Earlier this week in a 5-4 decision the High Court refused to overturn an Arizona law that allows taxpayers to receive a dollar-for-dollar state tax credit for their contributions to school scholarships even if they are for religious schools.  The credit allowed is up to $500 per person or $1000 per couple.  It has cost Arizona approximately $350 million since the law was enacted.

A central concern of the First Amendment was in James Madison’s word to prevent government to require taxpayers to "three pence of his property for the support of religion”.

In Arizona Christian School Tuition Organization v. Winn Geoffrey Stone says that:

“As the Supreme Court recognized more than forty years ago, as a general proposition the Establishment Clause prohibits government from using its "taxing and spending power... to favor one religion over another or to support religion in general." Thus, the Establishment Clause forbids government to fund churches to enable them to spread their religious beliefs or to award special tax credits to individuals to reimburse them for their contributions to religious organizations.”

He and other legal scholars say that there’s a catch in that it’s been unclear whether citizens have ‘standing’ to sue over these programs as it’s difficult to prove that those bringing suit can prove they’ve suffered an ‘injury in fact’; if not it could lead to either frivolous or weak lawsuits with poor challenges which could harm the legal system.

Apparently since no particular individual would be harmed by Establishment issues, it would essentially mean that in reality no one would have standing to sue.  Given that that’s a pretty unwieldy contention, Stone says:

“To solve this problem, the Supreme Court held in Flast v. Cohen in 1968 that taxpayers do have standing to challenge taxing and spending policies that violate the Establishment Clause. Until recently, federal courts at every level, including the Supreme Court, have consistently and broadly applied Flast to enable taxpayers to enforce the Establishment Clause.”

So in this case, apparently to get around Flast, the Creative Conservative Five chose to find that this in this Arizona case citizens had no standing because it didn’t involve government expenditures, but tax credits.  Had the Arizona government just given the religious schools the bucks instead, citizens would have standing to sue. 

Stone says:

“As Justice Elena Kagan explained in a powerful dissenting opinion, joined by Justice Breyer, Ginsburg and Sotomayor, this distinction "has as little basis in principle as it has in our precedent." Indeed, the conservatives' new approach "enables the government to end-run Flast's guarantee of access to the Judiciary." As Kagan observed, under the conservatives' analysis, a state that wants "to subsidize the ownership of crucifixes" can now simply grant a tax credit to individuals who buy crucifixes. That program would effectively be insulated from constitutional challenge, not because it is constitutional, but because no one would be permitted to raise the question..

With their decisions in Hein and Arizona Christian School Tuition Organization, the five conservatives on the Supreme Court have thus enabled government to violate the Establishment Clause at will, by denying courts the authority to declare even unconstitutional programs unconstitutional. In so doing, they have, in Justice Kagan's words, eviscerated "our Constitution's guarantee of religious neutrality."

Writing at The Cockleburr, Erwin Chemerinsky rues the Obama administration getting involved in an Establishment issue, especially one that doesn’t involve a federal law, thus didn’t require the administration’s involvement.

“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.”

 [snip]

“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.”   (my bold)

Nice job, guys.  Somewhere Margaret Atwood is laughing in her beer, laughing at those who assured here this crap would never happen here.  “Wanna bet?” she’s probably quipping again.

(Disclaimer: I’m as far from being attorney as may be possible; but church and state issues are vastly important to me.  Please forgive any errors.)

(cross-posted at my.firedoglake.com)