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The Supreme Court's Erosion of Religious Freedom

by Paul Rasor, Center Director

Recent U.S. Supreme Court decisions have continued a trend that has significantly eroded constitutional protection for religious freedom. One sign of this trend is the Court's increasingly narrow view of both the Establishment and Free Exercise Clauses of the First Amendment. But equally troubling is the apparent determination by the Court's conservative majority to keep lawsuits challenging government support of religion out of the federal courts. The Court's opinion in Arizona Christian School Tuition Organization v. Winn, decided this past April, all but closes the courthouse door.


Winn involved the complex and sometimes esoteric doctrine of standing. In our system, only those who have been personally harmed in some way have "standing" to seek a remedy in federal court. Among other things, this means that ordinary taxpayers, simply by virtue of being taxpayers, do not have standing to challenge government expenditures, even if they believe a particular item exceeds the government's constitutional authority.


However, more than 40 years ago the Supreme Court created an important exception to this rule. In Flast v. Cohen (1968), the Court said that taxpayers do have standing to bring federal cases alleging that a government expenditure violates the Establishment Clause. In the years since the Flast decision, taxpayer suits have led to several important Establishment Clause rulings.


The Winn decision casts serious doubt on the future of these suits. Winn involved a provision in the Arizona tax code that gives a dollar-for-dollar tax credit for contributions to school tuition organizations (STOs), who in turn use the funds to provide scholarships for students attending private schools, including religious schools. Some of the largest STOs limited their scholarships to religious schools. The tax credit was challenged in federal court by a group of Arizona taxpayers, following the precedent established by Flast. But the Supreme Court ruled 5-4 that they had no standing to bring the case. The Flast rule did not apply, said the majority, because a tax credit is not the same as an appropriation.


This distinction is questionable in economic terms, and deciding taxpayer standing on this basis is absurd. As Justice Kagan points out in her ringing dissent, cash grants and tax credits have the same impact on the public purse, and both can be used to accomplish the same legislative purpose, which here seems clearly to support religious schools. She points out that even the National Commission on Fiscal Responsibility and Reform refers to tax credits and similar techniques as "tax expenditures," or "just spending by another name." By resting on this artificial distinction, the Court's ruling means that taxpayers have the right to bring an Establishment Clause challenge to funding laws but not to tax laws.


The practical consequences of this decision are enormous. As Justice Kagan says, the majority's ruling "threatens to eliminate all occasions for a taxpayer to contest the government's monetary support for religion." "Any government that wishes to insulate its financing of religious activity from legal challenge," she notes, can simply follow the "roadmap" provided by the majority and use tax credits in place of direct appropriations. As a result, Winn very likely signals the demise of taxpayer standing.

The sad irony is that the Arizona tax credit would probably have been upheld if the Court had reached the merits of the Establishment Clause issue. At one time, the Supreme Court struck down most forms of government aid to religious schools, even if the aid was earmarked for "secular" purposes. It was too easy, the Court said, for these funds to become commingled and used for religious instruction, and in any case the state aid freed up other funds that could then be used for religious purposes.


Over the past two decades, however, the Court has changed course. It now routinely upholds most types of aid to religious schools unless it can be shown in a particular case that public funds are in fact being used for religious instruction. And forms of aid that are directed to students or parents, such as tuitions vouchers, are upheld as long as they are available for all private schools and not just religious schools, even in contexts where the only realistic choices are religious schools.


The Court's pinched view of church-state separation is disturbingly visible in the recent case of Mitchell v. Helms (2000). While six justices voted to uphold a federal program providing non-religious educational materials to private schools, including religious schools, four went much further. In his plurality opinion, Justice Thomas, joined by Chief Justice Rehnquist and Justices Scalia and Kennedy, said the program would be constitutionally acceptable even if the schools used the aid for purposes of religious indoctrination. According to Justice Thomas, government aid used to indoctrinate is not the same as indoctrination by the government. This is a troubling and constitutionally questionable distinction.


It remains to be seen whether the newest members of the Court's conservative bloc, Chief Justice Roberts and Justice Alito, share this extreme view. But it seems clear that the demise of taxpayer standing to bring Establishment Clause challenges is unlikely to make much practical difference for religious freedom until the Court's current majority changes.

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