Patterico's Pontifications

11/4/2010

Althouse Confused by Coming Ninth Circuit Smackdown

Filed under: General — Aaron Worthing @ 9:03 am



Regular readers know by now that if a decision is appealed to the Supreme Court from the Ninth Circuit, especially if Judge Reinhardt voted with the majority below, you can assume 90% of the time that the Supreme Court is hearing the case because the Ninth Circuit got something wrong and Supreme Court needs to correct it.  For some reason, however,Ann Althouse thinks that Arizona Christian School Tuition Organization v. Winn is a tough question.  In that case, taxpayers were allowed to get a tax credit of up to $500 if they donate to a School Tuition Organization (STO).  The STO was then free to spend the money however it sees fit, with the limitation that it must go to scholarships for students.

(Look close at the word "public.")

Ann Althouse thinks “this case has a substantive Establishment Clause issue — whether government is subsidizing religion — and a threshold issue about standing” asking in the headline to her post, “[i]f the government gives tax credits for donations that may go to religion, is that essentially the same as government spending on religion?”

Well, I respect Professor Althouse a lot, but this case is not even close.  Even if you pretend that receiving a tax credit for a donation to a religious institution is the same as the government handing money directly to a religious institution, the Supreme Court has pretty much already decided the issue.

I mean more than a few of you probably already noticed that this sounds a lot like vouchers.  And the Supreme Court has declared that a voucher scheme is constitutional, in Zelman v. Simmons-Harris (2002), saying:

our decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools…, and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals….  [W]here a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.

So even supposing a tax credit is the same as the government donating to them directly, this is not even a close case.  And please note, it is not even relevant that most of the money will go to religious STO’s.  The Supreme Court has repeatedly stated that even if most of the money goes to religious institutions, that is okay.  In Witters v. Wash. Dept. Services for the Blind, for instance, Justice Marshall wrote that

a State may issue a paycheck to one of its employees, who may then donate all or part of that paycheck to a religious institution, all without constitutional barrier; and the State may do so even knowing that the employee so intends to dispose of his salary.

Based on that reasoning, it upheld the provision of aid to a blind student to help him go to divinity school, because the program was offered neutrally to all blind students, whether they chose a secular education or not.  Likewise in Zobrest v. Catalina Foothills SD the government was allowed to offer free sign interpreters to deaf students even if they chose to go to parochial schools.  And of course in that case 82% of the schools benefitting from the vouchers in Zelman were parochial in nature, a fact that had no bearing on the Supreme court’s ruling.  The only issue to the court was the reason why that 82% of the money went to religious schools, namely that it be driven by choice.

And this case seems like a pretty straightforward application of the principle.  Private individuals can give to either religious or secular STOs and be reimbursed up to $500 by a tax credit for doing so.  These private organizations can spend the money on religious or non religious education as they so choose.  So like in those cases above, the government is giving out the money neutrally without regard to whether the STO is a religious or non religious institution.  It is no different from giving money to your church, for which you receive a tax deduction, that might in turn to go help a church-affiliated school.  This was reflected in oral argument with a sarcastic exchange with Scalia, giving an assist to the STO’s counsel:

JUSTICE SCALIA: I assume that there is a tax deduction [in the Arizona Tax Code] for contributions to churches?

MS. BICKETT: Yes, Your Honor.

JUSTICE SCALIA: And many churches discriminate on the basis of religion, don’t they.

MS. BICKETT: Yes, they do.

JUSTICE SCALIA: Does that pose a constitutional problem, do you think?

MS. BICKETT: No, Your Honor.

So how did the Ninth Circuit find against the STO?  By torturing the language of prior rulings in a manner that makes one wonder if they are misrepresenting the case law on purpose, writing:

We nevertheless hold that if plaintiffs’ allegations are accepted as true, Section 1089 violates the Establishment Clause by delegating to taxpayers a choice that, from the perspective of the program’s aid recipients, “deliberately skew[s] incentives toward religious schools.” …  In practice, plaintiffs allege, the choice delegated to taxpayers under Section 1089 channels a disproportionate amount of government aid to sectarian STOs, which in turn limit their scholarships to use at religious schools. The scholarship program thus skews aid in favor of religious schools, requiring parents who would prefer a secular private school but who cannot obtain aid from the few available nonsectarian STOs to choose a religious school to obtain the perceived benefits of a private school education. Accordingly, Section 1089’s delegation to taxpayers operates to deprive these parents, as the program’s aid recipients, of “`genuinely independent and private choices’ ” to direct the program aid to secular schools. Unlike indirect aid programs the Supreme Court has upheld, Section 1089 is not a “neutral program of private choice,” and a reasonable observer could therefore conclude that the aid reaching religious schools under this program “carries with it the imprimatur of government endorsement.”

