A Strong Dissent from Justice Kagan

Justice Elena Kagan picked up Justice Stevens' Establishment Clause torch in a powerful dissent in Arizona Christian School Tuition Organization v. Winn. Arizona taxpayers challenged a state tax program that gave tax credits to school tuition organizations that discriminated on the basis of religion when they awarded the tuition benefits. The Court ruled that the taxpayers lacked standing in an obscure decision by Justice Kennedy, who wrote that there is a constitutional difference between tax credits and government expenditures so that taxpayers may claim Establishment Clause violations about the latter but not the former. Justice Kennedy's distinction seems to fly in the face of the normal tax rule that foregone revenue is the same as an expenditure.

Justice Kagan's dissent, joined by Justices Ginsburg, Breyer and Sotomayor, complained about the "novel" and "arbitrary" distinctions made about tax law and charged that the decision "enables the government to end-run Flast's guarantee of access to the Judiciary." The decision, she wrote, would "diminish the Establishment Clause's force and meaning," and "damage[] one of this Nation's defining constitutional commitments."

Justice Stevens was the strongest defender of the Establishment Clause on the Court, so it is good to see that Justice Kagan has take up his mantle. She uses a great analogy to drive home her point that the Establishment Clause requires taxpayer standing if it is to be enforced:

Imagine that the Federal Government decides it should pay hundreds of billions of dollars to insolvent banks in the midst of a financial crisis. Suppose, too, that many millions of taxpayers oppose this bailout on the ground (whether right or wrong is immaterial) that it uses their hard-earned money to reward irresponsible business behavior. In the face of this hostility, some Members of Congress make the following proposal: Rather than give the money to banks via appropriations, the Government will allow banks to subtract the exact same amount from the tax bill they would otherwise have to pay to the U. S. Treasury. Would this proposal calm the furor? Or would most taxpayers respond by saying that a subsidy is a subsidy (or a bailout is a bailout), whether accomplished by the one means or by the other? Surely the latter; indeed, we would think the less of our countrymen if they failed to see through this cynical proposal.

Thus we should think less of Justices Kennedy, Roberts and Alito for failing to see through this cynical proposal.