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Argument preview: Re-thinking religion cases

After an eight-year hiatus, the Supreme Court is returning to the issue of states’ authority to provide tuition aid to parents who use the money to send their children to religious schools.  In the center of the new review is an Arizona program that has been under constitutional challenge for a generation and has been to the Court twice before, but that has not yet led to a ruling on its validity.  Although some involved in the case are asking the Court to re-think basic constitutional principles, there is a chance that the Court may once again not reach the merits.

At 10 a.m. on Wednesday, the Court will hold a one-hour argument on a pair of consolidated cases involving the Arizona program — Arizona Christian School Tuition Organization, et al., v. Winn, et al. (09-987) and Garriott v. Winn, et al. (09-991).  Through an unusual arrangement, the tuition organizations will not have a lawyer at the podium.  The 30 minutes on Arizona’s side will be split evenly between Acting U.S. Solicitor Neal K. Katyal, for the federal government as amicus (who will have rebuttal time), and Paula S. Beckett of Phoenix, Arizona’s chief counsel for civil appeals, for the state.  Arguing for the challengers will be Paul Bender of Phoenix, a law professor at Arizona State University.


The disappointment of many parents in what they see as the failings of public schools, especially in the Nation’s urban areas with budgets under constant stress, has led to the “school choice” movement.  Parents, of course, have had all along the option of private education — provided they could afford it.  But a dominant claim of “school choice” proponents is that public funds should be available to support education for all children, not just those going to public schools.  And, because many private schools are parochial schools, often closely affiliated with a church, synagogue or mosque, public financial aid raises constitutional questions.

Eight years ago, in the case of Zelman v. Simmons-Harris, the Supreme Court answered some of those questions.  In that case, from Cleveland, Ohio, the Court by a 5-4 vote upheld a program of scholarship vouchers or tutoring grants that a student could use at any public or private school that the parents chose.  The majority said the program served the legal purpose of helping poor children in a failing public school system with their education, and functioned as purely a matter of private, parental choice.  It was, the majority said, entirely neutral as to religion.

Left on the Court now, from that 2002 lineup, are Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas from the majority and Justices Stephen G. Breyer and Ruth Bader Ginsburg from the dissent.   The chances are that those three from the majority in Zelman voted to hear the new Arizona cases, and picked up at least one other necessary vote to do so.

Nine years before the Zelman decision, a group known as the Arizona School Choice Trust was set up to award scholarship money — raised from private donors — to low-income families to help them afford private education, if that is what the parents chose.  In 1997, five years before Zelman, Arizona’s legislature picked up the idea from the Trust, and passed the Arizona Tuition Tax Credit program.  The program provided a dollar-for-dollar credit on state taxes — up to $500 a year for an individual and up to $1,000 for a married couple — for contributions to scholarship organizations.

Here is how it works: Individual taxpayers in the state donate money to private, non-profit groups known as “school tuition organizations (STOs).”  Such an organization must use at least 90 percent of its funds to provide scholarships or grants to students going to private schools, up through high school.  An STO is barred from providing scholarships to schools that discriminate on the basis of race, color, handicap, family status, or national origin, but they may provide such aid to reach parochial schools affiliated with a religious organization. An STO, in fact, can limit its grants only to parochial schools, and several do.  Parents apply directly to the STOs for tuition aid, and the organization must consider their financial need in deciding whether to provide a grant.  The choice of school is the parents’ to make.

When the donating taxpayer files a state tax return, each dollar of donation up to the ceiling amount provides a dollar of credit against any tax owed.  The contributions can be made by any taxpayer in the state, whether or not the taxpayer has a student in school.  Parents may not make contributions earmarked for their own child or for a friend’s child.

After one year of the program’s operation, contributions totaled only about $1.8 million — probably because its constitutionality was already under challenge in court.  By its tenth year, however, the STOs were taking in some $54 million in donations.  The total each year has hovered around that amount.

Before the program had gone into effect, a group of Arizona taxpayers challenged it in state court.  The Arizona Supreme Court in 1999 rejected the challenge — a “facial” challenge to the law as written, rather than as it operated in practice.  The Supreme Court in October of that year refused to hear the taxpayers’ appeal, and the program then went into effect.

After the program had been in operation for a year, a different group of state taxpayers — the Winn group — filed a new constitutional challenge, this time in federal court.  Originally, their lawsuit was both a facial challenge and an as-applied challenge; they have since abandoned the facial challenge.  The lawsuit contended that the program, in operation, was not working as the state Supreme Court had assumed that it would. the three largest STOs, they contended, only gave scholarships to students at religious schools.  All of the schools getting tuition aid from those STOs, according to the lawsuit, are religious in their teaching missions.

