Giving to religious schools

The United States has a long tradition of allowing tax breaks for charitable contributions, including donations to churches and other religious organizations. But the San Francisco-based U.S. 9th Circuit Court of Appeals has concluded that a program that offers tax credits for contributions to provide scholarships for private schools breaches the wall separating church and state. It’s a tortured decision that the Supreme Court rightly has agreed to review.

For 13 years Arizona has offered a tax credit — up to $500 for individuals and $1,000 to married couples — for contributions to so-called school tuition organizations that provide scholarships to private schools so long as they don’t discriminate on the basis of race, color, handicap, familial status or national origin.

Missing from that list is religion, and according to those challenging the law, most contributions were to organizations that awarded scholarships usable only at religious schools. Based on the facts presented by the opponents, the 9th Circuit concluded that the law favored religion in violation of the 1st Amendment.

According to the court, the fact that the law disproportionately benefited religious schools suggested that its neutral language was a “sham” and that in practice the law discriminated against parents who preferred secular schools. But in a 2002 decision upholding a voucher program in Cleveland, the Supreme Court said that the program wasn’t unconstitutional just because more parents chose to use the vouchers at religious schools. The same logic applies to the scholarships offered by school tuition organizations.

The appeals court offered another, equally strained, argument: that tax credits like those offered by Arizona represent more of a constitutional problem than tax deductions for contributions to churches and religious schools. That’s a distinction without a difference: Both sorts of tax breaks are paid for by citizens.

Religious schools contribute to the diversity of education in this country, and especially in inner cities, they provide an alternative to inferior public schools (and often accept children of other faiths). If nonsectarian private schools are to benefit from tax credits, so should they.

Of course, the question for the courts isn’t whether programs like Arizona’s are good policy but whether they violate the Constitution. The 9th Circuit’s ruling is unpersuasive on that point, and it is likely to have its wrist slapped by the Supreme Court. It will be a deserved reprimand.