So do you see the move they are making? They are pretending the relevant private persons making a choice are the parents.  But the act is all about giving all taxpayers—whether parents or not—the choice to donate to religious or non-religious STO’s.  Whether those STO’s discriminate on the basis of religion is a matter of their own private decisions.  And its worth noting that anyone can set up an STO.

So while the STO might create an incentive to other persons to attend religious schools, the relevant question under the precedents is whether the taxpayer has an incentive to donate to a religious STO.  And the answer is clearly “no.”

So with respect to Professor Althouse, this is not even a close case.  There are interesting issues in terms of standing, but I have little doubt about the outcome of this case.  They will either knock it out entirely on standing, or reach the merits and point out that the Ninth Circuit got it wrong, again.

[Posted and authored by Aaron Worthing.]

28 Responses to “Althouse Confused by Coming Ninth Circuit Smackdown”

  1. I can claim a tax deduction for any charitable gift I give directly to my church. No one is saying that is an establishment clause violation. Why should this case be a violation?

    XBradTC (a0c2c4)

  2. Ann Althouse is smart and pretty!

    happyfeet (a55ba0)

  3. By torturing the language of prior rulings in a manner that makes one wonder if they are misrepresenting the case law on purpose,

    Of course they are ! I assume that was a rhetorical point you were making. Well, at least the 9th is at home with Jerry Brown again. I wonder what they will do when the lights go out. And the sewers stop working. I moved to the mountains last summer on the theory, which I learned in a college fraternity, that s**t flows downhill.

    Next summer should be interesting.

    Mike K (568408)

  4. By the 9th’s logic, government employees who donate part of their salary to a church would be violating the Establishment Clause. After all, that money came from the government, right?

    Some chump (4c6c0c)

  5. I can claim a tax deduction for any charitable gift I give directly to my church. No one is saying that is an establishment clause violation. Why should this case be a violation?

    Well, the argument is that this isn’t a mere tax deduction, but an actual dollar-for-dollar tax credit.

    It basically comes down to whether the money that constitutes the “tax credit” is:

    (a) taxes that you owe the government, but the government gives back to you

    (b) taxes that you don’t owe the government in the first place

    If it is (b), the claim for violating the Establishment Clause pretty much goes out the window.

    AW talks a lot about how the Arizona program runs in theory — i.e., he says it CAN benefit secular and nonsecular private schools. In practice, it seems to overwhelmingly aid religious schools; the top 3 STOs specifically give money ONLY to religious schools. That, I think, is a huge sticking point that can’t be easily dismissed.

    But at the end of the day, I think the Ninth Circuit will be overturned, but not because the scheme gives taxpayers an incentive to assist a religious STO. Unlike AW, I don’t think that’s the salient question. Rather, I think it will be overturned because there’s not a strong enough nexus between the state action (the tax credit) and the religious aid ($$$ to religious schools) to constitute an Establishment Clause violation.

    Kman (d25c82)

  6. don’t you have to spend the money out of your own pocket first ?

    so if the government chooses to allow you keep more of your own money later then there is clearly a seperation of church and state …

    Jeff (488234)

  7. Thanks for letting me know about Zelman. Ironically, it’s the case we’re discussing in my Religion and the Constitution class today.

    Ann Althouse (97204f)

  8. The fact that nobody has challenged that federal dollars are used for students to go to colleges like Notre Dame, says that money that goes to the child, for an education, isn’t such a clear Establishment Clause issue.

    Neo (7830e6)

  9. ZOMFG!!!! You freaking wingnutz are trying to shove your THEOCRACY down our throats !!!!

    JD (a30317)

  10. Ann

    Presuming its really you, I didn’t mean any disrespect. I certainly didn’t want to imply that you didn’t know about zelman. i am just puzzled that you think this is a hard case. To me it is easy, and its more of a case of the crazy 9th circuit needing parental supervision.

