Robyn Blumner
Tribune Media

James Madison would be rolling over in his grave if he knew that his magnificent thesis on why the government should never be allowed to direct financial support to religious education was twisted to undermine such claims.
In a 5-4 ruling Monday, conservatives on the U.S. Supreme Court barred taxpayers from challenging an Arizona tax credit scheme designed to divert public money from state coffers to religious schools. The ruling effectively eliminates a taxpayer standing in federal court to challenge even the most blatant and discriminatory government support of religion when it’s done through the targeted use of the tax code.
I can almost see Justices Antonin Scalia and Clarence Thomas — who are, at heart, religion-by-the-sword types — dancing a little jig as they slam shut the courthouse door to church-state litigants, while opening the public coffers to religion.
The only bright spot was a vigorous dissent and history lesson delivered by Justice Elena Kagan, who was joined by her three liberal-wing colleagues. Her discussion of Madison decimated Justice Anthony Kennedy’s majority ruling that claimed the founding father’s writings support his view: that the Constitution only limits government’s direct expenditures for religion, and not the use of targeted tax benefits that accomplish the same goal.
The case of Arizona Christian School Tuition Organization v. Winn challenged an Arizona private school tuition program that gives taxpayers a dollar-for-dollar state income tax credit of up to $1,000 per couple when they direct donations to privately run “school tuition organizations.” Those organizations then use the diverted tax money to fund scholarships at religiously affiliated schools, often exclusively so. One such STO says its program goal is “to further Christian education ... for the benefit of Christian school students and their families.”
Since its inception in 1997, more than $350 million in tax money has been diverted from the state’s general fund, with one STO urging donations with this come-on: “Imagine giving (to charity) with someone else’s money. ... Stop Imagining. Thanks to Arizona tax laws you can.”
What makes James Madison relevant is that Arizona’s program is similar to one proposed in 18th century Virginia that Madison — who is known as the architect of the Constitution’s religion clauses — forcefully denounced. Madison’s famous “Memorial and Remonstrance Against Religious Assessments” railed against a proposed tax levy to aid teachers of Christian religion.
Kennedy claims that Madison’s Remonstrance was only concerned with government extracting and spending money for religious activities in violation of a taxpayer’s conscience. But as Kagan points out, the Virginia proposal looked more like the Arizona model: Taxpayers were to direct their payments to Christian societies of their choosing. Conscientious objectors could opt out of subsidizing religion entirely and have their funds directed to a proposed common school fund for the support of general education.
The consequence of the court’s ruling, as Kagan suggests, is that it gives legislatures a “road map” to insulate the financing of religion from any challenges from the courts. She offers extreme examples, such as a state choosing to reward Jews for their piety to the tune of $500 per year, to be claimed on their tax returns in lieu of an annual stipend. Or a state subsidizing the ownership of crucifixes by authorizing a tax credit equal to the price paid.
Does it really matter how this kind of support is structured? Of course not. But that truism will have to wait for a more intellectually honest court — one that actually values Madison’s vision.
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