Here's a question with a seemingly obvious answer: If I invite you to give $500 to a group (and you do), and then I pay you back the $500, whose money is really going to that group? Yours or mine? Most people would agree that it's mine and you're just a middleman conduit — a way to hide the true source of the funds. But the conservative majority on the U.S. Supreme Court is not "most people."
Earlier this month the high court heard arguments in Arizona Christian School Tuition Organization vs. Winn, a case that at its core asks this very question.
The issue is whether church-state separation is violated when a program that religiously discriminates is funded through a dollar-for-dollar tax credit. Justices Antonin Scalia, Samuel Alito and Anthony Kennedy all sounded as if they believed that the taxpayer "donation" was a private act, not a government subsidy that would invoke the Constitution. This is deliberate blindness to the truth.
Arizona's tuition scholarship program works by giving taxpayers the option of diverting up to $500 per individual and $1,000 per couple of their state income taxes to state-certified "School Tuition Organizations." Taxpayers can't give this money to any other good cause or interest, only to STOs. In turn the STOs select parents to receive funds for their child's private school tuition.
The STOs are regulated by the state, but Arizona allows them to discriminate openly. Many will only provide tuition assistance to parents who send their children to specific schools teaching a certain religious faith.
As the opponents of the program point out, this is like the government giving money to a food program run by a religious group that will only feed fellow believers.
Arizona's private school voucher program ends up costing the state plenty. Last year more than $50 million was redirected out of the state treasury into tuition scholarships.
Conservative lawmakers love this kind of scheme because it advances a series of long-standing goals: It diverts students from the public schools, religiously indoctrinates them, and directs state subsidies to some of their favorite constituents: private school parents.
At this point you might be wondering, Why STOs? Why not give parents vouchers directly from the state? After all, in 2002 — in one of the worst rulings in recent times — the Supreme Court approved of the constitutionality of state-funded private school vouchers, even when the money was used to pay for a religious school education.
But Arizona's state Constitution, like that of some 36 other states, including Florida's, specifically bars state funds from underwriting religious schools. Direct vouchers that fund religious education are not an option. Convoluted legerdemain must be resorted to.
Florida uses the same trick under a program where corporations get dollar-for-dollar tax credits for money they give to scholarship funding organizations or SFOs. The SFOs then award scholarships to families who want to put their children in private schools.
However, Florida's program differs from Arizona's in that the SFOs cannot tell scholarship beneficiaries they must attend a particular school, and scholarships may only go to low-income families. Still, the church-state problems remain. A significant percentage of the over $100 million in diverted tax money goes to fund tuition at religiously affiliated schools, forcing taxpayers to financially support religious indoctrination.
That's why this case has wide implications. Think about it. If directed tax credits can be used to bypass church-state restrictions in the religious school context, there is no effective limit. Using tax credits, states or localities could underwrite the building of churches, synagogues and mosques, or pay the salaries of religious leaders.
But the conservative members of the court sounded ready to give this the green light. During oral argument Justice Alito suggested that he viewed the tax credit like a tax deduction for giving to a religiously affiliated college or university.
It's not at all the same. Arizona's state income tax maximum is under 5 percent. A person who deducts a $500 religious donation has made a real contribution. Their tax liability is reduced by less than $25, while under the tax credit scheme they get back the full $500. Also, charitable tax deductions go for supporting a whole range of groups. The state hasn't picked out one special cause, like in Arizona's case.
These kinds of voucher programs are sold as a way for low-income students to escape failing public schools. But in Arizona, a majority of scholarships have been going to children already attending private or religious school. At one time, rich parents were even coordinating their tax credits to benefit one another's children.
Disgracefully, the Obama Justice Department has entered the case on behalf of the state of Arizona. It should be blamed for all the church-state mischief that is sure to follow.