Supreme Court Religious Liberty Win
April 4, 2011
Today the Supreme Court announced an important decision for religious liberty. In a 5-4 decision written by Justice Kennedy, the Court held that state taxpayers lacked standing to challenge a state program allowing tax credits for state taxpayers' contributions to school tuition organizations that provided scholarships to private schools, including religious schools. Justices Scalia and Thomas concurred but would have overruled Flast v. Cohen, 392 U.S. 83 (1968). In dissent, Justice Kagan wrote on behalf of Justices Breyer, Ginsburg, and Sotomayor, urging that the taxpayers had standing under Flast.
Christian Legal Society is pleased with the decision. CLS filed an amici brief in support of the program's constitutionality on behalf of United States Conference of Catholic Bishops, Union of Orthodox Jewish Congregations of America, Council for Christian Colleges & Universities, Center for Arizona Policy, and Association for Biblical Higher Education. Our brief was written by Professor Thomas Berg, University of St. Thomas School of Law (Minnesota), and Professor Douglas Laycock, University of Viriginia School of Law (schools noted for professors' affiliation purposes only).
The Supreme Court's decision in Arizona Christian School Tuition Organization v. Winn is here. CLS's brief in support of the program's constitutionality is here.
In the meat of the decision, Justice Kennedy wrote (slip op. 15-16):
When Arizona taxpayers choose to contribute to STOs [school tuition organizations] they spend their own money, not money the State has collected from respondents or from other taxpayers .... The STO tax credit is not tantamount to a religious tax or to a tithe and does not visit the injury identified in Flast .... Finding standing under these circumstances would be ... a departure from Flast's stated rationale. Furthermore, respondents cannot satisfy the requirements of causation and redressability ....
[C]ontributions result from the decisions of private taxpayers regarding their own funds. Private citizens create private STOs; STOs choose beneficiary schools; and taxpayers then contribute to STOs. While the State, at the outset, affords the opportunity to create and contribute to an STO, the tax credit system is implemented by private action and with no state intervention .... These considerations prevent any injury the objectors may suffer from being fairly traceable to the government.