The Obama administration’s brief supporting an Arizona law which creates a tax credit system which substantially benefits religious schools is inexplicable and deeply disappointing. Arizona Christian School Tuition Organization v. Winn (Nos. 09-857 and 09-991), to be argued on Wednesday, November 3, does not involve a federal law and did not require any participation by the Obama administration. Yet, the Solicitor General’s office filed a brief for the United States which argues that taxpayers lack standing to challenge a state tax program which subsidizes religious schools and that this does not violate the Establishment Clause of the First Amendment. It is exactly the brief that would have been expected from the Bush administration, but disturbing to have come from the Obama Justice Department.
A state statute allows Arizona taxpayers to receive a tax credit of up to $500 on a dollar-for-dollar basis for donating to a student tuition organization (“STO”). Arizona’s largest STOs (as measured by the amount of contributions) each limit scholarships to certain religious schools. The largest restricted scholarships are to students attending Catholic schools in the Phoenix diocese; the second largest restricts scholarships to students who attend evangelical Christian schools. Although the statute required that STOs not discriminate on the basis of race, color, handicap, familial status or national origin,” it did not specify eligibility requirements. Thus, individuals would receive a tax credit if they made a contribution to an STO and they could designate their money for an STO that supported only schools of a particular faith.
The United States Court of Appeals for the Ninth Circuit declared this unconstitutional, holding that taxpayers have standing and that the Arizona law violates the Establishment Clause. Under Flast v. Cohen, 392 U.S. 83 (1968), the Court recognized that taxpayers have standing to challenge government expenditures as violating the Establishment Clause of the First Amendment. The Arizona law does exactly that by taking money away from the state treasury and transferring it to the coffers of religious institutions. Moreover, the Ninth Circuit ruled that the law violated the First Amendment because it had the purpose and effect of advancing religion.
It is mystifying as to why the Obama administration decided to participate in this case. There is no comparable federal law. Certainly, the lawyers in the Solicitor General’s office, to say nothing of the President himself, are aware that there are likely five votes on the Supreme Court to change the Establishment Clause in a conservative direction and to allow much more government aid to religion and much more of a religious presence in government. That is what conservatives have long favored and it is inexplicable why a Democratic administration would want to push the Court in this direction.
If taxpayers lack standing to challenge government expenditures as violating the Establishment Clause, there will be no way to halt government programs which directly subsidize religion. Equally troubling, if the Arizona law is upheld, it will encourage other similar programs across the country which exist solely to funnel taxpayer monies to religious schools.
Since the Reagan administration, conservatives have sought to eliminate the notion of a wall separating church and state. It is sad and very troubling to see the Obama administration lending its support for this effort.