In a 5-4 decision, the U.S. Supreme Court on April 4 held that state tax credits for donations to organizations offering scholarships for private schools, including religious schools, do not violate the First Amendment’s establishment clause (“Supreme Court upholds tax break for Arizona religious schools,” Los Angeles Times, Apr. 5). The ruling in Arizona Christian School Tuition Organization v. Winn is another step in weakening the separation of church and state, no matter how it is being rationalized.
To understand why requires stepping back to 1997 when Arizona allowed private citizens to set up charitable organizations known as school tuition organizations that accepted donations from private parties, or in some cases from corporations. Donors received credit against their state taxes for the full amount of their contributions. Individual donations were limited to $500 per year. The STOs then awarded scholarships for K-12, taking financial need into account and not limiting the scholarships to any one school. As it turned out, most of the 50 or so schools are Christian affiliated, although a few are Jewish, and a few more are secular. This meant that as much as 92 percent of the money went to religious schools.
The plan was challenged by several taxpayers in the state because they claimed it put government in charge of financing religious education. From the start, the plaintiffs faced a steep uphill battle. In 2002, the Supreme Court ruled in Zelman v. Simmons- Harris that Cleveland’s voucher program was constitutional because parents - not schools - were the recipients of the vouchers. How they spent the vouchers was strictly up to them.
Writing for the majority in the present case, Justice Anthony Kennedy said basically the same thing: “When Arizona taxpayers choose to contribute, they spend their own money, not the state’s money.” He went on to say that a tax credit is “not tantamount to a religious tax or tithe.” To think otherwise “assumes that income should be treated as if it were government property even if it has not come into the tax collector’s hands.” This is the kind of legal hairsplitting that breeds cynicism.
The decision will surely embolden other end runs around the establishment clause. Florida, Georgia, Indiana, Iowa, Pennsylvania and Rhode Island already have similar plans on the books, and at least 11 other states are considering following suit. Parents have the right to send their children to religious schools for whatever reasons they want. But they shouldn’t expect tax dollars to pay for the cost of doing so. I’m afraid that slowly but surely the wall between church and state will come tumbling down.