April 05, 2011 01:09 AM UTC

Supreme Court proves the lie in Republican "No Taxpayer Funding for Abortion"

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• by: DaftPunk

Today the Supreme Court ruled that taxpayers do not have standing to challenge tax credits which fund religious education.  The challenge in

Arizona Christian School Tuition Organization v. Winn was against a law which allowed citizens to claim a dollar for dollar tax credit to organizations which provide tuition scholarships, primarily to religious schools, holding that favorable tax consideration is not tantamount to government funding.

The legal issue of standing can be complex to the uninitiated:

Standing, in lay terms, is simply the right to sue… The legal ramification is also simple. If you don’t have standing, the case gets dismissed without the merits of your claim ever being heard. And that is now the law of the land for any taxpayer who wants to try to enjoin the government from providing tax credits for religious purposes. No standing. Case dismissed.

The principle is not new. It has generally been held that taxpayers cannot sue the government over the use of tax monies. The rationale has been that an individual taxpayer’s contribution to a particular expenditure is not calculable, and if it were would be de minimus. Like all general rules, however, there are exceptions. For the past 43 years such an exception has existed by which taxpayers can bring action to prevent government subsidies for religious purposes. Flast v. Cohen (1968)…

…the majority opinion written by Justice Kennedy distinguished today’s decision from Flast. The basis of the distinction was that Flast involved collecting tax dollars and expending those dollars to purchase books for religious institutions whereas today’s case involved a tax credit, where revenues were not collected in the first place, to the detriment of government revenues.

The court held

When the Government spends funds from the General Treasury, dissenting

taxpayers know that they have been made to contribute to an establishment in violation of conscience.   In contrast, a  tax  credit allows dissenting taxpayers to use their own funds in accordance with their own consciences.  Here, the STO tax credit does not “extrac[t] and spen[d]” a conscientious dissenter’s  funds in service of  an establishment, or ” ‘force a citizen to contribute’ ” to a sectarian organization.  Rather, taxpayers are free to pay their own tax bills without contributing to an STO, to contribute to a religious or secular STO of their choice, or to contribute to other charitable organizations.  Because the STO tax credit is not tantamount to a religious tax, respondents have not alleged an injury for standing purposes.

Bottom line: Favorable tax status does not equal government funding.

Now you might disagree with this, finding more persuasion in Justice Kagan’s dissent:

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

As compelling as this analogy may be, the highest court in the land has spoken, and tax credits are not the same as government spending.

As a result, will we see Republicans abandon their attempts to remove tax exemptions for employer provided health insurance if that policy covers abortion?  Will patients still be allowed to use pre-tax dollars in their Flex spending accounts to pay for abortion?  All of these proposed prohibitions lurk within the now-clearly-misnamed “No taxpayer funding for abortion” bill.

Of course expecting the abandonment of such efforts would require intellectual consistency from Republicans, and a much better framework to understand this nexus is that they prefer the use of government power to benefit religious institutions, and prevent women from getting abortions.  Rather than having a logical underpinning consistent with some Platonic ideal like “originalism”, conservative jurisprudence is about finding the result they want and then inventing a rationale for it.