Justice Kagan's First Dissent Challenges An Arcane View Of The Establishment Clause

Stanley Fish of the NY Times has glowing words for Justice Kagan on the occasion of her first dissent since joining the Court. In her dissent to the opinion in Arizona Christian School Tuition Organization v. Winn, Kagan pokes holes in the majority’s argument, filling the void with a “landscape” of revealing examples.

The case deals with an Establishment Clause challenge to the use of public funds to support religious schools. The majority rests its holding that the plaintiffs lack Article III standing to sue on “the distinction between governmental expenditures and tax credits.” Since a tax credit for private spending on religious schools is not equivalent to direct government spending, the Court holds that the plaintiffs do not meet the test for taxpayer standing set forth in Flast v. Cohen.

Gibing at the majority for making this distinction “in search of a difference,” Kagan writes:

Suppose a State desires to reward Jews–by, say, $500 per year–for their religious devotion. Should the nature of taxpayers’ concern vary if the State allows Jews to claim the aid on their tax returns, in lieu of receiving an annual stipend? Or assume a State wishes to subsidize the ownership of crucifixes. It could purchase the religious symbols in bulk and distribute them to all takers. Or it could mail a reimbursement check to any individual who buys her own and submits a receipt for the purchase. Or it could authorize that person to claim a tax credit equal to the price she paid. Now, really–do taxpayers have less reason to complain if the State selects the last of these three options? The Court today says they do, but that is wrong.

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  • The Blogosphere is really having a field day with this opinion. I’m pretty sure I’ve read the analogy from Kagan’s dissent in at least 10 different places already. A couple of blogs with analysis of note:

    Scott Lemieux at the American prospect dismantling the difference between the minimalist right wing of the court and the fundamentalist right wing.

    Cornell Professor Mike Dorf trying to decipher what would and would not create standing under the now nearly non-existent Flast exception allowing (maybe) taxpayers to challenge Establishment Clause violations.