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.
5 Comments
Name: David
Another way to look at it is to say that many Americans believe the secular humanist religion has been over-emphasized to the detriment of the faith of the founding fathers of the country. “Congress shall make no law …” does not bind states to a hostile approach to religion.
Name: Orin Kerr
The SG”s brief states DOJ’s interest as follows:
Name: Orin Kerr
Oops, pardon my format error. Let me try again.
The SG’s brief states DOJ’s interest as follows:
Erwin, I gather you find this unpersuasive as a statement of interest. Can you explain a bit as to why?
Name: Erwin Chemerinsky
In response to Professor Kerr, my point is that I was very disappointed that the Obama administration took a position opposed to the separation of church and state. Indeed, it is exactly the same position that the Bush administration would have taken. I see no reason why the Obama administration needed to participate in this case since it involves a state law.
Professor Kerr says that federal government has an interest in taxpayer standing because federal and state taxpayers are similarly situated. But if so, then I would have expected and preferred for the Obama administration to support taxpayer standing to challenge violations of the Establishment Clause rather than seek to further limit what is left of Flast v. Cohen. Professor Kerr also says that there are federal tax credit programs. But no federal program is anything like the Arizona law in existing for the purpose and with the effect of channeling money to religious schools. There was no reason for the Obama administration to get involved since invalidation of this tax credit will not put any federal law in jeopardy.
Professor Kerr is correct, of course, that the federal government has participated as amicus in other Supreme Court cases involving state laws providing aid to religious schools. But what is striking about all of his examples is that they involved Republican administrations supporting allowing more government aid to religion. In Zelman v. Simmons-Harris, for example, it was the Bush administration doing so. Conservatives have been seeking to dismantle the wall separating church and state since the Reagan presidency. So Professor Kerr’s examples prove exactly my point: the Obama administration’s position is one to have been expected from a Republican President, but a dismaying disappointment from the Obama administration.
Name: Orin Kerr
Thanks for the response, Erwin. Just to be clear, I’m not making those arguments myself. I was just quoting what the Government’s brief said, and I was curious about your reaction.
As for my own views, I really don’t know enough about the topic to weigh in. I’ve never worked at the SG’s Office, but my sense is that the SG’s office tries to maintain consistency across Administrations on this sort of issue — rather than see the world in terms of “Republican” or “Democratic” Administrations. Given that, I’m not surprised that they filed a brief.
I suppose the argument might be that the SG’s Office *should* see itself in a more political light, as more of a political player: That is, you might want the Obama SG’s Office to be more different from past (Republican) SG’s Offices because you want DOJ to be more political. But I’m not sure if you’re making that argument.
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