By Alex J. Luchenitser, Senior Litigation Counsel for Americans United for Separation of Church and State
This morning I attended the Supreme Court argument in Arizona Christian School Tuition Organization v. Winn, a case where a group of taxpayers are challenging an Arizona tax-credit program that primarily benefits religious schools. The taxpayers allege that the program violates the separation of church and state.
The first lawyer to argue in support of the program was Neal Katyal, the Acting Solicitor General of the United States. On behalf of the Department of Justice, Katyal asserted that taxpayers have no right to challenge the Arizona program, or, for that matter, any other tax credit or tax deduction that benefits religious institutions.
The Supreme Court has decided the merits of a number of cases where taxpayers challenged tax exemptions and deductions that aided religious groups - implicitly concluding that the taxpayers had the right to bring the challenges. Yet Katyal expressly urged the Supreme Court to overrule all of those cases, contending that a tax credit does not involve the spending of public money.
Even some of the more conservative justices on the Supreme Court showed no interest in the radical departure from precedent advocated by the Justice Department. Justice Anthony Kennedy expressed discomfort with the suggestion that the Supreme Court's long line of tax exemption decisions be overruled. And Chief Justice John Roberts, who generally takes a narrow view of litigants' rights to sue, displayed no sympathy for Katyal's argument, instead referring to the challenged tax-credit funding as "state money."
The Justice Department's position in this case is quite troubling: if it is accepted, the federal government and states will be able to circumvent constitutional restrictions on public funding of religious institutions by funneling such funding through tax credits and exemptions, because taxpayers would then have no right to bring suit against the funding. Indeed, Katyal frankly admitted during this morning's argument that no one would have the right to challenge the Arizona program under the Justice Department's view.
What is even more troubling is that the federal government is not a party to this case, and so did not need to become involved at all. The Justice Department decided not only to participate in defense of the Arizona program, however, but to step out on a limb by focusing its advocacy toward a drastic narrowing of taxpayers' rights to sue. One wonders how and why the Obama Justice Department became so interested in closing the courthouse door on taxpayers who seek to defend the separation of church and state.