from God Experts Blog Why have a law if no one can enforce it?
The Christian press generated enough energy this week to power a small city, gloating over a 5-4 Supreme Court decision allowing the continuance of an Arizona program to subsidize parochial schools through tax credits. The Christian Post, for example, chortled that “The U.S. Supreme Court ruled on Monday that dollar-for-dollar income tax credits for donations to private religious schools are constitutional.”
Either these Christians are too dumb too read (which I don’t think is the case), or they are deliberately misleading the public. For the Supreme Court most emphatically did not rule the Arizona religious subsidy program constitutional. The Court did something even worse: it said it didn’t give a damn whether the program was constitutional or not, because no mere taxpayer has the right to challenge it in court.
For many decades, there has been no question but that direct government appropriations to fund religious education in parochial schools violate the First Amendment rule that “Congress shall make no law respecting an establishment of religion.” In 1997, politicians in Arizona, anxious to curry favor with the minority who decline to send their children to public schools, tried a different way to skin the same cat. Instead of paying money directly to the schools, they would give taxpayers a dollar-for-dollar state tax credit, up to $500, for contributions to “scholarship funds” that in turn pay the money over to private schools – including those specializing in teaching children that I deserve to burn in hell because I don’t worship Jesus Christ. In some years, as much as 92% of the scholarship funds were paid to religious schools.
Shell Game
What exactly is the difference between this funding method and the more direct method of state appropriation? The state of Arizona is out exactly the same amount of money either way. The God experts receive exactly the same amount of money either way. The answer is, there isn’t any difference. This isn’t rocket science. Every level of government, including the state government of Arizona, views “tax expenditures” exactly the same way it views direct appropriations, because they achieve exactly the same result.
The Arizona scholarship organizations themselves certainly view the situation that way. One of them advertises that “With Arizona’s scholarship tax credit, you can send children to our community’s [religious] day schools and it won’t cost you a dime!” Another urges potential donors to “imagine giving with someone else’s money. … Stop imagining, thanks to Arizona’s tax laws, you can!” Since 1998, Arizonans have “given” away nearly $350 million of someone else’s money.
Nor did the Supreme Court say there was any difference, from a constitutionality standpoint. That would have been problematic, since it has so often said exactly the opposite. Even Justice Thomas, part of the 5-4 majority, once wrote that “A tax exemption in many cases is economically and functionally indistinguishable from a direct monetary subsidy.” What the majority said, though, was that even though a long line of cases holds that the First Amendment is so important that taxpayers have the right to challenge these kinds of religious subsidies in court, now all of a sudden they don’t have that right anymore, at least if legislators use the tax expenditure technique rather than the appropriation technique. At least fourteen different times, federal courts have heard cases challenging whether particular tax expenditures violate the First Amendment; from now on, they won’t be able to do so.
Now that the nasty impediment of potential taxpayer lawsuits has been eliminated, God experts can get truly creative with their tax expenditure schemes. Shrinking clergy? Not a problem. Just lean on the legislature to provide a dollar-for-dollar tax credit for donations to pay God expert salaries, and you’ll have to build new seminaries to accommodate all the applicants for these soon-to-be-high-paying jobs. You can build them, of course, with funds provided by the state’s new tax credit for donations for seminary construction. With last week’s Court decision, there isn’t a single thing any taxpayer who believes this violates the First Amendment can legally do about it.
The Obama Connection
Who’s to blame? The cynical can point out that all five justices in the majority are Catholic, while all three non-Catholics voted to retain prior law and allow cases like this to be heard. (Sometimes, the cynical are actually right.) The most important thing to know about this case, though, is that the Obama administration lined up squarely on the side of trivializing the First Amendment by repealing taxpayer rights to enforce it. In fact, at oral argument, Obama’s Solicitor General blithely admonished the court that numerous landmark First Amendment cases in the past had been wrongly decided, because taxpayers never should have been allowed to bring them in the first place! This administration never met a God expert it didn’t like (other than Jeremiah Wright), and is thrilled to be able to win points with the Catholic hierarchy by shoving a few billion dollars its way. Would the 5-4 outcome have been different had Obama’s Solicitor General made a forceful argument that the First Amendment is actually rather important, and that taxpayer suits are the only practical away to assure its enforcement? I don’t know, but I would sure like to visit some parallel universe and find out.
Government should stay out of the religion business
If you’ve read these articles before, you’re probably wondering “When is he going to get to the history part? He always has a history part.” Justice Kennedy, who wrote the majority opinion, provided the hook I need by dragging in a discussion of James Madison and his 1785 “Memorial and Remonstrance.” Although it has no force of law, Madison’s plea to the Virginia Assembly has been cited repeatedly in First Amendment cases, because it sheds light on the thinking of the man who was the driving force behind it.
The Assembly was considering a tax levy to support teachers of the Christian religion; taxpayers were free to direct payments to Christian societies of their choosing. Madison opposed the bill, because he said that government should not “force a citizen to contribute three pence only of his property for the support of any one establishment.” Madison’s argument was sufficiently persuasive that Virginia went in precisely the opposite direction, enacting instead the famous Statute of Religious Freedom.
Kennedy claimed that the Arizona law is different, because it does not force anyone to contribute to religion. An Arizona taxpayer is free to send his $500 to the state, to finance roads and prisons, rather than to devote it to brainwashing children about the evil of gay people. Hence, according to Kennedy, Madison would have had no problem with the Arizona law.
Reading history, rather than spouting it
A look at the actual history, though, torpedoes Kennedy’s argument. As Justice Kagan points out in her dissent, the bill Madison was opposing did not force non-believers to support religion. It explicitly allowed taxpayers to specify that their funds should instead be used for the construction and maintenance of county schools, then as now largely secular institutions. Yet Madison fought against it anyway, because he did not believe it proper for government to be subsidizing religion. As Kagan put it:
[T]he Virginia Assessment is just like the Arizona tax credit. Although both funnel tax funds to religious organizations (and so saddle all taxpayers with the cost), neither forces any given taxpayer to pay for the subsidy out of her pocket. Madison thought that feature of the Assessment insufficient to save it. By relying on the selfsame aspect of the Arizona scheme to deny the Plaintiff’s claim of injury, the majority betrays Madison’s vision.
Madison’s point, and the point of the First Amendment, is that government should stay out of the promotion of religion business, period. So long as we give politicians like Obama a free pass to pander to God experts without being called on it, Madison’s vision will grow more and more unattainable.