FFRF IRC 107 Case Update!
- (The decision in the following case could have an impact on the FFRF IRC 107 Case which will probably not be decided by Judge Shubb of Sacramento before the decision in the case below is expected.-RLBaty)
Supreme Court Weighs Arizona Tuition Tax Credits
By Mark Walsh on November 3, 2010
An Arizona program of tax credits for contributions to organizations that provide private school tuition scholarships, including to students attending religious schools, was defended in the U.S. Supreme Court today as a neutral program that does not offend the U.S. Constitution.
> "Not a cent of [challengers'] taxunder the Arizona program, said acting U.S. Solicitor General Neal K. Katyal.
> money goes to fund religion"
The state of Arizona made similar arguments that the 13-year-old program does not violate the First Amendment's prohibition against government establishment of religion.
> "Arizona's tuition tax credit doessaid Paul S. Bickett of the state attorney general's office.
> not violate the establishment clause
> because it is a neutral law that
> results in scholarship programs of
> private choice,"
But Paul Bender, a Phoenix lawyer representing Arizona taxpayers who have challenged the program on establishment-clause grounds, said,
> "Our claim is that state money isThe argument in Arizona Christian School Tuition Organization v. Winn (Case no. 09-987) was a lively hour in which the justices debated taxpayer standing, the state's mechanism for aiding its private schools, and whether the money withheld from a state under a tax credit or a deduction was the state's money or not.
> being given to the beneficiaries of
> a state spending program on the
> basis of religion."
Under Arizona's plan, taxpayers can receive a dollar-for-dollar credit of up to $500 (or $1,000 for married couples) on their state income-tax returns for donations to "school tuition organizations."
The STOs must spend at least 90 percent of their annual revenues on scholarships or tuition grants. The organizations may not limit their grants to a single school, but they may limit them to religious schools, as several of the STOs do.
Last year, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held that a majority of the Arizona scholarships go to students attending religious schools, and that some of the STOs restrict their scholarships to that purpose. The appeals court allowed the challenge to the tax-credit program to go forward.
In the Supreme Court on Wednesday, several justices saw no problem with the fact that some STO's limit their scholarship aid to religious schools. Justice Antonin Scalia said the decision to contribute to such a religiously affiliated STO was a private decision by the taxpayer, not raising the specter of religious discrimination by the government.
> "It's not even discriminationScalia told Bender.
> between religion and nonreligion,"
> "It doesn't favor religion at all."Justice Samuel A. Alito Jr. observed that
> "this is a very modest tax credit."The Supreme Court in the 1983 case of Mueller v. Allen upheld a Minnesota tax deduction for money spent by parents on their own children, even when 97 percent of the tuition funds were going to religious schools. In Zelman v. Simmons-Harris, in 2002, the justices upheld an Ohio program providing vouchers for poor children in Cleveland to attend private schools, including religious schools.
Justice Elena Kagan, weighing her first education case as a member of the high court, told Bickett she found it "puzzling" that Arizona adopted such a complex tax-credit program instead of the straightforward tuition voucher of the type the court upheld in Zelman.
> "This is so much moreKagan said of the tax-credit program.
> complicated and unusual,"
Bickett replied that the program encourages contributions for tuition not just from parents, who cannot directly aid their own children under the program, but also from other taxpapers. Left unsaid was that Arizona adopted its program in 1997, when the federal constitutionality of religious school vouchers was still an unsettled question.
Justice Sonia Sotomayor told Katyal that it appeared that if the challengers can sustain their claim,
> "it would be taxpayer dollarsJustice Anthony M. Kennedy, possibly the court's critical center vote, appeared troubled that the STO's were so entwined with the government that their decisions on where to spend scholarship dollars amounted to "state action."
> paying for religion."
> "The state has all sorts of rulesKennedy told Pickett.
> about what an STO has to be,"
> "The state provides the mechanismBender sought to stress that his view that the Arizona program was not one of private charity, but in essence a government spending program that aids the coffers of religious schools.
> through the credit for the funding."
> "The money in this case is nothe said.
> a charitable contribution,"
In an unusual move, Katyal, the chief courtroom lawyer of President Obama's administration, took the lead at oral argument in defending the state program.
And a chief argument of Katyal's is that the challengers lack standing as taxpayers to challenge the program under the establishment clause.
> "There is no taxpayer standingKatyal said.
> in this case,"
In a 1968 decision, Flast v. Cohen, the Supreme Court created an exception to the general rule that barred challenges to government programs based on taxpayer standing alone. The court allowed taxpayers to challenge a program of direct grants to religious organizations. In subsequent decisions, most recently in the 2007 case of Hein v. Freedom From Religion Foundation, the court has made it more difficult for taxpayers to bring such challenges.
Bender argues that the challenge by his Arizona taxpayers fits well within Flast because the program amounts to direct aid to religion.
While Katyal was pressed by some of the court's more liberal members (who tend to favor a broad view of standing) on his argument against standing, the court's conservatives did not question Bender about standing, instead focusing on the constitutionality of Arizona's program.
