Supreme Court Should Deny Right To Sue In Church-State Cases, Obama Attorney Says

The Obama administration has urged the U.S. Supreme Court to overturn decades of legal precedent and curb the ability of taxpayers to sue over programs that divert tax money to religious schools.

During a Nov. 3 oral argument, Acting Solicitor General Neal Katyal told the justices that no taxpayer should have the right to sue over an Arizona program that grants tax credits for money given to private organizations that provide vouchers. Furthermore, he said the justices should overrule several previous decisions that say taxpayers have “standing” – the legal right to sue – when public funds are spent to further religion.

Several justices seemed taken aback by Katyal’s assertion.

Justice Elena Kagan asked Katyal if he believes a string of cases stretching back to the 1960s were wrongly decided. When Katyal said he did, Justice Anthony M. Kennedy broke in to say, “I just want to make sure I heard your answer to the – you said your answer is yes. In other words, you agree with Justice Kagan’s criticism of those cases and you said, yes, she’s right; those cases were wrongly decided.”

Katyal agreed that the cases were wrongly decided but insisted taxpayers might have other types of standing.

The dispute currently before the high court centers on an Arizona law that allows taxpayers to make donations of up to $1,000 to private organizations that in turn provide vouchers for private school tuition. The taxpayer receives a 100 percent credit for the donation.

Most of the schools taking part in the scheme are religious. Private religious schools have received $350 million in funding since the program took affect 14 years ago.

The solicitor general’s intervention in the case surprised some observers. President Barack Obama has said he opposes vouchers, but many observers see the Arizona plan as a type of backdoor voucher scheme.

Paula S. Bickett, an attorney representing the state of Arizona, argued that the plan is constitutional because the money in question isn’t really tax funding. Her position was received favorably by Chief Justice John G. Roberts and Justices Antonin Scalia and Samuel A. Alito, but Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor seemed skeptical.

Attorney Paul Bender represented a group of Arizona taxpayers who oppose the program. Bender told the high court that claiming the money doesn’t belong to the state is a ruse. Taxpayers, he said, have two choices: donate the money to a pro-voucher group or pay it to the state as part of their tax obligation.

But Kennedy, considered a swing voter, took issue with that argument. He likened the tax break to the discounts some restaurants give senior citizens and said a cashier could not tell a patron after applying the discount, “Be careful how you spend my money.”

Americans United filed a friend-of-the-court brief in the Arizona Christian School Tuition Organization v. Winn case urging the court to uphold taxpayers’ right to sue in religion funding cases such as this one. 

In remarks on PBS’s “Religion & Ethics Newsweekly” program, AU Executive Director Barry W. Lynn criticized the Obama administration for its stand in the case.

“It is truly shocking,” Lynn said, “that the Obama administration, through the solicitor general, has taken the position to deny access to the courts for Arizona taxpayers and to support what is unequivocally a direct funding of religious private schools.”