The U.S. Supreme Court’s conservative majority has ruled that Arizona taxpayers have the right to receive tax credits for making donations to organizations which fund religious school tuitions. Proponents of the tax credits argue that it gives parents greater choice to send their children to religious schools, while opponents argue that it constitutes state-sponsored religion. Ultimately it can be shown that although the connection between the state and religious school tuition funding may be an oblique one, it is there nonetheless, and it deserves our utmost scrutiny.
The lawsuit was brought by a group of Arizona taxpayers against the Arizona Christian School Tuition Organization, a tax-exempt charitable organization. (Arizona’s private school tuition tax credit law was passed in 1997; ACSTO was incorporated a year later to implement the law). The taxpayers challenged the Arizona law as an unconstitutional government endorsement of religion. According to David. G. Savage, Washington bureau reporter for The Los Angeles Times, the taxpayers explained that “some tuition support groups gave money only to children who attended certain church schools. And their ads told taxpayers they could support a child in a religious school and “it won’t cost you a dime”. The U.S. 9th Circuit Court of Appeals initially ruled against the law, describing it as an unconstitutional government subsidization of religion, but the Supreme Court overturned that decision and ruled 5-4 in favor of the law.
Perhaps the most articulate statement summarizing the view of the law’s supporters comes from Justice Anthony M. Kennedy, who spoke on behalf of the Supreme Court’s ruling majority. Savage reports Kennedy as stating that “[w]hen Arizona taxpayers choose to contribute [to an organization funding religious training and education], they spend their own money”, and not the state’s money, therefore the public have no right to object to how that money is being used. For Justice Kennedy, then, Arizona’s tax credit law is not unconstitutional because the money being donated belongs to the donor, and not the government.
However, opponents of the law challenge this assumption, arguing that the donations essentially amount to remitted tax money. This was the view expressed by Paul Bender, the taxpayer’s lawyer. Bender immediately responded to Kennedy’s ruling, challenging the reasoning behind it: “[t]hat is absurd to say it is their money. It is tax money they owe to the state”, he said, adding that “[i]f you give the money to a church school, you get a 100% tax credit. If you can’t object to that, what’s left?” In other words, for Bender, a percentage of every religious donation necessarily does belong to the state, and not the taxpayer, because the state is not legally allowed to remit taxable income back to the taxpayer for the purpose of funding religion.
But is it funding religion, you may ask? Well, yes, indirectly. By letting taxpayers keep taxable income to spend on religious school funding, the government is obliquely funding such organizations, and in turn the religions they represent, through the taxpayer. It is essentially giving its stamp of approval for the funding of schools which subscribe overwhelmingly to the Catholic and Protestant faith traditions. It makes no difference whether there is a middle-man—indeed, the government may even be seen as using the middle-man as an instrument to fund such organizations. Supreme Court justice Elena Kagan, who dissented from the ruling, warned of its implications with this understanding in mind: according to Savage, she stated that the ruling “offers a road map—more truly, a one-step instruction”, for people who try to use public funds to aid religion.
The Arizona tax credit law may seem harmless on the surface, but upon closer inspection it bodes ill for strict church-state separationists. The ULC Monastery has previously stated its support for strong church-state separation in its ecclesiastical proclamation of canon law, so we will be watching the events in Arizona closely to see if the ruling serves as a precedent for legislation in other states as well. As always, we want to know what you think. Was it a bad idea for the U.S. Supreme Court to uphold a law that remits tax money for donations to organizations that fund religious school tuition fees? Does it constitute government-subsidized religion?