SCOTUS hears cases that may kill Establishment Clause lawsuits and make way for theocracy

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The Supreme Court heard oral arguments on Wednesday on two cases that have the potential to further ease the way for theocracy in the United States.

At stake is whether or not citizens can sue when tax credits are used to fund religious education and whether or not taxpayers have the right to sue to stop it. “The Obama administration says taxpayers have no right to sue if a state uses tax funds for parochial school tuitions,” the Los Angeles Times reports.

The ‘ability to sue over church-state claims at stake‘, The Associated Baptist Press reports. A 5-4 conservative Roberts Court decision “has the potential to change the way the law handles cases dealing with government endorsement of religion.”

If the court sides with the state, one consequence could be a significant reduction in taxpayers’ ability to sue governments over violations of the First Amendment clause that says “Congress shall make no law respecting an establishment of religion.”

The Obama administration’s position in Arizona Christian School Tuition Organization v. Winn and Garriott v. Winn surprised the court’s more liberal justices, the LA Times reports.

Acting U.S. Solicitor Gen. Neal Katyal joined Arizona in defending the law but went further, arguing that no one had legal standing to challenge it in court. Since no citizen could prove that “a cent … of his money goes to fund religion,” no one had a right to sue over the alleged unconstitutional subsidy for religion, Katyal said.

Justices Ruth Bader Ginsburg and Stephen G. Breyer quickly objected. If no one can sue, there would be no way to enforce the 1st Amendment’s ban on laws that foster “an establishment of religion,” they said.

From the court transcript:

JUSTICE BREYER: Then is it constitutional if we get a new system? Here’s what the system will be: The taxpayers who are religious will be able to check a box and the check that they send to the IRS — it’s a possible system — what happens is that that check is cashed by an official and the cash is given to the local priest to say prayers for the individual who contributed the money. And in your view, there is no one who could challenge that?

GENERAL KATYAL: Well, let me say two things about that. First is: That is not all that different, Justice Breyer, than what we have today with 501(c)(3) deductions.

JUSTICE BREYER: The difference is, of course, that in the one case it’s a deduction and in this case you are paying it 100 percent with money that would otherwise go into the coffer. I understand that. But I am interested in, conceptually, does the government think that there is no one who could challenge that?

GENERAL KATYAL: I don’t think that any taxpayer could challenge that. That is, depending on the hypothetical, Justice Breyer, I’m not sure if the government is specifying which religious organizations might be eligible for the check box. But if the government is doing something that is underinclusive and only giving tax credits to one set of religious organizations, that’s a Texas Monthly problem, as this Court –

JUSTICE BREYER: If you go back into history, it could have been the case that the — as long as they were fair to every religion, the first Congress could have funded prayers throughout the nation in churches for anyone to go and pray and that would not have violated the Establishment Clause, or if it had, nobody could have challenged it.

JUSTICE GINSBURG: Counsel, does anyone have standing, in your view, to challenge this scheme?

GENERAL KATYAL: The way this scheme is set up, our answer is no. And I think that accords with this Court’s general reluctance to confer taxpayer standing in this area.

“Justice Elena Kagan, Katyal’s boss until she joined the court in August,  also objected to his argument,” the LA Times reports.

She ticked off a series of landmark rulings that rejected state aid to parochial schools. “So, if you are right, the court was without authority to decide” those cases, “but somehow nobody on the court recognized that fact?” she asked.

“My answer to you is yes,” he said.

At this, Justice Anthony M. Kennedy, a key swing vote, called for a pause. “I just want to make sure I heard your answer. Your answer is yes? Those cases were wrongly decided?”

Katyal said the court might have the right to say the states had wrongly subsidized religion, but he insisted no taxpayer had standing to sue.

Arizona allows for each state taxpayer to donate up to $500 to private tuition organizations and reduce their taxes by that amount as a tax credit. These private tuition organizations collect about $55 million a year and award private school scholarships to religious schools.

Lawyer Paul Bender is representing taxpayers who oppose the Arizona tax credit, the Washington Post reports. The taxpayers he represents say Arizona’s tax credit “effectively forces parents who want the scholarships to send their children to religious schools.”

“Taxpayers generally are not allowed to sue over government spending decisions. But the court in Flast v. Cohen in 1968 made an exception for spending alleged to violate the Establishment Clause.” Katyal, arguing on behalf of the Obama administration, believes these taxpayers have no legal standing to sue and the money in the tax credit is not state money.

Bender argued a tax credit is different from other charitable donations that give the donor a tax deduction. “He contended that tax credits, unlike tax deductions, come right off a taxpayers due bill. In other words, that without the credits, the money would go to the state government,” NPR reports.

MR. BENDER: Because when a taxpayer makes a charitable deduction, that charitable deduction is made from the taxpayer’s money. At the time the taxpayer makes that deduction, the taxpayer can do anything he wants with that money.

That’s not true of this tax credit. At the time this tax credit is taken, the taxpayer owes the government, let’s say, $5,000 in State income taxes. You’ve got to pay that $5,000. You can’t keep it. It’s not your money. You can’t keep it. It’s not that all of your money is the government’s money; it’s that this $5,000 that you owe the government as income taxes is the government’s money.

“That assertion was like waving a red flag in front of the court’s conservatives. Scalia, Roberts, Alito and Kennedy erupted in a chorus of dispute,” NPR notes.

From the court transcript:

JUSTICE SCALIA: That’s a great leap to say that it’s government funds, that any money the government doesn’t take from me because it gives me a deduction is government money. I mean, that’s the first leap you make…

JUSTICE KENNEDY: … I must say, I have some difficulty that any money that the government doesn’t take from me is still the government’s money.

JUSTICE ALITO: … You think that all the money belongs to the government –


JUSTICE ALITO: – except to the extent that it deigns to allow private people to keep some of it.

MR. BENDER: I do not.

JUSTICE ALITO: It doesn’t take it by taxes.


NPR adds that Bender’s “contention seemed to fall on deaf ears.” Later on Chief Justice Roberts challenged again Bender’s argument.

CHIEF JUSTICE ROBERTS: So the only difference is that Arizona set up this system where you get a tax credit instead of a tax deduction?

MR. BENDER: Of course.

After this exchange  Justice Alito went into a diatribe about a hypothetical 90 percent top marginal income tax rate.

Christian conservatives see the possibility of reversing long standing legal precedence. “Several conservative religious groups have filed friend-of-the-court briefs in favor of Arizona in the case,” Associated Baptist Press reports. Meanwhile, liberal court watchers are disturbed by the Obama administration’s stand according to the LA Times.

“The brief they filed is the same that would have been filed by the Bush administration,” said Erwin Chemerinsky, dean of the UC Irvine School of Law. “There is no reason for the Obama administration to get involved in this case, let alone to take the conservative position that there is no standing.”

The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, called the administration’s stand “inexplicable.”

After the Citizens United v. Federal Election Commission decision, I have little comfort that the legal standing of taxpayers to sue the government over breeches of the Establishment Clause will stand. A decision is expected in June. Theocracy here we come.


Cross-posted from Daily Kos.


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    “The brief they filed is the same that would have been filed by the Bush administration… There is no reason for the Obama administration to get involved in this case, let alone to take the conservative position that there is no standing.”

  2. …. so what’s the verdict over at the Big Box ?  they can’t wait for it ?

    The Obama administration says taxpayers have no right to sue if a state uses tax funds for parochial school tuitions,” the Los Angeles Times reports.

    mmmm.  School reform.  Oh, wait, does education reform as shilled by Michele Rhee the Union breaker, and Arne Duncan, apply to private schools ?

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