Last week, the U.S. Supreme Court actually sided with the State of Arizona. Kind of.
In Arizona Christian School Tuition Organization v. Winn, the Court was asked to consider the constitutionality of Arizona’s tuition tax credit system. Under the current rules, Arizona taxpayers can donate to School Tuition Organizations and get a 100% tax credit. The STOs then distribute that donated money to pay private school tuition.
Because many of these STOs pay for students to attend religious schools, the process has been challenged on First Amendment grounds. Opponents, including the plaintiffs in Winn, say the state is effectively funding religious education.
This is a fight we’ve had before. The STOs are, in theory, a creative way around the whole church-state thing. Because taxpayers donate to STOs instead of paying taxes, the money never actually goes through government hands. And the STOs pay tuition for students, instead of just giving money to the schools.
But the system’s opponents don’t see a difference. If the money didn’t go to religious education, they argue, it would go to the government – therefore, it’s government money. And tuition waivers aid religious schools by sending them students.
The Supreme Court didn’t really take a side. Diving into the abstract issue of taxpayer standing, they left the tax credit policy intact without resolving its constitutionality. Call it a punt.
Punting in the Supreme Court is quite a bit like punting in football. They do it from poor field position, when there’s no realistic chance of scoring.
And the Court had pretty bad field position on this one.
If you take the First Amendment in one hand, and tuition tax credits in the other, the tax credits probably can’t stand. Aside from declaring an official religion, giving money to churches seems like the most obvious way to violate the Establishment Clause of the First Amendment.
But for the last 100 years at least, the government has immersed itself in an ever-more-complicated social welfare policy. Today, it’s deeply invested in areas like housing, health care and education.
But the government can’t manage all these things by itself, so it relies heavily on non-profits and other charitable organizations to help implement social policy. And many of these private sector partners have religious affiliations.
The argument raised in Winn, that tax credits constitute aid to religion, is probably the best route to overturning the tuition credit program. But it’s also a very dangerous route, from the perspective of our modern welfare system.
Imagine a blanket of social services covering every major need in our society, from youth camps to health care. Services provided by government, by secular non-profits and by religious charities.
Tuition tax credits are like a thread poking out of that blanket, just begging to be plucked. But any credible argument for overturning tuition wavers would have to prohibit tax-exempted church donations too. And then church-run charities.
If tuition tax credits aid religion by sending students to religious schools, what happens when Medicare pays for treatment at religious hospitals? The whole system could unravel.
If I were on the Court, I might punt on this one too.
Reach John at john.a.gaylord@asu.edu
