The program itself is novel and complicated, and allowing it to go forward may be of no particular moment. But by closing the courthouse door to some kinds of suits that claim violations of the First Amendment’s ban on government establishment of religion, the court’s ruling in the case may be quite consequential.
Justice Elena Kagan, in her first dissent, said the majority had laid waste to the doctrine of “taxpayer standing,” which allows suits from people who object to having tax money spent on religious matters. “The court’s opinion,” Justice Kagan wrote, “offers a road map — more truly, just a one-step instruction — to any government that wishes to insulate its financing of religious activity from legal challenge.”
The decision divided the court along the usual ideological lines, with the three other more liberal members — Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor — joining the dissent.
The Arizona program gives taxpayers there a dollar-for-dollar state tax credit of up to $500 for donations to private “student tuition organizations.” The organizations are permitted to limit the scholarships they offer to schools of a given religion, and many of them do.
The usual rule is that plaintiffs who merely object to how the government spends their taxes do not have standing because they have not suffered a sufficiently direct injury. But the Supreme Court made an exception for religious spending by the government in 1968 in Flast v. Cohen.
The issue that divided the majority and the dissenters on Monday was whether granting a tax credit was the functional equivalent of collecting and spending tax money. Writing for the majority, Justice Anthony M. Kennedy said the two things were very different.
“Awarding some citizens a tax credit allows other citizens to retain control over their own funds in accordance with their own consciences,” Justice Kennedy wrote for himself, Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.
The plaintiffs’ position, Justice Kennedy wrote, “assumes that income should be treated as if it were government property even if it has not come into the tax collector’s hands.” But, he added, “private bank accounts cannot be equated with the Arizona State Treasury.”
Justice Scalia, joined by Justice Thomas, wrote separately to say he would have gone further and eliminated the exception carved out in the Flast decision entirely.
In her dissent in the case, Arizona Christian School Tuition Organization v. Winn, No. 09-987, Justice Kagan said the majority’s position was an elevation of form over substance. “Taxpayers experience the same injury for standing purposes,” she wrote, “whether government subsidization of religion takes the form of a cash grant or a tax measure.”
She offered examples. “Suppose a state desires to reward Jews — by, say, $500 per year — for their religious devotion,” she wrote. Would it matter to taxpayers offended by the practice whether the reward came in the form of a government stipend or a tax credit?
“Or assume,” she wrote, “a state wishes to subsidize the ownership of crucifixes” in one of three ways. It could purchase them in bulk and distribute them; it could reimburse buyers with a check; or it could pay with a tax credit.
“Now, really — do taxpayers have less reason to complain if the state selects the last of these three options?” Justice Kagan asked.
Justice Kagan said the majority’s opinion was particularly surprising because the court had never thought the point even worth arguing over. “To the contrary: We have faced the identical situation five times — including in a prior incarnation of this very case! — and we have five times resolved the suit without questioning the plaintiffs’ standing,” she wrote.
Justice Kagan acknowledged that people would sometimes continue to have standing of the more traditional sort to challenge government spending on religion. In other cases, though, she wrote, Monday’s decision “will prevent federal courts from determining whether some subsidies to sectarian organizations comport with our Constitution’s guarantee of religious neutrality.”
In other action Monday, the court reinstated the death penalty for a California inmate who said his trial lawyers had failed to investigate his background and tell the jury about evidence of abuse and mental health problems that might have prompted leniency.
Justice Thomas, writing for the majority, said that lower federal courts had improperly considered new evidence from the inmate, Scott L. Pinholster, and that there was no “reasonable probability” that the evidence earlier presented to state courts would have produced a life sentence.
Mr. Pinholster was convicted in 1984 of two murders in the course of a 1982 robbery of a drug dealer. His lawyers presented only one witness during the penalty phase of the trial, Mr. Pinholster’s mother, to mixed effect. New lawyers for Mr. Pinholster later said that his trial lawyers had failed to find and present evidence that would have painted a fuller picture of his troubled background and mental shortcomings.
Seven justices joined all or part of Justice Thomas’s opinion in the case, Cullen v. Pinholster, 09-1088. Justice Sotomayor dissented, joined in part by Justices Ginsburg and Kagan. Justice Breyer also dissented in part.
The court on Monday also agreed to decide whether people arrested for minor offenses may be strip-searched, an issue that has divided the federal courts of appeals. The case, Florence v. Board of Chosen Freeholders, No. 10-945, arose from a traffic stop in New Jersey.
The state police there arrested Albert W. Florence based on a warrant for a supposedly unpaid fine. Though the fine had in fact been paid and though failing to pay such a fine is not a crime in any event, Mr. Florence was held for eight days in two counties before matters were sorted out. He was strip-searched twice.