Programs designed to redirect public funds to religious schools are effectively using tax credits to skirt the requirement separating church and state (“Public Money Finds Back Door to Private Schools,” The New York Times, May 22). Despite its transparent nature, the strategy has succeeded so far because it is supported by donations collected and distributed by nonprofit groups. Although the details differ somewhat, the programs are operating in eight states.
The practice first passed legal muster in April 2011 when the U.S. Supreme Court in a 5-4 ruling held that Arizona’s private-school tuition tax credit program could not be challenged because the donations are private money, rather than state tax money that was rerouted to religious schools (“High court upholds Arizona’s tax-credit program,” The Arizona Republic, Apr. 5, 2011). It did not matter that the Arizona program provided a dollar-for-dollar reduction of state income tax payments to organizations that support religious schools (“Private-School Tax Break Is Upheld” The Wall Street Journal, Apr. 5, 2011).
In its decision, the Supreme Court did not rule on the fundamental church-state issue. Instead, it held that the four residents who sued the state had no legal standing. It’s this point that requires amplification. Ordinarily, a person can sue the government only by claiming a personal injury from its misconduct - not simply by asserting the government is overstepping its authority. But in 1968, the U.S. Supreme Court carved out an exception for religious subsidy cases. It was only a matter of time before the ruling would become the basis for litigation.
I have to hand it to those who thought up this clever strategy. It brilliantly manages to avoid violating the establishment clause. Yet at the same time, it’s quite clear that it violates the spirit of the First Amendment. I’m sure this matters not a whit to the designers. But it should deeply trouble anyone who believes that taxes are not intended to support religious institutions. As I’ve written before, religious fundamentalists are waging a sophisticated campaign to insert their beliefs into public schools (“Religious Fundamentalism and Public Schools,” Mar. 21). The irony is that they may now find it more productive to follow the model in operation in Arizona.