James Madison would be rolling over in his grave if he knew that his magnificent thesis on why the government should never be allowed to direct financial support to religious education was twisted to undermine future such claims.
In a 5-4 ruling Monday, conservatives on the U.S. Supreme Court barred taxpayers from challenging an Arizona tax credit scheme designed to divert public money from state coffers to religious schools. The ruling effectively eliminates taxpayer standing in federal court to challenge even the most blatant and discriminatory government support of religion, when it's done through the targeted use of the tax code.
I can almost see Justices Antonin Scalia and Clarence Thomas — who are religion-by-the-sword types at heart — dancing a little jig as they slam shut the courthouse door to church-state litigants, while opening the public fisc to religion.
The only bright spot was a vigorous dissent, that was part history lesson, delivered by Justice Elena Kagan and joined by her other three liberal-wing colleagues. Her discussion of Madison decimated Justice Anthony Kennedy's majority ruling that claimed the founding father's writings support his view: that the Constitution only limits government's direct expenditures for religion, and not the use of targeted tax benefits that accomplish the same goal.
The case of Arizona Christian School Tuition Organization vs. Winn challenged an Arizona private school tuition program that gives taxpayers a dollar-for-dollar state income tax credit of up to $1,000 per couple when they direct donations to privately run "student tuition organizations." Those organizations then use the diverted tax money to fund scholarships often exclusively at religiously affiliated schools. One such STO says its program goal is "to further Christian education ... for the benefit of Christian school students and their families."
Since its inception in 1997 more than $350 million in tax money has been diverted from the public treasury, with one STO urging donations with this come-on: "imagine giving (to charity) with someone else's money. ... Stop imagining, thanks to Arizona tax laws you can!"
What makes James Madison relevant is that Arizona's program is similar to one proposed in Virginia in the 18th century that Madison — who is known as the architect of the Constitution's religion clauses — forcefully denounced. Madison's famous Memorial and Remonstrance Against Religious Assessments railed against a proposed tax levy to aid teachers of Christian religion.
Kennedy claims that Madison's Remonstrance was only concerned with government extracting and spending money for religious activities in violation of a taxpayer's conscience. But as Kagan points out, the Virginia proposal looked more like the Arizona model: Taxpayers were to direct their payments to Christian societies of their choosing. Conscientious objectors could opt out of subsidizing religion entirely and have their funds directed to a proposed common school fund for the support of general education.
Even with this accommodation to nonbelievers and allowing each taxpayer to choose according to his religious conviction, Madison called the scheme "a dangerous abuse of power," and a form of compulsory religious contribution. It never passed.
"(T)he Virginia Assessment is just like the Arizona tax credit," Kagan writes. "Although both funnel tax funds to religious organizations (and so saddle all taxpayers with the cost), neither forces any given taxpayer to pay for the subsidy out of her pocket."
But because of this feature, Kagan continues, the court's majority says that taxpayers have no injury and therefore no standing to sue — even as Madison saw great harm.
The consequence of the court's ruling, as Kagan suggests, is that it gives legislatures a "road map" to insulate the financing of religion from court challenge. She offers extreme examples, such as a state choosing to reward Jews for their piety to the tune of $500 per year, to be claimed on their tax returns in lieu of an annual stipend. Or a state subsidizing the ownership of crucifixes by authorizing a tax credit equal to the price paid.
Does it really matter how this kind of support is structured? Of course not. But that truism will have to wait for a more intellectually honest court — one that actually values Madison's vision.