Blocking Courts’ Ability to Invalidate Unconstitutional Policy

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.