Monday, April 4, 2011
Today the Supreme Court decided Arizona Christian School Tuition Organization v. Winn (09-987). Splitting 5-4, the Court holds that the plaintiffs lacked standing to bring an Establishment Clause challenge to an Arizona law providing “tax credits for contributions to school tuition organizations, or STOs,” which “use these contributions to provide scholarships to students attending private schools, many of which are religious.”
From Justice Kennedy’s majority opinion (joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito):
[R]espondents contend that they have standing to challenge Arizona’s STO tax credit for one and only one reason: because they are Arizona taxpayers. But the mere fact that a plaintiff is a taxpayer is not generally deemed sufficient to establish standing in federal court. To overcome that rule, respondents must rely on an exception created in Flast v. Cohen, 392 U. S. 83 (1968). For the reasons discussed below, respondents cannot take advantage of Flast’s narrow exception to the general rule against taxpayer standing.…
It is easy to see that tax credits and governmental expenditures can have similar economic consequences, at least for beneficiaries whose tax liability is sufficiently large to take full advantage of the credit. Yet tax credits and governmental expenditures do not both implicate individual taxpayers in sectarian activities. A dissenter whose tax dollars are “extracted and spent” knows that he has in some small measure been made to contribute to an establishment in violation of conscience. Flast, supra, at 106…. When the government declines to impose a tax, by contrast, there is no such connection between dissenting taxpayer and alleged establishment. Any financial injury remains speculative. And awarding some citizens a tax credit allows other citizens to retain control over their own funds in accordance with their own consciences.
The distinction between governmental expenditures and tax credits refutes respondents’ assertion of standing. When Arizona taxpayers choose to contribute to STOs, they spend their own money, not money the State has collected from respondents or from other taxpayers. Arizona’s §43–1089 does not “extrac[t] and spen[d]” a conscientious dissenter’s funds in service of an establishment, Flast, 392 U. S., at 106, or “‘force a citizen to contribute three pence only of his property’” to a sectarian organization, id., at 103 (quoting 2 Writings of James Madison, supra, at 186).
From Justice Kagan’s dissenting opinion (joined by Justices Ginsburg, Breyer, and Sotomayor):
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, 392 U. S. 83 (1968), and continuing in case after case for 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. A tax credit, the Court asserts, does not injure objecting taxpayers, because it “does not extract and spend [their] funds in service of an establishment.” Ante, at 15 (internal quotation marks and alterations omitted). This novel distinction in standing law between appropriations and tax expenditures has as little basis in principle as it has in our precedent.
Justice Scalia wrote a concurring opinion, joined by Justice Thomas, arguing that the Flast exception should be eliminated entirely:
Today’s majority and dissent struggle with whether respondents’ challenge to the Arizona tuition tax credit falls within that narrow exception. Under a principled reading of Article III, their struggles are unnecessary. Flast is an anomaly in our jurisprudence, irreconcilable with the Article III restrictions on federal judicial power that our opinions have established. I would repudiate that misguided decision and enforce the Constitution.