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.
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.]