A federal judge threw out that case, finding it barred by the federal Tax Injunction Act, forbidding courts to block state tax collections.  The Ninth Circuit Court disagreed, and so did the Supreme Court — in the 2004 ruling in Hibbs v. Winn — thus clearing the way for a ruling on the merits.

Back in District Court, the challengers lost, with a federal judge upholding the program as a neutral program of private choice, relying upon the Supreme Court’s 2002 Zelman decision.  The Ninth Circuit, however, again overturned the District Court.  The Circuit Court first ruled that the Winn taxpayers had “standing” to sue to challenge the program, on the theory that the state was using its taxing and spending power to promote religion in violation of the Constitution’s First Amendment Establishment Clause.  In that part of its decision, the appeals court relied on the Supreme Court’s 1968 ruling in Flast v. Cohen, permitting federal taxpayers to sue to challenge a program where a legislature directly approves spending money on grants to a religious institution.

Moving on to the merits of the Arizona program, the Circuit Court did not strike it down directly, although it left the clear impression that the program could not withstand constitutional analysis when the merits were confronted.   If the challengers proved their claims at trial, the appeals court said, the state program delegated to taxpayers a choice that moved the funds dominantly toward religious schools.  Parents who would prefer to send their children to a non-religious private school, the Circuit Court suggested, might not be able to get the tuition aid from the few STOs that do not provide aid only to parochial students, and thus would likely be led to choose a religious school in order to assure a private education for their children. The probable effect, it said, was to advance religion unconstitutionally. (The full Circuit Court refused a plea by the state to rehear the case, but eight judges dissented from that denial.)

Petitions for Certiorari

The state of Arizona on Feb. 18 took the case on to the Supreme Court, arguing that the program should be upheld on the merits (case 09-991, the Garriott case).  STOs filed two petitions on that same day — one on the merits (09-988), and one (09-987) limited to the question of whether state taxpayers had any right to bring their challenge (“standing” to sue).  The challengers, that second petition contended, cannot show that the program involves any spending of state funds, could not show that they were harmed in any way by the flow of the money, and were actually challenging only the decisions of other taxpayers as to where they donated their own private funds.  (If the Court were to agree that the taxpayers had no right to bring their lawsuit, of course, the case would be over, and the Court would not rule on the program’s validity.)

The state’s petition argued that the Circuit Court ruling directly contradicted the Supreme Court’s Zelman decision on the Cleveland voucher program, and ran directly contrary to the Arizona Supreme Court’s decision rejecting the Winn challengers’ claims.  Although the Circuit Court had technically sent the case back to District Court for further action, it actually left the judge there “with no choice but to declare the program unconstitutional as applied, the state said.  There is actually no dispute, the state added, on how the program functions in practice.   The educational opportunities of thousands of Arizona children were being jeopardized, according to the state.

The STOs, also relying on Zelman, joined the state in arguing that the Circuit Court ruling was wrong, and contended that the decision cast a pall over other “school choice” tax credit programs already in operation elsewhere, and would discourage other states from setting up such programs. And, in their separate petition on the “standing” issue, the STOs argued that the tax credit program not only did not involve any public funds, but actually resulted, in practice, in saving the state money on public education.  In that appeal, the organizations relied on the Supreme Court’s 2007 decision in Hein v. Freedom From Religion Foundation, which it read as significantly narrowing the concept of taxpayer “standing” that the Court had allowed in Flast v. Cohen.

Kathleen M. Winn and the three other Arizona taxpayers involved urged the Court not to hear the case, arguing that the Ninth Circuit decision did not conflict with any other Circuit Court or state supreme court ruling, was in a preliminary stage, and involved only “an unusual Arizona program that uniquely combines a failure to serve a significant secular purpose with a lack of religious neutrality.”  The opposition brief strove to draw a clear distinction between Arizona’s approach to “school choice” and that of Cleveland in the Zelman case.  The program in Arizona, it argued, involves “pervasive religious discrimination.”

The challengers responded briefly to the claim that they lacked “standing,” saying that, if that were so, the Court would not have allowed taxpayers to pursue a number of major Establishment Clause cases over the years.

On May 24, the Court granted review of the STOs’ petition on the “standing” issue (09-987) and the state’s petition on the merits of the tuition tax credit (09-991), and consolidated them for one-hour of oral argument.  The STOs’ petition defending the tuition tax credit (09-988) remained on hold while the other cases moved forward.

