Issue of “standing” is once again before the U.S. Supreme Court

Contact: Jeff Huett | Phone: 202-544-4226 | Cell: 202-680-4127
Cherilyn Crowe | Phone: 202-544-4226 | Cell: 615-519-0620

November 3, 2010

WASHINGTON — In a case heard today, the Baptist Joint Committee for Religious Liberty says the U.S. Supreme Court should protect the right of taxpaying citizens to sue over an alleged violation of the U.S. Constitution’s prohibition of a government establishment of religion. The BJC joined a friend-of-the-court brief in the case.

The High Court heard oral arguments in Arizona Christian School Tuition Organization v. Winn, et al., and the Court’s decision could impact a citizen’s ability to bring suit, which is known in legal terms as “standing.”

“Standing” has been a significant issue in Establishment Clause cases in recent years.

Click hereto download a pdf of the brief joined by the Baptist Joint Committee in this case.

In its 2007 decision in Hein v. Freedom from Religion Foundation, a case that challenged aspects of the Bush administration’s Office of Faith-based and Community Initiatives, the Court said taxpayers do not have standing to sue for alleged Establishment Clause violations when federal money is not disbursed through a specific legislative enactment. In the 2010 case of Salazar v. Buono (regarding the display of a cross on federal land in the Mojave National Preserve), the government advanced an argument that would restrict the right to sue in religious display cases, but the Court did not rule on the issue of standing.

Plaintiff standing is again before the High Court in Winn.

At issue in Winn is whether an Arizona tax credit program violates the Establishment Clause. The program allows taxpayers to receive a credit for donations to “school tuition organizations” that provide scholarships to students who attend private schools — including private religious schools. The tax credit program, first enacted in 1997, sets regulations for the participating school tuition organizations, and has continued to be revised during the course of litigation. Currently, it 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 allege that the program operates unconstitutionally, primarily because many of the participating tuition organizations award scholarships only to religious schools.

The brief joined by the BJC solely asks the Court to protect the right of taxpaying citizens to bring the suit. In Winn, the plaintiffs are Arizona taxpayers who believe tax dollars are unconstitutionally funding religion through the government program. The defendants assert that the plaintiffs do not have the taxpayer standing needed to file this suit because they claim the funds at issue are private, charitable donations disbursed through tax credits — not direct legislative expenditures. 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 argument to deny these taxpaying citizens the right to sue is completely off-base,” said BJC General Counsel K. Hollyn Hollman. “A state legislature should not be able to avoid a legal challenge to a potentially unconstitutional program by simply using an alternative tax mechanism. That denies citizens the right to fight for strong protections against a governmental establishment of religion.”

The brief was filed by Americans United for Separation of Church and State and joined by the BJC, the American Jewish Committee and other organizations.


The Baptist Joint Committee is a 74-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.