Arizona Christian School Tuition Organization v. Winn

  • April 7, 2011

    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.  

  • November 3, 2010
    Guest Post

    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.