches for improvements to their sanctuaries, Congress could enact a tax credit for contributions to the same churches. The end result would be the same under either approach. But under today’s ruling, no taxpayer could challenge the latter scheme.

Illustrating the current Supreme Court’s determination to close the courthouse door on taxpayers who wish to defend the separation of church and state, today’s decision effectively overrules at least five prior Supreme Court cases that had assumed that taxpayers do have the right to challenge tax credits and deductions that aid religious groups. Indeed, the Supreme Court even abandoned today a prior decision that had concluded that taxpayers have the right to challenge the provision of tax-exempt bonds to religious organizations.

Another quite troubling aspect of today’s ruling is that it was wholeheartedly supported by the Obama Justice Department. When the case was argued last November, the Justice Department asked the Supreme Court to do exactly what it did this morning.

All is not lost, for today’s ruling contains two silver linings.