Constitution Daily

Smart conversation from the National Constitution Center

You be the Judge: should taxpayers pay for religious private schools?

April 12, 2011 by Donald Applestein Esq.


In a recent decision, the Supreme Court ruled, 5-4 that Arizona taxpayers lacked “standing” to contest the state’s law which gives Arizona taxpayers a dollar-for dollar tax credit for donations made to private “student tuition organizations” (STO’S). Most of the beneficiaries of the STO’s attend parochial schools. The suit challenged the program as an unconstitutional way of supporting religious schools. the Constitution, courts hear “cases and controversies.” In order to sue, plaintiffs must have “standing” – that is, they must show that they will suffer a particular harm and that only a court ruling can provide relief.

Generally, taxpayers can not contest the way in which governments spend tax revenues. However, under a 1968 a ruling – Flast v. Cohen – there is an exception for suits contesting government programs providing financial aid to religion.


Writing for the majority, Justice Kennedy (joined by Chief Justice Roberts, and Justices Alito, Scalia, and Thomas) first found that there was a clear distinction between taxpayer suits challenging direct government spending to assist religion and tax credits that indirectly provide assistance that ultimately aid parochial schools.

The majority found that the money going to STO’s was not government revenue but rather, private donations to scholarship organizations, most of which just happened to assist parochial school students. The fact that taxpayers were making the decision about how to use their money also very important to the majority.


In her first dissent, Justice Kagan wrote, “Taxpayers experience the same injury for standing purposes, whether government subsidization of religion takes the form of a cash grant or a tax measure.” A hypothetical she posed was if the state wanted to subsidize ownership of crucifixes, would it make any difference if the state bought the crucifixes and distributed them, or if the state reimbursed purchasers with a check or if taxpayers received a tax credit for the amount of the purchase? She wondered why the tax credit method should justify a different result. Isn’t the end result the same?

You be the judge:

• Should method of subsidization (here, tax credits) close the courthouse door to taxpayers?

• How else can taxpayers test the constitutionality of these tax credits other than in the courts?

• Since tax revenues are finite, and if they are reduced by tax credits granted for subsidizing religious activities (thus reducing overall tax revenues), doesn’t that harm taxpayers who benefit from government programs such as police, fire, highway construction and, public education?

Flickr photo by user Micheal 1952.


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