The Supreme Court majority this week took a significant swipe at the ability of courts to invalidate government policy that advances religious work, writes one of the nation’s leading constitutional law experts in a piece for The Huffington Post.
Taking a look at the 5-4 opinion in Arizona Christian School Tuition Organization v. Winn, Geoffrey R. Stone, a distinguished law professor at the University of Chicago and chair of the ACS Board, says the majority decision, authored by the Court’s conservative wing, “carved a large hole out of the Establishment Clause of the First Amendment.”
Stone (pictured at an ACS National Convention) centers on the Supreme Court’s 1968 opinion in Flast v. Cohen, in which the Court found that taxpayers have standing to bring lawsuits challenging government action as a violation of the First Amendment’s Establishment Clause.
He writes that the high court’s majority in a 2007 and in this week’s opinion has turned away from Flast, in the process making it almost impossible for courts to invalidate unconstitutional government support of religion. Citing Justice Anthony Kennedy’s majority opinion in the Arizona tax credit case, Stone says Kennedy concluded “that taxpayers had no standing to challenge this program because it involved tax credits rather than government expenditures. In other words, if the government had given the funds directly to the organizations, the taxpayers would have standing, but because the government instead gave the funds to individuals to reimburse them for giving money to the organizations, the taxpayers did not have standing.”
Stone continues:
As Justice Elena Kagan explained in a powerful dissenting opinion, joined by Justice Breyer, Ginsburg and Sotomayor, this distinction "has as little basis in principle as it has in our precedent." Indeed, the conservatives' new approach "enables the government to end-run Flast's guarantee of access to the Judiciary." As Kagan observed, under the conservatives' analysis, a state that wants "to subsidize the ownership of crucifixes" can now simply grant a tax credit to individuals who buy crucifixes. That program would effectively be insulated from constitutional challenge, not because it is constitutional, but because no one would be permitted to raise the question.
For more analysis of the Arizona case, see this ACS guest blog post from Alex Luchenitser, a lawyer for Americans United for Separation of Church and State.
"standing" barriers defeat citizenry's 1st A right to petition
I have sued local governmental entitles for tax-squandering illegality in NYS, as a citizen-taxpayer, but the cases have been tossed on "standing" grounds. I am about to seek review by the NYS Court of Appeal, but believe it will not hear the case unless I can convince it of the importance of citizens being allowed to challenge governmental illegality (whether church/state separation or any other constitutional or substantial legal grounds).
My central pitch to the CoA will be that denying taxpayer standing is a denial of the citizen's 1st A right to petition, at least when the citizen has a legitimate entitlement to redress (e.g., economic injury, but also injury by dishonest, illegal or unconstitutional actions (e.g. support of church by state)).
In other words, denial of standing is much larger than the church/state issue, as it implicates separation of powers, the Rule of Law and democracy itself if people cannot ask the judiciary to adjudicate lawlessness, to apply a "check and balance" to the other branches.
If anyone has any helpful thoughts (or cases/law review articles, etc.), I could use this ASAP. Thank you.
/s/ Mike Diederich, Jr. 845-942-0795 help@DiederichLaw. com
ACSTO v. Winn - Legalized Money Laundering
Months ago, I was on a panel at Catholic University discussing ACSTO v. Winn. I called Arizona's tax credit scheme of funding STOs a money laundering scheme because Justice Kennedy, et al. have ruled that government money (because its 100% in lieu of a taxpayer's tax liability) to be funneled through STOs to fund private religious education. In so doing, Arizona turns tainted money (government money expended in violation of the Establishment Clause) into good money by denying taxpayers standing to challenge the Arizona statute.
Let's be clear about both the basis for Justice Kennedy's opinion and its why.
Kennedy concluded that tax credits do not qualify for the Flast v. Cohen (1968) exception. This is a miss-characterization of Flast. Flast held that a general taxpayer -- a taxpayer who was not directly harmed by the government act being challenged -- had standing to challenge the act on Establishment Clause grounds if the act was pursuant to Congress's tax and spending power. It is critical to note that the constitutional authority for both appropriations (general taxpayers have standing under Flast) and tax credits (general taxpayers do NOT have standing under ACSTO) is Congress's Article I, sec. 8 tax and spend powers. Stone's blog quotes Justice Kagan's dissenting opinion saying that the distinction is irrational.
Thus, Justice Kennedy's distinction is arbitrary and capricious because appropriations and tax credits are of the same cloth. Naturally, an erroneous distinction leads to an erroneous decision.
As to the why, Chief Justice Roberts and Justices Scalia, Thomas, Kennedy and Alito form a Christian Right dogmatic block on the Supreme Court. The are doing their best to use the judiciary to maintain Christian dominion in the U.S. notwithstanding the constitutional prohibition to the contrary. Salazar v. Buono is another example of the Christian Right block on the Court ignoring precedent to obtain a political objective -- in Buono to preserve of a Christian cross in the Mojave National Preserve.
Post new comment