This morning's oral argument over the constitutionality of an Arizona tax credit revealed that even when the justices are peering down at a murky mud puddle of doctrine, they can still see precisely what they want to see. Arizona v. Winn is about a suicide pact between two doomed lines of First Amendment jurisprudence: The rule that grants taxpayers "standing" to bring lawsuits in cases that may have the effect of "establishing religion" and the rule that holds that government shouldn't be in the business of establishing religion in the first place.
The standing question sounds trickier than it is. Usually taxpayers can't even get into courtrooms with the claim that they don't like how the state is spending their tax dollars (on, say, wars or highways). But in the narrow area of the Establishment Clause, the Supreme Court allows taxpayers to sue the government based on the idea that there is no other mechanism to stop the government from promoting religion, since presumably it's only the taxpayer who is harmed. In a 1968 case, Flast v. Cohen,the court determined that taxpayers could sue when government expenditures are unconstitutional. There is a real question looming today about whether the Establishment Clause can be policed in any other way if Flast is overturned.
Even if the Arizona taxpayers do have standing to sue, a second issue in the case is whether the tax-credit regime violates the Establishment Clause. And the Supreme Court is deeply conflicted right now over whether that clause is violated whenever the government "endorses" one religion over another, or if it just "coerces" someone into participating in some religious activity, or if it gives money to religious activity, or even if it builds a huge government church in the middle of Peoria, Ill. Justices Thomas and Scalia have gone further than the other conservatives in chipping away at the Establishment Clause jurisprudence. But with Samuel Alito replacing Sandra Day O'Connor, the current state of the law is sufficiently ambiguous to be almost completely up for grabs.
Today's case involves a scheme in Arizona to give tax credits to anyone who donates money to a student tuition organization, or STO. STOs, in turn, give money to students to use for private schools. Some of the largest STOs limit scholarships to religious schools. Taxpayers sued claiming that since most of the funds donated under the tax-credit program go to STOs that funnel kids to religious schools, the program violates the Establishment Clause.
A second question in the case is whether these taxpayers even have standing to bring the suit. The district court found they did not, but the 9th Circuit reversed and said that under Flast v. Cohen, the case could go forward, so here we are.
Thus the two doctrines racing toward extinction today are Flast, which the high court all but overruled in a 2007 case called Hein v. Freedom From Religion Foundation, and the whole line of cases that preclude states from giving funds to advance religion. Acting Solicitor General Neal Katyal rises to defend the Arizona scheme. He says that the scheme is constitutional and the taxpayers have no standing to sue. Katyal opens with the claim: "Not a cent of the respondent's money goes to fund religion. If you placed an electronic tag to track and monitor each cent that the plaintiffs pay in tax, not a cent, not a fraction of a cent, would go into any religious school's coffers."
Justice Sonia Sotomayor disagrees: "This money, either you pay it to the state or you use it for this purpose, but it's the state's money and it's giving you by its largesse the right to redirect it. That's their argument."
This is one of the fights we will have all morning: When is your tax money not your tax money? Justice Stephen Breyer asks whether there could be a system in which your check to the IRS is "cashed by an official and the cash is given to the local priest to say prayers for the individual who contributed." Katyal points out that such a scheme isn't all that different from deductions you can take under 501(c)(3) that may be directed to purely religious charities. Breyer replies that if all that is required under the Establishment Clause is fairness to every religion, "the first Congress could have funded prayers throughout the nation in churches for anyone to go and pray."
Having just heard Katyal claim that pretty much nobody has standing to sue over the Arizona law, Justice Elena Kagan swoops in to archly question her former deputy solicitor general on whether the Supreme Court was simply wrong to decide its previous three decades' worth of taxpayer-standing cases. "The court was out of authority to decide any of those cases, but somehow nobody on the court recognized that fact, nor did the SG recognize that fact?" Justice Kennedy—who is a crucial component of the Overruling Olympics planned for the Establishment Clause today—seems vaguely troubled by the fact that nobody could have had standing to challenge the government in those earlier Establishment Clause cases. Katyal wisely references James Madison, because as we all know after yesterday, he is the 10th justice.
Paula Bickett, from the state of Arizona, has 15 minutes to defend the Arizona tax credit, and Kagan asks her why Arizona didn't simply implement a voucher program like most other states. (The Supreme Court upheld a voucher program in a Cleveland case from 2002, even though 95 percent of all vouchers went to religious schools.) Bickett explains that "under the Arizona Constitution any direct aid to private schools is prohibited." Justice Stephen Breyer asks a lengthy question that appears to involve what time of the day religious schools teach religion.
Justice Kennedy asks whether there would be a constitutional violation if an STO discriminated on the basis of race. He is worried when she says that there is no connection whatsoever between the state of Arizona and the STO's decisions. Kagan thus helpfully reframes Kennedy's question to make it look even more like there is state discrimination taking place here: If the state can't discriminate in a voucher program by itself, "why should the state be able to set up a system using intermediaries that exist for no other reason than to administer this program?"
Paul Bender then stands to defend the Arizona taxpayers, and among a sea of polished Supreme Court advocates, he looks comforting, like someone's old Uncle Herb who does trusts and estates in Boise. He really believes that his clients are being forced to pay tax dollars toward religious schools, and he seems kind of grumpy that the justices don't just take him at his word on this. As he puts it, "[G]overnment benefits in a government-benefit program cannot constitutionally be given to the beneficiaries of the program on the basis of their religion."
Justice Antonin Scalia stops him: "So [the government] must positively disfavor religion?" Replies Bender, "No, you must give the money to the beneficiaries without taking the beneficiaries' religion into account." Scalia doesn't accept that a tax credit is the same as the government taking taxpayer money: "This money has never been in the government's coffers. The government has declined to take this money," he says.
Kennedy chimes in: "I have some difficulty that any money that the government doesn't take from me is still the government's money." He adds, "If you reach a certain age, you can get a—a card and go to certain restaurants and they give you 10 percent credit. I think it would be rather offensive for the cashier to say, 'and be careful how you spend my money.' " Bender tries to explain that if there were no state income tax, there would be no tax-credit program, but the court's conservatives aren't buying it. This leads to the best moment of the argument, when Bender urges the court to understand that you can't donate money that isn't yours. "Whose money is it? Is it the taxpayer's money who gives the $1,000 contribution? No. If you don't take my word for it, look at what the STOs say on their Web sites about this program. One of them says quite frankly: 'Hey, you can give charity with someone else's money; it's a miracle!' " (As an aside, the ad was from Chabad, an Orthodox Jewish organization.)
Bender notes that Arizona tax forms expressly say that you can pay your taxes by paying them or donating to an STO. Scalia says if that's the only problem, "they should revise their form," and then chuckles, "This is a major lawsuit?"
But of course this is a major lawsuit, and not just because the court is poised to do away with the most vital mechanism by which to enforce the Establishment Clause (taxpayer lawsuits), but also because at least four of the justices would go much further than that, allowing the state to be tangled up in religious matters. Nobody doubts that all this rests in Justice Kennedy's hands today, and his questions suggest that he is open to doing some kinds of Establishment Clause mischief, mostly because he is not necessarily willing to lock the door on the possibility of his ever doing other kinds of Establishment Clause mischief in the future.
Put simply, when a case is about whether your money is not really your money, and religion is not really religion, and the state is also not really the state, the question of whether the court is going to make law, or not-law, becomes vastly more problematic.