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Monday, April 04, 2011

Quick Question About Arizona Christian Tuition Organization v. Winn

Rick Garnett below notes the Court’s decision this morning in Arizona Christian Tuition Organization v. Winn.  I’m more sympathetic to the Flast exception than he is.  Without it, it seems like the core of the Establishment Clause becomes judicially unenforceable: Governments could create a classic sort of establishment by simply funding one religious denomination to the exclusion of all others, with no one having standing to challenge it.  Maybe nowadays we see no defensible distinction between taxpayers forced to pay for religion and taxpayers forced to pay for other things.  But I see Madison et al. as having a different view.

My question, though, is about what Winn actually does.  Justice Kennedy’s opinion says that tax credits are different than government expenditures.  Taxpayers can challenge government expenditures, because the government really is spending their money on religion.  Taxpayers can’t challenge tax credits, because no identifiable taxpayer dollars go to religion.  This seems like a very formalistic distinction.  But it’s the Establishment Clause—and Establishment Clause standing at that—so we’re all pretty used to formalistic distinctions.

My question is this: Does Justice Kennedy mean to suggest that taxpayers can never challenge tax credits under the Establishment Clause?  That’s how the press reports are taking it.  That seems to what the dissent sometimes fears.  But I initially read Winn quite a bit narrower than that.  More after the jump.

Maybe I’m just wrong, but parts of Justice Kennedy’s opinion suggest to me that would be standing to challenge a tax credit system that was religiously non-neutral.  There are a number of statements like this one:

When the government collects and spends taxpayer money, governmental choices are responsible for the transfer of wealth . . . Here, by contrast, contributions 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.  Objecting taxpayers know that their fellow citizens, not the State, decide to contribute and in fact make the contribution. 

These paragraphs are all about “true private choice,” the theme of Zelman.  Justice Kennedy is saying that taxpayers have free choice over which STO to fund; they can choose religious ones or secular ones.  Arizona really isn’t funding religion at all, so taxpayers’ money isn’t really funding religion at all, so they don’t really have standing. 

Justice Kennedy may be just saying that there’s no standing to challenge these programs of “true private choice.”  If so, Winn is just the “standingification” of Zelman.  There’s no standing to challenge constitutional funding programs, but there would be standing to challenge unconstitutional funding programs (the ones that do not involve true private choice).

(Of course, this ends up totally blurring the standing inquiry with the merits inquiry.  But I leave those things for Howard to worry about.)

Am I just projecting all this onto the opinion?  Maybe it’s just that I have a hard time believing that Justice Kennedy would be okay with denying standing in a blatant case of discrimination—i.e., Arizona giving a preferential tax credit only to the Lutheran Church.

Posted by Chris Lund on April 4, 2011 at 08:08 PM | Permalink


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I think Flast is a travesty. The Court long ago should have recognized that Establishment Clause claims are sui generis. I should have standing to contest an allegedly establishmentarian action if I can claim that the government has exalted someone else's metaphysics over my own. That's not the same thing as saying "I'm a citizen and I don't LIKE this establishmentarian action." That claim would lack standing. But "I'm and atheist, and I am prejudiced by this establishmentarian action" seems to me enough to create standing under a provision that does not by its nature create more specific grievances. (All the other Bill of Rights violations generally involve a more direct harm to SOMEONE, so prudentially, waiting for that someone to bring suit or appeal an action makes sense. But establishment exaltats one group over all others, and it ought to be actionable on that basis by anyone not in the exalted group.

Posted by: Lawrence Jay Kramer | Apr 14, 2011 9:43:49 AM

Maybe part of my surprise about your comment, Rick, is that it comes from you. We're seeing more and more people these days question whether there's a meaningful distinction between religious commitments and other commitments (i.e., Brian Leiter, etc.) On the Free Exercise side, I bet we both see a distinction and think that the Framers did too. I guess I've always imputed (maybe naively, maybe ahistorically, but see Micah's point) the same idea to the Framers about taxation--taxation for religious purposes might well be different than taxation for other purposes. I get that, from one angle, it doesn't make sense to forbid the government from taxing me 3 pence for a church I don't support, when it can tax me $3,000 for a war I don't support. But I guess I can understand why the Framers might have thought differently.

I'm sorry, Rick, this isn't fair. I need to just go and read your piece.... =)

Posted by: Chris Lund | Apr 5, 2011 1:55:33 PM

Rick says: "As for Madison, with all due respect, I think it's not true that one's "conscience" is burdened by a school-voucher program in a way that should distinguish that burden from the way one's conscience is burdened by military spending."

It's not just Madison who held this view. It's been well documented (by Feldman and Underkuffler, among others) that many founders (and framers) agreed that taxation to promote others' religion was an infringement on conscience. There was a prolonged and heated dispute in New England about whether taxation to promote one's own religion was permissible. New Lights like Isaac Backus rejected even that view, as did Madison and Jefferson, among others.

I'm not sure why all of this falls on Madison's shoulders. Perhaps because of associations with the Anglican Church, it was a very widely held view during the founding era that taxation to promote religion was different than other kinds of taxation. Maybe we don't believe that anymore. But if we don't, the implications go well beyond taxation.

Posted by: Micah Schwartzman | Apr 5, 2011 1:35:42 PM

again "the same" means "for 1A purposes"

Posted by: Joe | Apr 5, 2011 11:04:56 AM

"Many of these STOs, the Plaintiffs claim, discriminate on the basis of a child’s religion when awarding scholarships." [Kagan]

If so, given an opening remains, some group should have standing, just not the average taxpayer. I assume the lawsuit here wasn't just in place for some misguided reason though. As with many cases cited in the opinions, no taxpayer standing would mean much less court review. The supporters of more mixing of church with state appreciate this, let's be honest.

As I said separately, I disagree with Prof. Garnett that using my tax dollars to teach someone a religion or build a church (if we simply do away with taxpayer standing, in for a penny, in for a pound) is the same as something like military spending that might be against my conscience but not religiously motivated.

Posted by: Joe | Apr 5, 2011 11:02:56 AM

Sorry, I'm with Anon too--my example would be covered by Texas Monthly. Maybe Flast still does some special work in protecting taxpayers from non-neutral funding programs--such as when the government's criteria are discretionary and it's unclear which other groups might be entitled to funds (and thus would have standing to sue under Texas Monthly)? But you all are dead right about my example. And Rick, I've just printed your Villanova piece to check out your take on the Madison stuff.

Posted by: Chris Lund | Apr 5, 2011 9:44:36 AM

Dear Chris, I'm with anon, too, I think. I don't think Flast is necessary to save us from real "establishments". Putting aside state-court litigation, it seems to me that the only thing tanking Flast would do, really, would be to compromise the ability of people to challenge neutral funding programs that benefit religion *simply* on the ground that they oppose such programs. (Nor is Flast necessary for remedy "endorsement"-type harms, right?) As for Madison, with all due respect, I think it's not true that one's "conscience" is burdened by a school-voucher program in a way that should distinguish that burden from the way one's conscience is burdened by military spending.

Posted by: Rick Garnett | Apr 5, 2011 9:10:31 AM

I'm with anon. The Court today approves of Texas Monthly, which allows standing for people complaining that they personally don't get tax advantages. See, e.g., op. at 2, 17-18.

Posted by: Chris | Apr 4, 2011 10:19:41 PM

In your Lutheran church example--it is clear, isn't it, that a Catholic church would have standing to challenge the credit, not as a taxpayer but a party injured in the real, Lujan sense?

Posted by: anon | Apr 4, 2011 9:45:10 PM

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