    Kman

    > Well, the argument is that this isn’t a mere tax deduction, but an actual dollar-for-dollar tax credit.

    In which Kman argues that there is a large difference between keeping your money, and getting [it] back.

    > AW talks a lot about how the Arizona program runs in theory — i.e., he says it CAN benefit secular and nonsecular private schools. In practice, it seems to overwhelmingly aid religious schools;

    Proving you either didn’t read or didn’t understand what the case law said.

    Or you are really Judge Reinhardt.

    Mike K

    Actually i am always hesitant to accuse the circuit courts of deliberately refusing to follow precedent and twisting it. But this does seem particularly egregiuos.

    Happy @2

    Agreed, but i hate to break your heart, but she is married.

    Neo

    i don’t say this to put you down, but your comment is so vague i am literally not sure if you are for or against the Arizona program. can you clarify?

    [edited after the fact by myself. –Aaron]

    Aaron Worthing (e7d72e)

  11. Proving you either didn’t read or didn’t understand what the case law said.

    The “case law” to which you refer were cases where the government aid reaches religious schools only as a result of the genuine and independent choices of private individual.

    In other words, if the government aid coincidentally ends up benefiting religious schools as a result of the independent choices of private individuals and parents, that’s one thing. That’s not what is happening here. Here it is the STOs making that call.

    Kman (d25c82)

  12. AW – how long has this sophist clown followed you around?

    JD (681598)

  13. Aaron, Ann is touchy sometimes. I think she’s a real pleasure to read, but sometimes she doesn’t respond very clearly. Her response seems to suggest she is aware of this case and was taking it into account when saying this wasn’t a clear cut case.

    Or maybe she’s just being friendly. It’s hard to say. She’s smart and insightful and sometimes it’s very surprising she is a law professor (I realize this is a meme on her blog). I don’t mean this as insulting to her, but I think she’s more interested in generating discussion than analysis. This is a very nice way of calling her a troll, which is fair, since she’s drastically nicer to read and deal with than a common troll.

    Take Kman for example.

    Loquacious D (b54cdc)

  14. I know she’s married but I remember one day I spent an absurd amount of time watching her chase a bug on the youtube.

    charming!

    happyfeet (a55ba0)

  15. Kman – if the individual is choosing the STO, then isn’t the STO acting as a proxy for an individual?

    Also, ISTM that while a deduction is clearly money you don’t owe the government, a credit is money the government is giving you. (This is clear if it’s a refundable credit, but even if it isn’t, I think it makes more sense to conceptualize it that way).

    aphrael (e0cdc9)

  16. Kmart is still trying to figure out how to claw-back all of the WW-2 GI-Bill money that went to pay tuition, R&B, and books at places like Notre Dame, and at seminaries from sea-to-shining-sea.

    In fact, all Federal Ed Aid should be in the form of vouchers issued to individual parents and/or adult students. Let the Ed Establishment compete for that money.

    AD-RtR/OS! (e86162)

  17. Also, ISTM that while a deduction is clearly money you don’t owe the government, a credit is money the government is giving you.

    Well, that’s the argument made by the challengers to the Arizona law, but the conservative justices on the Supreme Court pounced on it, saying: How can the tax credit — which money you don’t pay to the government — be considered ‘government money’?

    I have to side with Scalia and company on that.

    Kman (d25c82)

  18. Kman

    > The “case law” to which you refer were cases where the government aid reaches religious schools only as a result of the genuine and independent choices of private individual[s].

    And this is a case where the alleged government aid reaches religious STO’s only as the result of the genuine and independent choices of private individuals. And in those cases, whether the net result is a lot of money going to religion is beside the point, so long as the government is not creating an incentive to put it toward the religious STOs.

    > Here it is the STOs making that call.

    Which is also a private actor, also not incentivized to give to parochial schools.

    JD

    Since around 2002-03.

    Loq

    I am honestly unsure if she is offended or not. Sarcasm can be hard to detect on the net. But oh well, if she is.

    > This is a very nice way of calling her a troll, which is fair, since she’s drastically nicer to read and deal with than a common troll.

