Access Denied: Supreme Court Slams The Courthouse Door In The Face Of Church-State Litigants

Thanks to the Supreme Court, Americans now have limited options to utilize the courts to keep government officials in check and ensure they uphold the separation of church and state.

Thanks to yesterday’s decision by the U.S. Supreme Court, it will now be a lot easier for the government to fund religion.

The high court, in a 5-4 decision in Arizona Christian Tuition Organization v. Winn, ruled that taxpayers have no right to challenge tax credits, exemptions or deductions that support religious organizations.

What does that mean? It means that if government officials allot tax dollars to fund a church, synagogue, temple or mosque, a taxpayer has every right to challenge this funding in court as a violation of the First Amendment and the separation of church and state.

But if government officials set up a program where contributions to these religious institutions are offset by a 100 percent tax credit, a taxpayer has no right to challenge that funding in court, despite the fact that it has the same result: tax dollars are going to fund religion.

That’s what the state legislature in Arizona was banking on. They wanted to set up a voucher program in Arizona, but they were blocked by the Arizona Constitution, which includes strong protections barring tax funding of religious and other private schools.

To get around that, a former state legislator Mark Anderson concocted a tax scheme as a way to create a backdoor voucher program. The program he created allowed taxpayers to contribute to so-called school-tuition organizations (STOs), which use the “donation” to pay for tuition for students at religious and other private schools. Those who donate to the STOs receive a 100 percent dollar-for-dollar tax credit in return.

The program primarily benefited religious schools. In 2009, 91.4 percent of the $52 million dollars collected went to religious schools. Since the scheme passed in 1997, $349 million in taxes has been diverted from the state’s General Fund to the “scholarship” program – money that could have gone for improvements to the public school system.

Yet the U.S. Supreme Court said taxpayers in Arizona have no right to challenge this tax scheme in court. Talk about loopholes.

I’d like to think that the court (and the Obama administration, which advocated denying taxpayers’ right to sue), were duped.

They somehow missed the glaringly obvious result of their actions: that Americans will now have limited options to utilize the courts to keep government officials in check and ensure they uphold the separation of church and state.

But unfortunately, I know this is the exact result majority of the justices wanted. This court has been slowly taking steps to chip away at the wall of separation and yesterday’s decision certainly was a huge blow.

All Americans – on the right and the left – should be disappointed. This is not about where you stand ideologically, but whether you believe every American has a right seek justice when they feel their rights have been violated.

That’s all we can ask for – a chance to make an argument and have our day in court. Sadly, a majority of justices has taken away that option, leaving open only a narrow window to challenge such outrageous tax schemes.

For more details on this ruling, take a look at AU Senior Litigation Counsel Alex J. Luchenitser’s blog post on the American Constitution’s Society’s website.