WASHINGTON-The U.S. Supreme Court heard arguments Wednesday on whether Arizona's tuition tax credit program violates the separation of church and state.
Arizona provides up to $500 in tax credits for individuals ($1,000 for married couples) for donations to state-approved nonprofit organizations that provide private school scholarship money to families. Essentially, the state is offering a matching tax credit for contributions to tuition.
Already Georgia, Louisiana, Pennsylvania, Iowa, Minnesota, Illinois, Rhode Island, and Florida offer some form of tuition tax credits, which have more bipartisan support than direct vouchers.
Justice Anthony Kennedy, the swing vote on the court, seemed to side with the proponents of the tuition tax credit in arguing that a tax credit isn't equivalent to sending public money to a private school.
"I must say, I have some difficulty that any money that the government doesn't take from me is still the government's money," Kennedy said to the lawyer arguing against the tuition tax credits. "If you reach a certain age, you can get a card and go to certain restaurants and they give you 10 percent credit. I think it would be rather offensive for the cashier to say, 'And be careful how you spend my money.' But that's the whole point of your case."
The court has supported such programs in the past, ruling in 2002 that Ohio could provide direct vouchers to parents to attend private schools, religious or not. But the Arizona state constitution forbids tax funds from going to private schools.
The justices did seem concerned with whether parents in the program are limited to choose certain religious schools, since there are a limited number nonprofit organizations that dole out scholarship money in the state. Last year 27,582 Arizona students benefited from the credit, attending 370 private schools. About 270 of those schools have some kind of religious affiliation.
Four Arizona taxpayers brought the suit against the program, and the justices have to answer first whether the taxpayers have standing to sue at all. Normally, taxpayers can't sue over a use of their money they think is unlawful-but there are some exemptions for Establishment Clause issues.
"Not one fraction of a cent" of taxpayer funds have gone to religious schools in Arizona, Neal Katyal, the acting solicitor general pointed out. Katyal, who argues on behalf of the government, appeared in court to argue the point that taxpayers do not have standing to bring the case. The 9th U.S. Circuit Court of Appeals, which ruled that the program violates the state constitution, also ruled that the taxpayers had standing to sue.
The lawyer arguing for the tuition credits, Paula Bickett, said that charitable deductions must be called into question if "any money that the government doesn't take in would then be the equivalent of state money."
The lawyer for the taxpayers, Paul Bender, argued that there is a difference between tax deductions and tax credits: Deductions are money taxpayers never owed the government, credits are money taxpayers owed but do not pay. Therefore, he argued, Arizona taxpayers owe money to the government but instead are sending it to private organizations that may discriminate on the basis of religion. Bender said his clients would not have brought a challenge if Arizona provided tax deductions for tuition instead of tax credits.