Court ruling on school choice hints at Obamacare position 

A lawsuit filed by the ACLU against school choice in Arizona was dismissed by the U.S. Supreme Court in a 5-4 ruling that advocates claim is a significant victory for supporters of freedom of education and religious liberty.

The decision in Arizona Christian School Tuition Org. v. Winn rejected an effort to end Arizona residents’ ability to claim a state tax credit on their contributions to a private-school tuition organization, even though the state’s constitution bars direct government spending on religious institutions.

The private schools receiving the donations are both religious and secular institutions.

The tuition organization was represented by the Alliance Defense Fund (ADF), which argued that the program doesn’t violate the Establishment Clause because the choice of whether to support a religious school was being made by private citizens, not the government. ADF also argued that the plaintiffs lacked standing to file the suit.

The Supreme Court agreed that the plaintiffs lacked standing. Article III of the Constitution requires a plaintiff to suffer a personal injury distinct from the general public. The Court has always held that not approving of how your tax money is spent is not a personal injury.

The only exception came from Flast v. Cohen, a controversial 1968 case — the most liberal year in Supreme Court history — that allowed people to sue if government spends money supporting religion.

Justice Kennedy wrote for the Court that, “continued adherence to … Article III maintains the public’s confidence in an unelected but restrained federal judiciary.” He then explained how the Court has restricted Establishment Clause standing to cases where the government is spending money on religion, and cannot extend it to tax credits that private individuals choose to use.

This decision was indeed a win for school choice and for religious liberty. It also left many similar questions to elected leaders, rather than to life-appointed judges.

What raised eyebrows in the decision, however, was the passionate dissent Justice Elena Kagan wrote, which was joined by Justices Sonia Sotomayor, Stephan Breyer and Ruth Bader Ginsburg.

“Today’s decision devastates taxpayer standing in Establishment Clause cases … And by ravaging Flast in this way, today’s decision damages one of this nation’s defining constitutional commitments,” the dissenters argued.

That’s quite a statement, given that the religious exception on taxpayer standing was created in 1968, and far from “devastating” or “ravaging” freedoms, it leaves them exactly where they already were prior to today’s decision.

Kagan’s words confirmed that President Barack Obama appoints Supreme Court nominees who are firmly to the left on the judicial philosophy spectrum. This is especially true in this case involving tax credits, because Justice Kagan’s reasoning, it might be unconstitutional to claim a tax deduction for donating money to a church or other religious 501(c)3 organization.

This also has implications for Obamacare’s individual mandate. Kennedy and the four conservative justices appear to believe that an individual citizen’s money is theirs, not the government’s, unless the state takes it through taxes.

Examiner legal contributor Ken Klukowski is a research fellow at Liberty University School of Law and senior fellow for religious liberty at the Family Research Council.

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Ken Klukowski

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