4 April 2011 – Washington, D.C.
The United States Supreme Court has issued its opinion in the consolidated cases Arizona Christian School Tuition Organization v. Winn, 09-987, and Garriott v. Winn, 09-991, reversing the 9th Circuit Court of Appeals to find in favor of Arizona, leaving in place a scholarship program for private schools that detractors see as a violation of the separation of church and state. The narrow (5-4) opinion held that the taxpayers who challenged the program did not have standing to bring the suits. The Court rejected in this instance the application of the “support for religion” exception carved out in its 1968 opinion in Flast v. Cohen, which established the general rule that citizens cannot challenge government policies simply because they are taxpayers.
Writing for the majority, Justice Anthony Kennedy drew a distinction between a tax credit and an actual governmental expenditure that might benefit religion. The scholarship funds, not all of which go to religious schools, “result from the decisions of private taxpayers regarding their own funds.”
Calling the distinction “arbitrary,” Justice Elena Kagan countered that the fate of such a case should not depend on the type of financial subsidy in question. “Appropriations and tax subsidies are readily interchangeable. What is a cash grant today can be a tax break tomorrow.”
The taxpayers were represented by the American Civil Liberties Union, the tuition organization by the Alliance Defense Fund. While civil libertarians in general deplored the decision, the Obama administration joined voice with school choice supporters in support of the position of the Court.
Andrew Coulson (Cato Institute), HuffPost Politics: A “Winn” for education and freedom of conscience
Ken Klukowski, The Washington Examiner: High courts school choice win linked to Obamacare
Joan Biskupic, USA Today: Supreme Court leaves in place Arizona school tax break
Marc Sherman, Associated Press: Court OKs Arizona’s tax break for private schools
Bob Allen, Associated Baptist Press: Supreme Court upholds tax credits for scholarships to religious schools