High Court says taxpayers in the case do not have the right to bring Establishment Clause suit
FOR IMMEDIATE RELEASE
Contact: Jeff Huett | Phone: 202-544-4226 | Cell: 202-680-4127
Cherilyn Crowe | Phone: 202-544-4226 | Cell: 615-519-0620
April 4, 2011
WASHINGTON – A divided U.S. Supreme Court has ruled against an Establishment Clause challenge to an Arizona tax credit program, holding that the plaintiffs lacked standing to sue. The tax credit applies to donations to “school tuition organizations” that provide scholarships to students who attend private schools — including private religious schools.
In a 5-4 decision in the case of Arizona Christian School Tuition Organization v. Winn, et al., the High Court ruled that the plaintiffs do not have standing because they are challenging “a tax credit as opposed to a governmental expenditure.” The majority opinion, written by Associate Justice Anthony Kennedy, found that the injury to the plaintiffs was too speculative, making it different from the circumstance where taxpayer standing is allowed.
In Flast v. Cohen (1968) the Court found a narrow exception to the general rule against taxpayer standing. Flast recognized taxpayer standing when the government used its taxing and spending power in violation of the Establishment Clause. Standing has been a significant issue in Establishment Clause cases in recent years, including in Hein v. Freedom from Religion Foundation (2007), a case that challenged aspects of the Bush administration’s Office of Faith-based and Community Initiatives.
The Arizona program allows any individual to direct up to $500 of his or her state income tax bill to a state tuition organization, which then provides private school scholarships. Plaintiffs alleged that the program operates unconstitutionally, primarily because many of the participating tuition organizations award scholarships only to religious schools.
The dissent, in an opinion by Associate Justice Elena Kagan, called the majority’s rule an end-run of Flast. “From now on, the government need follow just one simple rule – subsidize through the tax system – to preclude taxpayer challenges to state funding of religion.”
“This is a disappointing decision,” said BJC General Counsel K. Hollyn Hollman. “A state legislature should not be able to avoid a legal challenge by simply using an alternative tax mechanism. That denies citizens the right to fight for strong protections against a governmental establishment of religion.”
The BJC and others joined a brief filed by Americans United for Separation of Church and State asking the Court to protect the right of taxpaying citizens to bring the suit. While the constitutionality of the tax credit program requires a distinct analysis incorporating several factors, the brief says that, for purposes of taxpayer standing, tax credits have the same economic impact on the government and should be treated the same as legislative expenditures.
The Baptist Joint Committee is a 75-year-old, Washington, D.C.-based religious liberty organization that works to defend and extend God-given religious liberty for all, bringing a uniquely Baptist witness to the principle that religion must be freely exercised, neither advanced nor inhibited by government.
