Justice Elena Kagan’s First Dissent: Discriminating on the Basis of a Child’s Religion When Awarding Scholarships

Kagan, J., dissenting

Supreme Court of the United States

Arizona Christian School Tuition Organization, Petitioner 09- 987 v. Kathleen M. Winn et al

Gale Garriott, Director, Arizona Department of Revenue, Petitioner 09-991 v. Kathleen M. Winn et al

On writs of Certiorari to the United States Court of Appeals for the Ninth Circuit

[April 4, 2011]

Justice Kagan, with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor join, dissenting.

Since its inception, the Arizona private-school-tuition tax credit has cost the State, by its own estimate, nearly $350 million in diverted tax revenue.  The Arizona taxpayers who instituted this suit (collectively, Plaintiffs) allege that the use of these funds to subsidize school tuition organizations (STOs) breaches the Establishment Clause’s promise of religious neutrality.  Many of these STOs, the Plaintiffs claim, discriminate on the basis of a child’s religion when awarding scholarships.

For almost half a century, litigants like the Plaintiffs have obtained judicial review of claims that the government has used its taxing and spending power in violation of the Establishment Clause. Beginning in Flast v. Cohen, 392 US. 83 (1968), and continuing in case after case for over four decades, this Court and others have exercised jurisdiction to decide taxpayer-initiated challenges not materially different from this one.  Not every suit has succeeded on the merits, or should have.  But every taxpayer-plaintiff has had her day in court to contest the government’s financing of religious activity.

Today, the Court breaks from this precedent by refusing to hear taxpayers’ claims that the government has unconstitutionally subsidized religion through its tax system. These litigants lack standing, the majority holds, because the funding of religion they challenge comes from a tax credit, rather than an appropriation.  A tax credit, the Court asserts, does not injure objecting taxpayers, because it “does not extract and spend [their] funds in service of an establishment.” Ante, at 15 (internal quotation marks and alterations omitted).

This novel distinction in standing law between appropriations and tax expenditures has as little basis in principle as it has in our precedent.  Cash grants and targeted tax breaks are means of accomplishing the same government objective — to provide  financial support to select individuals or organizations.  Taxpayers who oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other. Either way, the government has financed the religious activity.

And so either way, taxpayers should be able to challenge  the subsidy. Still worse, the Court’s arbitrary distinction threatens to eliminate  all  occasions for a taxpayer to contest the government’s monetary support of religion.  Precisely because appropriations and tax breaks can achieve identical objectives, the government can easily substitute one for the other.  Today’s opinion thus enables the government to end-run Flast’s guarantee of access to the Judiciary. From now on, the government need follow just one simple rule — subsidize through the tax system — to preclude taxpayer  challenges to state funding of religion.

And that result — the effective demise of taxpayer standing — will diminish the Establishment Clause’s force and meaning. Sometimes, no one other than taxpayers has suffered the injury necessary to challenge government sponsorship of religion. Today’s holding therefore will prevent federal courts from determining whether some subsidies to sectarian organizations comport with our Constitution’s guarantee of religious neutrality.  Because I believe these challenges warrant consideration on the merits, I respectfully dissent from the Court’s decision.

Read the rest of the dissent at the Cornell site.