Written by Don Byrd
The Supreme Court today ruled that taxpayers in Arizona have no standing to challenge that state’s crafty school voucher scheme. Offering tax credits toward private school tuition, Arizona’s program send public money primarily to religious institutions. Many of those schools, according to the plaintiffs in the case, discriminate on the basis of religion in selecting students. Ultimately, that was a church-state controversy the Supreme Court didn’t need to reach, after deciding the plaintiffs in Arizona Christian School Tuition Organization v. Winn had no right to sue in the first place.
In her dissent Justice Elena Kagan said the opinion does great damage to the taxpayer standing doctrine when it comes to church-state violations.
For almost half a century, litigants like the Plaintiffs have obtained judicial review of claims that the government has used its taxing and spending power in violation of the Establishment Clause. Beginning in Flast v. Cohen, and continuing in case after case for over four decades, this Court and others have exercised jurisdiction to decide taxpayer-initiated challenges not materially different from this one. Not every suit has succeeded on the merits, or should have. But every taxpayer-plaintiff has had her day in court to contest the government’s financing of religious activity.
Today, the Court breaks from this precedent by refusing to hear taxpayers’ claims that the government has unconstitutionally subsidized religion through its tax system. These litigants lack standing, the majority holds, because the funding of religion they challenge comes from a tax credit, rather than an appropriation….
This novel distinction in standing law between appropriations and tax expenditures has as little basis in principle as it has in our precedent. Cash grants and targeted tax breaks are means of accomplishing the same government objective—to provide financial support to select individuals or organizations. Taxpayers who oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other. Either way, the government has financed the religious activity. And so either way, taxpayers should be able to challenge the subsidy.
Still worse, the Court’s arbitrary distinction threatens to eliminate all occasions for a taxpayer to contest the government’s monetary support of religion. Precisely because appropriations and tax breaks can achieve identical objectives, the government can easily substitute one for the other. Today’s opinion thus enables the government to end-run Flast’s guarantee of access to the Judiciary. 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.
And that result—the effective demise of taxpayer standing—will diminish the Establishment Clause’s force and meaning. Sometimes, no one other than taxpayers has suffered the injury necessary to challenge government sponsorship of religion. Today’s holding therefore will prevent federal courts from determining whether some subsidies to sectarian organizations comport with our Constitution’s guarantee of religious neutrality.
More to come.
