Thursday, November 4, 2010
Yesterday the Supreme Court heard oral argument in Arizona Christian School Tuition Organization v. Winn, an establishment clause challenge to an Arizona law permitting taxpayers to receive a state tax credit for donations to educational scholarship organizations. A majority of the resulting scholarships went to students who attended religious schools. The case raises at least two major issues for religious schools and other religious organizations.
The obvious issue is whether the government can provide such tax credits, when they ultimately are shown to benefit religious schools in large part. The less obvious but more important issue is the extent to which taxpayers have standing to challenge tax provisions that they allege violate the establishment clause. How the Supreme Court decides whether such standing exists, as an exception to the general rule that taxpayers do not have standing to challenge tax provisions that benefit other taxpayers, could have enormous ramifications given the large number of both state and federal tax provisions that benefit churches, other religious organizations, and ministers. For example, how the Supreme Court resolves this standing issue will determine whether the current lawsuit challenging the ministerial housing allowance as unconstitutional will be able to proceed. The lower courts in both that lawsuit and Winn found such standing to exist under the Supreme Court's earlier decision in Flast v. Cohen, 392 U.S. 83 (1968).