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.