The Supreme Court today debated an Arizona law that allows state residents to receive tax credits for contributions to nonprofit organizations. The groups, in turn, give scholarships to public school students who want to attend private schools.
The Arizona legislature passed the law in 1997 to encourage greater educational choice for disadvantaged elementary school children. Any taxpayer can participate, but parents are forbidden from earmarking a donation for their child.
The law has come under intense criticism, however, from some Arizona taxpayers who say, in practice, most of the nonprofit organizations -- called School Tuition Organizations (STO's) -- that receive the funds only provide aide to students at religious schools.
The taxpayers filed a lawsuit arguing that the law is a violation of the Establishment Clause of the Constitution prohibiting government actions from favoring one religion over another. The taxpayers argue that the policy funnels state money to religious schools.
The justices will have to decide two issues: first, whether the taxpayers have the legal right, or "standing," to bring the case. If the court finds the taxpayers are sufficiently harmed by the policy, it will then decide the constitutional merits of the case.
In most cases, taxpayers do not have the right to challenge government expenditures, but the court has granted exceptions to that rule in cases regarding the Establishment Clause.
Acting Solicitor General Neal Katyal argued in court today that the taxpayers in this case do not fit into such an exception because "not a cent" of their own money goes to fund religion.
But he was challenged by some of the more liberal members of the court.
Justice Sonia Sotomayor brought up the argument of the taxpayers: "Their point is that this tax money does belong to the state" she said, "... either you pay it to the state or you use it for this purpose."
Justice Elena Kagan asked him whether the court had been wrong in prior cases to allow taxpayers to challenge similar programs.
Experts on the Establishment Clause are carefully watching how the Court will deal with the issue of standing.
"If they throw the case out on standing," professor Ira C. Lupu of George Washington University Law School said, "that will be one more move in the direction for shrinking the right of taxpayers to complain."
When the justices turned to the constitutional merits of the case, Paula S. Bickett, a lawyer for the state of Arizona, argued that the law is constitutional.
"Arizona's tax credit does not violate the Establishment Clause, " she argued, "because it's a neutral law that results in scholarship programs of private choice."
But Paul Bender, a lawyer for the taxpayers, challenged Bickett's assertion, arguing that the program cannot qualify as "neutral" because some of the STOs are religious in nature and discriminate on the basis of religion.
"Our claim is that state money is being given to the beneficiaries of a state spending program on the basis of religion," he argued. "It's a claim about discrimination in the distribution of these stated funds."
Bender was challenged by Chief Justice John Roberts. "How does this take the beneficiaries' religion into account when the program works ... exactly the same way if it's a non-religious school?" Roberts argued. "The state doesn't care whether it goes to a religious school or not."