    Well, on some levels a lot of professors have this quality. But I wouldn’t call her a troll. I think the distinction is she does this to get people thinking. Trolls do this for more masturbatory reasons. But some stuff in law is beyond reasonable discussion. I mean we have a concept in law called black letter law, meaning that the rules are so set we don’t expect there to be any disagreement. For instance, it is black letter law to say the state can’t segregate schools according to race. But its more iffy on whether they can according to gender.

    Now this 9th circuit case is not quite black letter wrong, but its really close. I would give them a 90% probability of being overturned.

    Aaron Worthing (e7d72e)

  19. i don’t say this to put you down, but your comment is so vague i am literally not sure if you are for or against the Arizona program. can you clarify?

    Why isn’t federal scholarship money for college students considered a strain on the Establishment Clause ? It directs funds to possibly religious organizations like Catholic colleges.

    The reason has always been explained that since the money goes to the “student” to fulfill their educational goals the final recipient of such funding is not important. The “student recipient” is the recipient of record.

    Neo (7830e6)

  20. There really is only one Supreme Court joke and it goes like this:

    Opening argument by Appellant:
    May it please the court, we are appealing a decision of the Ninth Circuit … and we have other arguments …

    SPQR (159590)

  21. That’s a good description. She’s hiding the ball. She’s not a troll in the way a troll is a bad thing.

    Loquacious D (b54cdc)

  22. As I understand it, the law does not require the contribution to be religious. There is nothing stopping a person from giving to a secular organization. The state has no say in the matter.

    I would actually have a problem if it DID say that the gift must be secular (especially since that is the only option the state schools offer), but what is “establishment” about neutral?

    Kevin M (73dcc9)

  23. btw, i am surprised no one has a comment about the picture…

    Aaron Worthing (e7d72e)

  24. Maybe we take personal hygiene education more seriously than you do, Aaron.

    Loquacious D (b54cdc)

  25. In fact, all Federal Ed Aid should be in the form of vouchers issued to individual parents and/or adult students. Let the Ed Establishment compete for that money.

    And the government party will fight that to the death, since one of the inevitable impacts will be to reduce the number of members in the Democrat (more accurately, Government) Party.

    iconoclast (38828b)

  26. There’s lots of room for good faith disagreement, I think, because the SCOTUS has been very inconsistent in its Freedom of Religion cases over the last several decades, and in particular in Establishment Clause cases.

    Example: on the very same day in 2005, by 5/4 votes with Justice Breyer being the cross-over, the Court approved a display of the Ten Commandments outside the Texas Capitol building but disapproved a Ten Commandments display in several Kentucky county courthouses.

    Of course, one can have very strong views as to how a particular case ought to be decided, and depending on the particular issue, there may or may not be very close prior precedents that would seem to be controlling. But then again, I’d have been pretty confident, before 2005, that the same precedent which governs state capitol buildings would also govern county courthouses — and that very reasonable supposition would have been proved wrong, for reasons the Court hasn’t very satisfactorily explained. Given the Court’s unpredictability in this area of the law, I don’t think anything can be confidently assumed to be a “slam dunk.”

    Beldar (05bf33)

  27. (Aaron, I also think your headline is perhaps more inclined to give offense than you intended.)

    Beldar (05bf33)

  28. Let’s say the legislature has the following choices on how to limit an education-charity tax credit:

    1) The state specifies that the donee must use the funds for strictly secular education.

    2) The donor may specify whether the donee must use the funds for strictly secular education.

    3) The state specifies that the donee may use the funds for either secular or religious education

    4) The donor may specify whether the donee must use the funds only for religious education.

    5) The state specifies that the donee must use the funds only for religious education.

    6) The donor may specify which religion(s) the donee may use the funds for, but the education must be religious-based.

    7) The state specifies that the donee must use the funds only for education by particular religions.

    Obviously #7 is a state establishment of religion. Number 6 and #5 are probably establishment but there is some wiggle room if you look hard enough.

    Number 4 seems to lack a state action but is perhaps not even-handed.

    The Arizona case seems to be number 3, which has no state input of any kind.

    Are numbers 1 & 2 better from a 1st Amendment POV, or do they establish secular belief above religious belief? I think the latter, but evidently some think the “separation of church and state” requires the state to thwart religion.

    Kevin M (73dcc9)


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