Supreme Court dismisses Arizona school tax credit case for the wrong reason

The Supreme Court ruled Monday in the case of Arizona Christian School Tuition Organization v. Winn Et al. that tax payers couldn’t sue Arizona for allowing a tax credit used to fund private sectarian schools in the state. While I disagree with the ruling since tax payers should have standing to sue – it is their money – I don’t think supporters of separation of church and state would win the case anyway.

The Freedom From Religion Foundation wrote:

In a 5-4 decision, the Supreme Court ruled today that taxpayers do not have standing to challenge an Arizona law that provides for taxpayer-subsidized religious instruction. Arizona offers a dollar-for-dollar tax credit (up to $500) to citizens who contribute to groups that offer scholarships to children attending private schools. This tax credit overwhelmingly is used to support private religious instruction, which FFRF contends violates the Establishment Clause. The tax credits are estimated to divert over $50 million per year from the state to scholarship organizations.

Neither does the Arizona tax credit force any particular taxpayer to pay the subsidy directly, but it is still a government subsidy. Kagan remarks, “By relying on the selfsame aspect of the Arizona scheme to deny the Plaintiffs’ claim of injury, the majority betrays Madison’s vision.”

With this Supreme Court we can’t Winn

The Court said that because the money was a tax credit and not a direct appropriation then tax payers had no standing to sue.

Personally I am with the late Justice Hugo Black who once said of the First Amendment:

The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.

I don’t believe in tax credits or direct appropriations because either mixes government and religion.

However that is not how this country operates.

Most tax issues involving religion makes sure not to favor a single sect and to have rules that prevent the money being used for direct proselytizing. (Even though we all know the money is co-mingled to support the worship function of churches)

The court case that Justice Black made is ‘no law means NO law’ comment, Everson v. Board of Education, said that states providing school bus service to sectarian schools didn’t violate the Constitution since the service was available to all children – public and private.

That’s why I doubt those of us who support separation of church and state would have won Arizona Christian School Tuition Organization v. Winn.

The tax credit was open to all and it isn’t the state’s fault that 90% of the money went to sectarian schools. As long as it wasn’t a direct appropriation then there isn’t a constitutional problem – based on current case law.


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  1. sbj1964
    April 9, 2011

    Loop holes Christian legislators write in the books. They know the Law ,They know the Constitution. Yet at every chance they have they seek to undermine the spirit of the law with the Legalneese of lawyers .They do it to promote the Christian agenda. This fly's in the face of the Constitution of the United States. And yet they pat themselves on the back for they're cunning in undoing our country.It is a shame on us all.It is said " Evil prevails when good people do nothing" . Stand ,and be recognized ! I am SPARTACUS ! Atheist Rise !

  2. Lawrence J. Kramer
    April 13, 2011

    I agree with your analysis on the merits – the credit is inoffensive. I also agree with you and Justice Black, which means that SOMEONE must have standing to contest an ALLEGED violation of the Establishment Clause.

    A subtle distinction needs to be observed here. The proper "standing" concept says, in effect, that you cannot merely complain that a government action violates the Establishment clause. You must claim that a government action, in violation of the Establishment clause, exalts someone else's metaphysics over your own. You have to say "This promotes deism, and I'm an atheist," or such thing. It's not clear that the plaintiffs in this case made that claim. As mere "watchdogs," they are barred by traditional notions of standing. But as victims of an attempt to Establish a church, they should, I think, have standing.

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