(Before the Court scheduled oral argument, the challengers suggested that the Court might want to consider returning the case to lower courts, to examine the impact of more recent changes in the laws governing the tuition tax credit.  The defenders of the program resisted that suggestion, and the Court allowed the case to go forward.  A disagreement later arose on who would get argument time before the Court in the case.  The Court resolved that dispute on Oct. 12, giving the state and the U.S. Solicitor General’s office 15 minutes each, leaving out the STOs.  It refused to enlarge the time to include the STOs.)

Merits Briefs

Although the question of taxpayer “standing” had the potential to bring the case to a complete halt, the state chose in its merits brief, filed July 30, to leave that issue to the STOs.  The July 30 merits brief by the STOs took on both the “standing” issue and the validity of the program, although it made the right-to-sue issue its main focus.  A third merits brief in favor of the program was filed that same day by two Arizona parents — Glenn Dennard and Luis Moscoso, whose children get scholarships from the Arizona School Choice Trust, joined by the Trust itself.  (Technically, they are treated as respondents, too, but in support of the state and the other STOs.)

The state’s merits brief, at its core, seemed to suggest that the Court need only apply the Zelman precedent, and hold that the Arizona tuition tax credit “is a program of true private choice because any state aid that reaches religious schools is separated by four levels of private, individual choice.  Private individuals or groups set up an STO, the STO makes a private decision to provide scholarships to religious schools, taxpayers donate to an STO, and parents apply for a scholarship.  “No objective observer,” the state contended, “would attribute the decisions of the private individuals who participate…to the state.”

There is no evidence, the state contended, that the legislature had any religious motive for enacting the program.  The program, in fact, does not even mention religion, it noted, and no one can show that the state has tried to cover up “obviously religious motives.”  And, as it is being carried out, it serves entirely non-religious state purposes, according to the brief.  As in the Zelman case, it asserted, the Arizona program falls clearly on the side of “true private choice.”

Addressing the “threshold question” of the taxpayers’ “standing” to sue, the STOs’ merits brief argued that the taxpayers’ have made arguments that ignore every taxpayer standing case “decided both before and after Flast,” and would, if adopted, require “expanding Flast well beyond its narrow holding.”

The taxpayers, that brief said, do not even claim that the state has taken money from them and spent those tax dollars under the program.  They will be out of pocket nothing, and their only grievance, the brief added, is that they disagree with the policy adopted by the Arizona legislature.   As the program works, the STOs asserted,”the tax credit does not appropriate any money or levy a tax,” and it makes no connection between the individual taxpayers who sued and their claim of injury and the government’s action.  Even if the taxpayers were to win the case, it added, it is not clear that their complaint would actually be remedied.

The parents and the School Choice Trust, in their merits brief, argued that, until the Ninth Circuit ruling at issue came down, “not a single court in the last 27 years had struck down a tax credit or deduction as unconstitutional under the Establishment Clause.” (The 27 years date back to the Supreme Court’s 1983 ruling in Mueller v. Allen — a decision that upheld a state law permitting parents to take a state tax deduction (rather than a credit) for tuition paid to any private school, on the theory tjhat it was one of exclusive private choice.)  They defended the Arizona program as having “multiple layers of true private choice.”

The Justice Department joined in the case as an amicus supporting Arizona, on both the argument that the state taxpayers lack “standing” to bring their challenge, and on the constitutionality of the program.  On the taxpayers’ status, the government’s merits brief, filed Aug. 6, argued that “they have suffered no cognizable injury.”  The state of Arizona, it contended, has simply chosen to “forego some particular tax collections from individuals who make private and voluntary donations to STOs.”  That does not harm taxpayers, it asserted.  The brief also argued that the Arizona program is very different from the one at issue in Flast v. Cohen.

“The Court,” that brief argued, “has never found that some taxpayers have standing to challenge a tax credit provided to other taxpayers.”  And, it went on, the Court has certainly not done so for a program like Arizona’s, where “every dollar that flows to religious organizations does so as the result of private choice.”  Finding “standing” here, it summed up, would wrongly extend the Flast exception to the ban on taxpayer “standing.”

On the merits, the government argued that the Arizona program “has neither the purpose nor the effect of advancing religion.”  The Court, it noted, had several times found that programs of private choice passed the First Amendment religion clause test, because they were neutral as to religion, and the money had flowed to a religious organization through private choice.

Finally, the Department brief said that Arizona was not to blame if some parents opt not to seek scholarship aid from STOs that only provide it to students at religious schools.  That was those parents’ private choice, and thus there is no constitutional violation attributable to the state, it asserted.

