WASHINGTON — An Obama administration lawyer defended an Arizona program that funds religious schools with state tax credits and urged the Supreme Court on Wednesday to block advocates of church-state separation from suing over such arrangements.
The argument ran into sharp and skeptical questioning from the court's liberal justices, including President Barack Obama's two appointees to the court.
At issue was the constitutionality of a 13-year-old Arizona law that allows its taxpayers to direct a $500 tax credit to private organizations, which in turn can fund students to enroll in exclusively religious schools.
A federal appeals court ruled the plan unconstitutional because it uses tax money to support the teaching of religion.
Acting U.S. Solicitor General Neal Katyal joined Arizona's lawyers in defense of the program and urged the justices to rule that no one could even go to court to challenge an alleged subsidy for religion.
The First Amendment bars laws that involve "an establishment of religion," and the court has said that means states may not directly subsidize religious schools. In recent years, the court's conservative wing has moved toward making it harder for critics to challenge aid-to-religion programs.
The Arizona case has the potential to be a far-reaching one if the court were to agree with Katyal and broadly shield the government from legal claims that it is wrongly diverting public money to aid religion.
Justices Sonia Sotomayor and Elena Kagan — the two Obama appointees — joined Justices Stephen Breyer and Ruth Bader Ginsburg in objecting to Katyal's argument.
Ginsburg asked if anyone in Arizona could go to federal court and sue for an alleged violation of the First Amendment.
"No," Katyal replied. "I don't think any taxpayer could challenge it."
Kagan questioned Katyal's contention that taxpayers cannot sue over public aid to religion, saying it would have knocked out most of the court's landmark decisions involving the separation of church and state.
Paul Bender, a former Justice Department lawyer who represented the Arizona taxpayers who sued over the state's law, said the justices should strike down the program. He stressed that the program involves a tax credit, not a charitable deduction. "This is not your money," he said, but money that is owed in taxes.
Katyal's intervention in the case drew a sharp rebuke from Americans United for Separation of Church and State.
"It's a shame that the Obama administration has taken the wrong side in this case," said the Rev. Barry Lynn, executive director of the group. "The Arizona scheme diverts scarce tax dollars to religious schools."
He cited surveys that found 92 percent of the money that goes to the private organizations that receive the tax credit subsidies is used to pay tuition at religious schools.