This is a case about tax credits for contributions made to private tuition funds that make grants to students who go to private schools. Many of those schools are religious and some of the qualified funds only make grants to students who go to religious religious schools. [Lyle] Denniston begins his description [of the argument] with a claim that he detected Elena Kagan's purchase on the mind of Tony Kennedy (a subject we were just talking about the other day). Denniston says Kagan and Kennedy — the 2 Ks (sounds like trouble!) — "took crucial, reinforcing roles." I don't see much support for that point.
This case has a substantive Establishment Clause issue — whether government is subsidizing religion — and a threshold issue about standing — whether taxpayers can sue over this. These issues are linked because they both may depend on whether a tax credit turns the privately donated money into money from the state....Today, the Supreme Court came out with the decision in the case and there's Kennedy writing for the majority and Kagan —with (guess who?) Ginsburg, Breyer, and Sotomayor — writing for the dissent.
The majority said there was no standing, which means that it did not reach the Establishment Clause question.
ADDED: Justice Kennedy makes the key distinction between this case and other cases (notably Flast) in which taxpayers had standing to challenge taxing and spending laws using the Establishment Clause:
[T]ax 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.Dissenting, Justice Kagan states the opposing position:
Cash grants and targeted tax breaks are means of accomplishing the same government objective — to provide financial support to select individuals or organizations. Taxpayers who oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other. Either way, the government has financed the religious activity. And so either way, taxpayers should be able to challenge the subsidy.
Still worse, the Court’s arbitrary distinction 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.I love the clarity of Kagan's writing. But it will take more than that to gain purchase on Kennedy's brain. The truth is that Flast is out of line with a whole lot of other standing cases. Distinguishing this case from Flast may seem like a strain, but it's a more a matter of not letting the anomaly grow. Justices Scalia concurs, with Justice Thomas, to say Flast should be overruled altogether, and not just costrained. Scalia is pulling on one side, and Kagan on the other, and Kennedy maintains his purchase on the center.