Although nothing coming out of this Supreme Court should really surprise me anymore, the shear chutzpah of the reactionary justices on the Court is sometimes shocking.
On April 4, 2011, the United States Supreme Court, in a five to four decision typical of the divide between Justices who respect the Constitution and Justices who don’t, refused to hear a petition by Arizona taxpayers who claimed that the state had unconstitutionally subsidized religion through its tax system. Since the inception of the plan in question, the cost to Arizona’s citizens has been nearly $350,000,000.00 in diverted tax revenue. The majority opinion by Justice Kennedy said that taxpayers lacked standing because the funding of religion they challenge comes from a tax credit, rather than from a tax appropriation.
In the case of Arizona Christian School Tuition Organization v. Winn, the taxpayers complained in the District Court of Arizona that Section 43-1089 of the Arizona Code violated the establishment clause of the First Amendment to the Bill of Rights of the Constitution as made referable to the states by the Fourteenth Amendment to the Constitution. As readers may or may not be aware, the First Amendment to the Constitution is the first of the original “Bill of Rights” which softened the Constitution enough to allow for a balancing between the interests of states versus the federal government, and the balancing of interests between any government, whether it be state or federal, on the one hand, and the rights of individuals on the other. These fundamental liberties guaranteed by the Bill of Rights are so entirely fundamental that it’s hard to imagine how the Constitution could even have been contemplated without their inclusion, yet the debate over whether or not to include them at all was bitter and created quite the divide.
The Arizona act allowed Arizona taxpayers to obtain a dollar for dollar credit of up to $500.00 per person for contributions to school tuition organizations that use what would otherwise be state income tax revenues to pay tuition for students at private schools. Of course, some of these schools discriminated on the basis of religion in selecting students. To put it bluntly, some of these schools are religiously governed, teach religiously, and teach, often, a biased view of others possessed by the religion governing the institution in question.
The fact that these schools discriminated inspired the suit. The District Court dismissed the suit as jurisdictionally barred by the Tax Injunction Act, a federal statute. The Court of Appeals reversed the District Court’s decision and the United States Supreme Court agreed and affirmed in the case of Hibes v. Winn, in 2004.
On remand, the Arizona Christian School Tuition Organization and other interested parties intervened. The District Court once more dismissed the suit, this time for failure to state a claim. Once again, the Court of Appeals reversed. It held that respondents had standing to sue under a case called Flast v. Cohen, from 1968, and that the respondents had stated a claim that the Arizona statute violated the establishment clause of the United States Constitution.
The Court granted “certiorari,” which essentially means the right to put the dispute before it, and found that the respondents had no standing under Flast because Arizona had made no “appropriation” of funds.
In essence, what the Court was arguing was that since the Arizona government had not affirmatively undertaken itself to set aside the finds, it had not, in essence, “acted.” The fact that it was allowing citizens to act nonetheless with the government’s imprimatur, however, should have meant the same logical thing. How the tax money is diverted shouldn’t matter; that it’s being diverted for the benefit of religion is what matters. It’s obvious, and, no doubt, was obvious to the reactionary judges who pretended not to see it.
Justice Scalia, joined by Justice Thomas, said that taxpayers ordinarily do not have standing to challenge federal or state expenditures that allegedly violate the Constitution. They acknowledged that the Flast case created an exception for taxpayers raising establishment clause challenges – religious challenges – to government expenditures. They also said the majority would “repudiate,” or invalidate if it could, the “misguided decision,” referring to Flast, which, of course, allows taxpayers to challenge religious spending.
Yes, you read that right. They don’t want citizens to question tax actions by the government which suggest the government is violating the anti-establishment clause of our Constitution. If that frightens you, it should. It’s nothing less than an attempt to establish religion in government after all. It’s theocratic fascism, and it’s coming.
Justice Kagan in his dissent said that cash grants and targeted tax breaks are means of accomplishing the same governmental objective: to provide financial support to select individuals or organizations. Taxpayers who oppose state aid of religion have equal reason to protest whether that aid flows from one form of subsidy or from another. Either way, “The government has financed the religious activity” and so either way, Justice Kagan said, “taxpayers should be able to challenge the subsidy.”
If I am in care of a toddler and I push the toddler in front of a moving train, I’ve committed murder. No less have I committed murder, however, if all I do is allow the toddler to enter the train tracks of his own accord, fully aware that the train is coming. That is how clear the meaningless distinction between an affirmative “appropriation,” on the one hand, and a passive “voluntary” diversion, on the other, is.
When the day comes that America ceases to be what it is and becomes just another thuggish theocracy where one dominant religion imposes it’s power on everyone else, where individual freedom is a memory, when oppression and suppression of political religious and minority opinion is no longer the exception but the rule, when searches and seizures without constitutional protection predominate, and when law enforcement and military authorities are forgiven any sin in the cause of “security,” we’ll have no one to blame but ourselves.
This is why judicial appointments by presidents are so important. Once a Supreme Court Justice is appointed, they can either do tremendous damage for their entire career, or do tremendous justice. The Court is presently doing tremendous damage in support of corporations, banking interests, insurance interest, overzealous law enforcement and now, establishment of religion.
At this civil rights law firm, we decry this decision and hope that something of this blog has sunk in when it comes time to cast your next presidential vote. You are not just voting for a president you are voting for your posterity’s legal future. You’re voting to protect what it means to be an American.