Ken Klukowski

While America was talking about the election returns, the Supreme Court was talking about tax credits to fund Christian schools in Arizona. It looks like this might be yet another 5-4 decision on religious liberty, and it’s not clear which way the Court will go.

On Wednesday, November 3—the day after the conservative tsunami resulting in Republican victories across America—the U.S. Supreme Court heard arguments in Arizona Christian School Tuition Organization v. Winn. Arizona allows a $500 dollar-for-dollar tax credit if taxpayers choose to give some money to student tuition organizations (STOs) that fund all manner of private schools, including Christian schools. As could be expected, even though many of these private schools are secular—or of other faiths such as Jewish—the usual suspects filed suit against Christian schools receiving such aid, railing against any taxpayers giving money that ultimately funds such schools. The case has now made it to the High Court.

There are two issues in the case. The second issue is whether these tax credits violate the Establishment Clause of the First Amendment. But before the Court can consider that question, the first issue is whether the plaintiffs even have standing to bring this lawsuit into federal court.

The first issue (standing) was argued by Acting Solicitor General Neal Katyal, who did a very good job of arguing why Kathleen Winn and her co-plaintiffs lack standing. The general rule is that taxpayers lack standing under Article III of the Constitution to bring a federal suit just because they don’t like what the government is doing with the people’s tax dollars. The case-or-controversy requirement of Article III includes a plaintiff having suffered a personal injury that is different from the general public.

The second issue was argued by a lawyer from the office of Arizona Attorney General Terry Goddard (an outgoing Democrat). That was a shame, in that this case was defended by, and the briefs written throughout the case—including at the Supreme Court level—were written by, the Alliance Defense Fund (ADF). Arizona’s lawyer was hesitant in many of her answers. She also got some of the facts wrong (as those facts are recounted in the briefs) and obviously failed to understand one major case that the liberal justices asked about regarding racial discrimination in an attempt to derail this case, while ADF’s lead attorney in this case, David Cortman, is a well-spoken appellate lawyer who was better equipped to argue the case, and wrote the brief for the STO. (I can’t remember the last time the lawyer who wrote the brief for the Supreme Court was not allowed to argue the case.)

Ken Klukowski

Ken Klukowski is a bestselling author and Townhall’s legal contributor covering the U.S. Supreme Court, and a fellow with the Family Research Council, American Civil Rights Union, and Liberty University School of Law.