Advancing a Free Society

Supreme Silence

Monday, April 11, 2011

On April 4, 2011, the United States Supreme Court held in Arizona Christian School Tuition Organization v. Winn, by a narrow five-to-four majority, that Arizona taxpayers did not have "standing" to challenge a state law that gives tax credits for contributions made to School Tuition Organizations (STOs). These STO’s give scholarship money to students attending private schools—which include but are not limited to religious schools. The Arizona program stipulated that a "qualified school" could not "discriminate on the basis of race, color, handicap, familial status, or national origin." Noticeably absent from this statutory list was discrimination on grounds of religion and sex. Now students who attend schools segregated on both these lines remain eligible to receive benefits, even though antidiscrimination laws commonly prohibit discrimination on grounds of religion or sex.

This particular statute gave umbrage to a group of taxpayers who challenged its constitutionality on the ground that its tax credit created an illegal establishment of religion in violation of the First Amendment. On the merits, the case raises a set of challenges that are well worth resolving. Unfortunately, the Supreme Court never delved into those challenges. Instead the majority of the justices parried on the ground that the taxpayers did not have "standing" under the Constitution to challenge what they claim are public subsidies to private religious institutions. The taxpayers in this case did not have standing because they themselves were not harmed.

Continue reading Richard Epstein at our sister site Defining Ideas