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.