Justice Kagan’s dissent yesterday in the Supreme Court ruling upholding Arizona’s education tax credits seems to me so obviously mistaken on both the facts and the law that I feel I must be missing something.

by Andrew J. Coulson at CATO @ Liberty

Justice Kagan’s dissent yesterday in the Supreme Court ruling upholding Arizona’s education tax credits seems to me so obviously mistaken on both the facts and the law that I feel I must be missing something. I offer my initial analysis briefly below, and if anyone can tell me if/where I’m going wrong, my e-mail address is just a Google away.

First, Kagan and her fellow dissenters express dismay at the putative novelty of the majority’s distinction between tax credits and government spending. But, more than a decade ago, this very same distinction was acknowledged by the Arizona Supreme Court in Kotternman v. Killian, and that AZ Court ruling itself cites a string of precedents from around the country supporting it. Clearly, the majority’s ruling is far from novel, and Kagan and the dissenters should know that.

Next, Kagan claims that the majority’s ruling would preclude taxpayers from suing the government for operating a program that gives tax credits exclusively to one religious group. She claims that taxpayers of other faiths would lack standing. That seems quite wrong. The pivotal issue is that taxpayers would have to show a specific personal harm resulting from the government’s actions in order to have standing. In the case of Arizona’s tax credits, as the majority acknowledged, there is no harm to taxpayers. Everyone is eligible for the credit and credits can be claimed against donations to any type of scholarship organization, of any faith or no faith. By contrast, under Kagan’s straw man example of a credit for the purchase of crucifixes, non-christian  taxpayers would suffer a specific personal harm: they would be denied the right to use the credit to purchase religious symbols of their own faith (or to buy “Who is John Galt?” posters if they happened not to be religious). This harm would be the direct result of government action–specifically, of the government’s decision to favor Christians over members of other faith groups and secular taxpayers.

A program that discriminates based on religion causes harm to taxpayers by virtue of excluding them from participation. That, in turn, is a clear equal protection violation, not to mention a violation of at least two of the three prongs of the First Amendment Lemon Test, and so such taxpayers would not only have standing to sue they would win the suit.

Again, the AZ tax credit program causes no such harm, because anyone, regardless of faith, can participate, and no one is compelled to support any kind of religious education. Why could Kagan and her co-dissenters not see this?

Andrew J. Coulson is the director of Cato’s Center for Educational Freedom. Previously, he was senior fellow in Education Policy at the Mackinac Center for Public Policy. He serves on the Advisory Council of the E.G. West Centre for Market Solutions in Education at the University of Newcastle, UK, and has contributed to books published by the Fraser Institute and the Hoover Institution. He is author of Market Education: The Unknown History, the only book to address contemporary education policy questions by drawing on case studies from across the entire span of recorded human history.

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