The four Arizona taxpayers pursuing the challenge, in their merits brief filed Sept. 15,  necessarily had to defend both facets of the Ninth Circuit ruling — in order to keep their case alive, and to solidify the Circuit Court’s rationale suggesting that the program cannot withstand constitutional challenge.  The brief undertook to link the state of Arizona very closely to all key facets of the tuition tax credit program, seeking to leave the Court with the clear impression that this was anything but a scheme of pure private choice.

The brief opened with a detailed description of the program, characterizing its details as strong evidence that the program is actually “a government spending program” with state tax revenues drawn from taxes paying for the scholarships.   It chose to begin with the program details because, as it argued, “once the character of the program as a government program is understood, it is clear both that [the taxpayers] have standing as taxpayers to challenge it, and that the program violates the Establishment Clause.”

The move to have the program seen as a government spending program was intended to bring it within the Flast v. Cohen exception to the usual prohibition on taxpayer standing, since the Supreme Court in that ruling relied upon a spending rationale.

The way that the program actually functions, the taxpayers contended, is that “parents may be denied state scholarship aid because of their religion, or because they refuse to send their child to a religious school.  The Establishment Clause does not permit government benefits to be restricted in that manner.”

In the customary argument-counterargument of amici filings, the state and the STOs clearly emerged with a numerical advantage — 17 on their side, compared to three in favor of the taxpayers.  It is in the amici filings in favor of the Arizona program that the Justices will find the boldest suggestions for re-thinking prevailing constitutional doctrine to govern the outcome of government programs that aid religious institutions.

The boldest argument at least casts doubt on a doctrine that is usually traced to the work in this field by retired Justice Sandra Day O’Connor — that is, the view that the Constitution forbids the government to engage in a program that sends the message to a “reasonable observer” of official “endorsement” of a particular faith or faith practice.   If that concept is retained, the Becket Fund for Religious Liberty suggested, it at least should have no bearing on any government program that it involved funding.  The test, according to that brief, depends upon the concept that a program that provides aid to religion sends a “single message” of “endorsement,” which is never true of a funding program.  The test can only make sense, it added, if applied to a government program that involves some “expressive action.”

The Court is also urged by the Association of Christian Schools and Liberty Counsel, two conservative advocacy groups, to abandon the doctrine that a government program is constitutionally flawed if public aid flows to a “pervasively sectarian” institution.  “A plurality of this Court,” the brief said, “has said [this doctrine] should be buried as a tarnished relic of a bygone era.”

Some 13 states also join in supporting Arizona.

On the side of the taxpayers are a host of liberal religious organizations, an array of humanist or secularist groups, and several education advocacy organizations that expressed concern that programs like Arizona’s will harm public education in the state by “siphon[ing] off a growing amount of state tax revenue, bolstering the funding for — and driving up the tuition of — private schools, at the same time that Arizona cuts funding for its public schools.”


The Court has several times hinted that state taxpayers have “standing” to bring lawsuits based solely on their status as taxpayers, but it has never explicitly ruled that they do.  This will be the first challenge for the Court as it confronts the Arizona program, partly because that is a question of jurisdiction; if there is no one with “standing” to sue, there is no case, constitutionally.  But that also will be the first challenge because the Court has been growing increasingly skeptical of “standing” doctrine, edging steadily toward reducing the options to sue in federal court.

The Court’s Hein decision suggested strongly that a majority of the Court may be, in fact, deeply skeptical of taxpayer “standing” when public programs that aid religious organizations are being challenged.  That leaning may well have increased with the growing conservatism of the current majority on the Court.

If the Court, in examining the merits of the Arizona program, were to find itself deeply divided, then the “standing” question would loom as a strong alternative, denying that status to state taxpayers and thus ending the case without a decision on the constitutional question.  The merits question is not an easy one because, for all of the attempt to fit the Arizona program precisely into the parameters of the Cleveland program in Zelman, there are distinct differences, at least in emphasis.

The challengers have made strenuous effort to cast the program as one that involves government spending — period.  That may be something of an exaggeration, but it is not entirely implausible.  On the other hand, the defenders of the program  have insisted that the program is nothing more than a scheme of private choice piled on private choice.  Those are stark alternatives, and choosing either would be a definite way to decide the merits, but the Justices may well not see the alternatives as vividly as the advocates do.

Recommended Citation: Lyle Denniston, Argument preview: Re-thinking religion cases, SCOTUSblog (Nov. 1, 2010, 9:55 PM),