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Published in Print: November 10, 2010, as Justices Tackle Tax Credits, Violent Video Games

Justices Tackle Tax Credits, Violent Video Games

Court Appears to Be Divided, But Not Along the Usual Ideological Divides

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The U.S. Supreme Court last week took up the constitutionality of two very different state laws meant to aid or protect children.

One is Arizona’s tax credit for contributions to organizations that provide private school scholarships, including for students in religious schools. The other is California’s ban on the sale of violent video games to minors.

By the end of the separate arguments, it was clear that the justices were divided, and not always along their usual conservative and liberal lines.

Under Arizona’s 13-year-old tuition-aid plan, taxpayers can receive a dollar-for-dollar credit of up to $500 (or $1,000 for married couples) on their state income-tax returns for donations to “school tuition organizations,” or STOs. Such groups may limit their grants to students who will use them at religious schools. In 2008, some $54 million in scholarships was awarded, according to the state. The Arizona Republic newspaper reported that 93 percent of the aid that year went to students in religious schools.

“Our claim is that state money is being given to the beneficiaries of a state spending program on the basis of religion,” Paul Bender, a lawyer representing Arizona taxpayers who have challenged the program as an unconstitutional establishment of religion, told the justices in Arizona Christian School Tuition Organization v. Winn (Case No. 09-987).

The program was defended in the Supreme Court last week both by the state and the Obama administration, which argued not only that the tax credits are a neutral program that does not aid religion, but also that the taxpayer challengers lack legal standing to do so.

“Not a cent of [challengers’] tax money goes to fund religion” under the Arizona program, said acting U.S. Solicitor General Neal K. Katyal.

‘Modest’ or ‘Complicated’?

Several justices saw no constitutional problem with the fact that some of Arizona’s school tuition organizations limit their aid to religious schools. Justice Antonin Scalia said the decision to contribute to such a religiously affiliated group was a private decision by the taxpayer and didn’t raise the specter of religious discrimination by the government.

Justice Samuel A. Alito Jr. observed that “this is a very modest tax credit.”

The Supreme Court in the 1983 case of Mueller v. Allen upheld a Minnesota tax deduction for money parents spent on their own children, even when 97 percent of the tuition funds were going to religious schools. In Zelman v. Simmons-Harris in 2002, the justices upheld an Ohio program providing vouchers for poor children in Cleveland to attend private schools, including religious schools.

The court’s more liberal members appeared troubled by the Arizona program.

Justice Elena Kagan, weighing her first education case as a member of the high court, told Paula S. Bickett of the Arizona attorney general’s office that she found it “puzzling” that Arizona had adopted such a complex tax-credit program for private school tuition aid instead of “typical” tuition vouchers.

“This is so much more complicated and unusual,” Justice Kagan said.

Ms. Bickett noted that the Arizona Constitution bars any direct aid to private schools and said the tax-credit program encourages contributions for tuition not just from parents but also from other taxpayers.

Justice Sonia Sotomayor told Mr. Katyal that the program appeared to involve “taxpayer dollars paying for religion.”

Justice Anthony M. Kennedy, usually the court’s critical center vote, wondered whether the STOs were so entwined with the government that their decisions on where to spend scholarship dollars amounted to “state action.”

“The state has all sorts of rules about what an STO has to be,” he said. “The state provides the mechanism through the credit for the funding.”

A chief argument of Mr. Katyal was that “there is no taxpayer standing in this case.”

Taxpayers generally may not challenge government spending decisions based on that status alone, though a 1968 court ruling created an exception that allows taxpayers to challenge a program of direct grants to religious organizations.

Justice Kagan scrapped with Mr. Katyal over the implications of limiting taxpayer standing to challenge a program such as Arizona’s.

Meanwhile, at issue in the California case, Schwarzenegger v. Entertainment Merchants Association (No. 08-1448), is a 2005 statelaw that defines violent games as those that include “killing, maiming, dismembering, or sexually assaulting an image of a human being,” if the game appeals to the “deviant or morbid interest of minors” and lacks “serious literary, artistic, political, or scientific value for minors.”

The law, not yet enforced, bars retail outlets from selling or renting such games to anyone younger than 18, with possible fines of up to $1,000 per violation.

‘Deviant Violence’

California seeks to regulate games with a “deviant level of violence … that can be no less harmful to minors” than the type of sexually explicit material that the Supreme Court has said may be kept from minors, Zackery P. Morazzini, a state deputy attorney general defending the law, told the justices.

Paul M. Smith, a Washington lawyer arguing on behalf of the video-game makers and retailers who challenged the law as an infringement of the First Amendment’s free-speech clause, said California has “not shown any problem, let alone a compelling problem, requiring regulation here in a world where parents are fully empowered already to make these calls” on whether their children should have access to violent games. Justice Scalia was among the most troubled by the law, asking what other media violence might be open to censorship.

“Some of the Grimms’ Fairy Tales are quite grim, to tell you the truth,” Justice Scalia said. “Are you going to ban them, too?”

Mr. Morazzini said no, that the difference between violence in books, movies, and music, on the one hand, and video games on the other was the interactive nature of the games, “where the young person is the aggressor.”

Justice Kennedy said, “You are asking us to go into an entirely new area [of speech regulation] where there is no consensus.”

Justices Ruth Bader Ginsburg, Sotomayor, and Kagan also expressed concerns.

Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Alito, appeared sympathetic to California’s efforts.

With video games, “the child is doing the killing. The child is doing the maiming,” the chief justice said. “And I suppose that might be understood to have a different impact on the child’s moral development.”

Justice Alito, alluding to games in which body parts are put through a meat grinder, said, “We have a new medium that could not possibly have been imagined when the First Amendment was ratified.”

Rulings in both cases are expected by June.

Vol. 30, Issue 11, Pages 17,19

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