Supreme Court gets around "establishment of religion" prohibition by allowing tax credits for religious tuition

By Michael J.W. Stickings

And so the right-wing Supreme Court continues to erode the First Amendment:

The Supreme Court on Monday let stand an Arizona program that aids religious schools, saying in a 5-to-4 decision that the plaintiffs had no standing to challenge it.

The program itself is novel and complicated, and allowing it to go forward may be of no particular moment. But by closing the courthouse door to some kinds of suits that claim violations of the First Amendment's ban on government establishment of religion, the court’s ruling in the case may be quite consequential.

Justice Elena Kagan, in her first dissent, said the majority had laid waste to the doctrine of "taxpayer standing," which allows suits from people who object to having tax money spent on religious matters. "The court's opinion," Justice Kagan wrote, "offers a road map -- more truly, just a one-step instruction -- to any government that wishes to insulate its financing of religious activity from legal challenge."

The decision divided the court along the usual ideological lines, with the three other more liberal members -- Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor -- joining the dissent.

The Arizona program gives taxpayers there a dollar-for-dollar state tax credit of up to $500 for donations to private "student tuition organizations." The organizations are permitted to limit the scholarships they offer to schools of a given religion, and many of them do.

The question comes down to whether a tax credit is essentially the same as a government expenditure -- in this case with respect to government financial support for religious institutions (if not for a specific religion). Justice Kennedy, writing for the conservative majority, said no, but I'm really not sure there's a substantive difference. As Justice Kagan wrote: "Taxpayers experience the same injury for standing purposes whether government subsidization of religion takes the form of a cash grant or a tax measure." And so what the Supreme Court is saying -- or, rather, its majority -- is that government subsidization of religion, through organizations that are not religion-neutral, is constitutional.

As BooMan notes, this is all "rather clever." Handing out tax credits instead of direct subsidies (which even this court might object to) is a way for conservatives, and for conservative states like Arizona, to circumvent the First Amendment's "establishment of religion" prohibition. It's theocracy through the back door, and, because "standing" was taken away from you, there isn't a damn thing you can do about it.