‘A Huge Victory for Choice’

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The way the world works — and, for that matter, the Supreme Court of the United States — the decision today in Arizona Christian School Tuition Organization v. Winn will be discussed as a case about taxpayer standing. The justices ruled, by a vote of five to four, that a group Arizona taxpayers lacked standing to challenge a tax credit that Arizona allowed to those spending a certain amount of money on contributions to religious schools. It would have allowed them to challenge Arizona if it had been spending directly on religious education. But it wouldn’t allow them to challenge a tax credit for others spending on religious education.

No doubt all sorts of liberals will be ventilating about how this comes close to endangering the right of people to go into court to protest how their taxes are spent. Of course, when people want to go into court to protest, say, their taxes going to abortion programs, or, say, their taxes going to redistributionist schemes, where will the liberals be then? The fact is that the left isn’t in this fight to make it easy to block government spending or tax credits. It is in this fight to make sure religious persons don’t have as easy a time on the tax front as non-religious persons.

So let the record show that there are those of us who see in Arizona Christian a different story than that of the crabbed tax issues involved. We tend to see it as a chapter — a happy chapter — in the struggle for religious freedom in this country. We have come through a long period in which religion has been in retreat before the long secular campaign in both our courts and our legislatures. What the Supreme Court did today is issue a ruling that moves toward leveling the ground, so that religious persons are less disadvantaged.

“[A] huge victory for proponents of parental choice in education” is how today’s news was characterized by the Alliance Defense Fund, a not-for-profit law firm that has played a leading role in the struggle to expand religious liberty. It represented a group called the Arizona Christian School Tuition Organization, one of more than 50 non-profit 501(c)(3) corporations that ADF said have been set up to distribute private donations in the form of scholarships to more than 27,000 students attending hundreds of private schools at the Grand Canyon State. It’s not just Christians who will benefit from this ruling. Here in New York the court’s decision was welcomed by, among others, the Agudath Israel of America, which represents fervently religious Jews, and like many other Jewish, Christian, and Muslim organizations, has an big stake in seeing that the playing field is not tilted against the religious schools.

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This cause has had its ups and downs of late. In 2002 the religious-freedom camp saw encouragement in the case of Zelman v. Simmons-Harris, when the Supreme Court said the use of tax vouchers for religious schools did not violate the Constitution. In 2004 it lost a big one in Locke v. Davey, when the court ruled that a state couldn’t provide a scholarship for a student who majored in religion.  In that case, The Great Scalia issued one of his famous dissents, writing: “When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.” At the end of his dissent in Locke  Justice Scalia issued a memorable warning.  “When the public’s freedom of conscience is invoked to justify denial of equal treatment, benevolent motives shade into indifference and ultimately into repression,” he wrote. “Having accepted the justification in this case, the Court is less well equipped to fend it off in the future.” In the ruling today, the Court has taken a step back from that precipice.


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