Supremes: Taxpayers Lack Standing To Bring Establishment Clause Suit

Not content with trashing the Fourth, Fifth, Sixth and Fourteenth Amendments to our Constitution, our current out-of-control Supreme Court has decided to eviscerate the First Amendment, in particular, the "establishment" clause.

While I have some reluctance to appropriate the entire of Howard M. Friedman's post, his excerpts are perfectly chosen, and his setups are concise and appropriate:

Supreme Court Holds Taxpayers Lack Standing To Challenge Tax Credits For Tuition Contributions

In a 5-4 opinion today in Arizona Christian School Tuition Organization v. Winn, (Sup. Ct., April 4, 2011), the U.S. Supreme Court held that taxpayers lacked standing to bring an Establishment Clause challenge to Arizona's program that provides tax credits for contributions to school tuition organizations that in turn provide scholarships to students in private schools-- many of them religious schools.  Kennedy's opinion (joined by Chief Justice Roberts and Justices Scalia, Thomas and Alito) rejected plaintiffs' argument that the standing rule announced in Flast v. Cohen applies, saying:

In their view the tax credit is, for Flast purposes, best understood as a governmental expenditure. That is incorrect. It is easy to see that tax credits and governmental expenditures can have similar economic  consequences, at least for beneficiaries whose tax liability is sufficiently large to take full advantage of the credit. Yet tax credits and governmental expenditures do not both implicate individual taxpayers in sectarian activities. A dissenter whose tax dollars are “extracted and spent” knows that he has in some small measure been made to contribute to an establishment in violation of conscience.... In that instance the taxpayer’s direct and particular connection with the establishment does not depend on economic speculation or political conjecture. The connection would exist even if the conscientious dissenter’s tax liability were unaffected or reduced...... When the government declines to impose a tax, by contrast, there is no such connection between dissenting taxpayer and alleged establishment. Any financial injury remains speculative.... And awarding some citizens a tax credit allows other citizens to retain control over their own funds in accordance with their own consciences.

Justice Scalia also wrote a concurrence, joined by Justice Thomas, urging that Flast be overruled.

Justice Kagan wrote a dissent, joined by Justices Ginsburg, Breyer and Sotomayor, arguing that the majority's "arbitrary distinction" between expenditures and tax credits:

threatens to eliminate all occasions for a taxpayer to contest the government’s monetary support of religion. Precisely because appropriations and tax breaks can achieve identical objectives, the government can easily substitute one for the other. Today’s opinion thus enables the government to end-run Flast’s guarantee of access to the Judiciary.

If taxpayers have no standing to bring such a matter, then the establishment clause is totally impotent for its original purpose of preventing government contributions to support a particular religious organization over others, or to support religion in general over an absence of religion. With this ruling, we are well on our way to allowing a state legislature effectively to establish a theocracy.

Is anyone out there still going to argue that it doesn't matter that six (6) members of the current SCOTUS are Catholic? I realize that the vote split was along the typical conservative/nonconservative lines and that at least one of the Catholics (Sotomayor) dissented, but it still makes me uncomfortable that two-thirds of the highest court in the land may feel pressured to rule according to the tenets of a particular religion.