The Wall Street Journal has an excellent house editorial on yesterday’s ruling in Arizona Christian School Tuition Organization v. Winn. Some extended excerpts (emphasis added):
The Supreme Court’s big school choice decision yesterday is notable mainly for its insight into the progressive mind. To wit, no fewer than four Justices seem to believe that all wealth belongs to the government, and then government allows citizens to keep some of it by declining to tax it.…
Taxpayers rarely have the standing to sue over the government’s spending choices, but this suit was hung on the slender 1968 Warren Court precedent of Flast v. Cohen, which created a narrow exception in establishment law cases. If one Justice had flipped, it would have created a broad new avenue of legal attack against school choice, as well as for lawsuits against everything from Medicare payments to Catholic hospitals to student loans for Jewish colleges.
Writing for the majority, Justice Anthony Kennedy ruled that the litigants don’t have standing because they weren’t harmed, and also that they don’t have standing under Flast because tax credits and spending programs are different.
“A dissenter whose tax dollars are extracted and spent knows that he has in some small measure been made to contribute to an establishment in violation of conscience.” But a tax credit “is not tantamount to a religious tax or tithe.” To think otherwise, Justice Kennedy continues, “assumes that income should be treated as if it were government property even if it has not come into the tax collector’s hands.”
And what do you know, four Justices assume precisely that. Both of President Obama’s nominees joined the four dissenters, and newcomer Elena Kagan delivered a fiery 24-page apologia for that position …. [O]ne question for Justice Kagan: Is the government also establishing religion by not imposing a 100% tax rate on churches, mosques and synagogues?
With one more vote, the current Court’s liberal minority would surely ban school choice involving any religious schools.