High court ruling on Arizona program sets a bad precedent

The Supreme Court this week turned aside a challenge to the constitutionality of an Arizona tuition-assistance program, ruling that the opponents of the law lacked the standing to sue. The decision might seem technical, but it will make it harder in the future for taxpayers to challenge programs that breach the wall between church and state.

Under the Arizona program, the state gives a dollar-for-dollar tax credit to any taxpayer who donates funds to a private group known as a Student Tuition Organization, which uses the money to pay the private school tuition of eligible students. Because some of the money donated under the program went to organizations that funneled it to religious schools, the plaintiffs argued that the tax credit violated the 1st Amendment's ban on government endorsement of religion. But the court in 2002 upheld a Cleveland, Ohio, voucher plan that raised similar constitutional issues.

We don't know whether the court would have taken the same position in this case because, in the end, it ruled only on the issue of standing, the doctrine that someone must have a personal stake in a controversy to bring a lawsuit. In general, taxpayers are barred from challenging laws they consider unconstitutional unless they have a direct connection. But under a 1968 decision, church-versus-state cases are an exception. A taxpayer is free to go to court to challenge a government subsidy or endorsement of religion even if he or she can't complain of a personal injury.

Given that exception, one would think that the court would have decided the Arizona case on its merits. Instead, it ruled that the taxpayers lacked standing because Arizona didn't provide the Student Tuition Organizations with state funds but rather gave taxpayers a tax credit in exchange for their contributions. Justice Anthony M. Kennedy's majority opinion said: "When Arizona taxpayers choose to contribute to STOs, they spend their own money, not money the State has collected from respondents or from other taxpayers." This is sophistry. As Justice Elena Kagan pointed out in her dissent: "Cash grants and targeted tax breaks are means of accomplishing the same government objective — to provide financial support to select individuals or organizations."

State legislatures are forever passing laws, including tax measures, that raise issues of unconstitutional establishment of religion. The court was right in 1968 to allow citizens to challenge such laws. It was wrong in the Arizona case to limit that access.

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