The justices should decide the case by the end of their term in June.
(go to link above to find links to the briefs)
- (Here's a first person account from one of my contact.-RLBaty)
To: Robert Baty
From: Xxxx Xxxxx
Date: Wednesday, November 3, 2010 7:16 PM MT
Subject: I was there at the SCOTUS
Yes, I was there...
I think Paul Bender did a very good job in arguing that the plaintiffs had standing and that the Establishment Clause was violated.
Most of the discussion was on taxpayer standing.
Bender had to deal with a lot of hostile questions from Scalia, but Kennedy and Alito also seemed negative--Chief Justice Roberts said very little and Justice Thomas said nothing.
On the other side, let us consider the so-called "liberals" whatever that might mean.
Breyer was especially receptive to Paul Bender's arguments, as were Ginsberg and Kagan.
Sotomayor did not say too much. Hard to determine what she thought.
Nina Totenberg is the Supreme Court correspondent for NPR and this is a link to her story.
- A transcript of the hearing today before the U.S. Supreme Court can be found at:
Interesting reading for those interested in such things.
--- In Maury_and_Baty@yahoogroups.com, "rlbaty50" <rlbaty@...> wrote:
> (Here's a first person account from one of my contact.-RLBaty)
> To: Robert Baty
> From: Xxxx Xxxxx
> Date: Wednesday, November 3, 2010 7:16 PM MT
> Subject: I was there at the SCOTUS
> Yes, I was there...
> I think Paul Bender did a very good job in arguing that the plaintiffs had standing and that the Establishment Clause was violated.
> Most of the discussion was on taxpayer standing.
> Bender had to deal with a lot of hostile questions from Scalia, but Kennedy and Alito also seemed negative--Chief Justice Roberts said very little and Justice Thomas said nothing.
> On the other side, let us consider the so-called "liberals" whatever that might mean.
> Breyer was especially receptive to Paul Bender's arguments, as were Ginsberg and Kagan.
> Sotomayor did not say too much. Hard to determine what she thought.
> Nina Totenberg is the Supreme Court correspondent for NPR and this is a link to her story.
- Here's another report on yesterdays SCOTUS hearing, with emphasis on the "standing" issue most relevant to the FFRF IRC 107 suit:
Solicitor general surprises justices in religious schools case
The Obama administration says taxpayers have no right to sue if a state uses tax funds for parochial school tuitions. One advocate for separation of church and state calls the stance 'inexplicable.'
November 3, 2010
Reporting from Washington The Obama administration upset liberals as well as the president's two Supreme Court appointees Wednesday by arguing that taxpayers had no right to sue the government if it used tax money to fund religious schools.
The surprising argument came in this term's most important church-state dispute. At issue is the constitutionality of an unusual 13-year-old Arizona law that gives individuals dollar-for-dollar tax credits up to $500 for contributions to private organizations, which in turn allows taxpayers to direct a $500 tax credit to a private organization, which in turn pays tuition for students in private schools. More than 90% of the money goes to religious schools, the challengers said.
Acting U.S. Solicitor Gen. Neal Katyal joined Arizona in defending the law but went further, arguing that no one had legal standing to challenge it in court. Since no citizen could prove that "a cent of his money goes to fund religion," no one had a right to sue over the alleged unconstitutional subsidy for religion, Katyal said.
Justices Ruth Bader Ginsburg and Stephen G. Breyer quickly objected. If no one can sue, there would be no way to enforce the 1st Amendment's ban on laws that foster "an establishment of religion," they said.
Justice Sonia Sotomayor appeared to agree, commenting that "this is the state's money" going to private groups that fund only religious schools.
Justice Elena Kagan, Katyal's boss until she joined the court in August, also objected to his argument. She ticked off a series of landmark rulings that rejected state aid to parochial schools.
> "So, if you are right, the courtthose cases,
> was without authority to decide"
> "but somehow nobody on the courtshe asked.
> recognized that fact?"
> "My answer to you is yes,"he said.
At this, Justice Anthony M. Kennedy, a key swing vote, called for a pause.
> "I just want to make sure IKatyal said the court might have the right to say the states had wrongly subsidized religion, but he insisted no taxpayer had standing to sue.
> heard your answer. Your answer
> is yes? Those cases were wrongly
Although technical, the issue of standing is crucial to the dispute.
In the past, advocates of church-state separation have sued to object when a city, for example, puts a religious symbol on public property. But in recent years, the court's leading conservatives, including Chief Justice John G. Roberts Jr. and Justice Antonin Scalia, have questioned whether such people have standing because they cannot prove they were injured.
If the court were to agree with Katyal and broadly shield the government from legal claims that it is wrongly diverting public money to aid religion, the ruling could be far-reaching.
Liberal advocates said they were taken aback by the administration's stand.
> "The brief they filed is the samesaid Erwin Chemerinsky, dean of the UC Irvine School of Law.
> that would have been filed by the
> Bush administration,"
> "There is no reason for the ObamaThe Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, called the administration's stand
> administration to get involved in
> this case, let alone to take the
> conservative position that there
> is no standing."