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April 05, 2011 01:09 AM UTC

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

  • 11 Comments
  • 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.

Comments

11 thoughts on “Supreme Court proves the lie in Republican “No Taxpayer Funding for Abortion”

    1. SCOTUS:

      a  tax  credit allows dissenting taxpayers to use their own funds in accordance with their own consciences.

      If their conscience tells them not to pay taxes, they can give the same amount to the church/mosque/sect/cult of their choice.

        1. lol

          Seriously, Kagan should have used the example “Muslim prayer mat” instead of crucifix.

          Someoone tell me when our country became a theocracy when I wasn’t looking, please. I must not have read the papers that day.

          1. I suspect you read the paper that date, but with more pressing headlines to catch your eye you missed this story buried on page 37 next to the ad with Jake Jabs hugging a white tiger cub.

  1. The decision sets a horrible precedent. It allows the government to essentially implement unconstitutional policies that are only ‘indirectly’ funded by the government through tax incentives. And the court will not even entertain a legal challenge claiming taxpayers have no standing.

    I can think of many hypotheticals that would be immune from a judicial challenge. For instance, Congress could pass a law that gives media outlets a tax credit so long as they don’t say anything negative about the government. This is a clear violation of the first amendment. But guess what? No one can challenge it.

    Justice Kagan brilliantly pointed out the long list of cases where the Supreme Court has granted standing to taxpayers challenging religion and government. She even cites a case in which Justice Thomas writes a concurrent opinion in 1995. I guess he’s had a change in heart…

     

    1. And a very good reason to go all out to reelect Obama, in spite of whatever level of disappointment various groups of progressives may be feeling ( I count myself a strong reelection supporter but unable to locate nearly as much enthusiasm at this point), and hope for an opportunity, in his next term, to appoint another Supreme. Certainly we have to prevent the opportunity for another R corporatist/religious right activist appointment that would be a tragedy of almost unthinkable proportions.

      Whether all progressives feel it or not at the moment, we need to reach deep and dredge up that old time (2008) enthusiasm for 2012.  If we had managed it for the then pretty uninspiring Gore and kept his lead too big to be erased by the activist rightie Justices of 2000 with an assist from blatant voter supression and intimidation tactics and the worst and most tragic decision of swing voting O’Connor’s career, think how many awful decisions we would have avoided by now.  Think of a court without a Robertson or an Alito. We can’t screw up like that again.

      1. Anyone who knows the most elementary thing about politics knows that even in a legislative standoff, where you wrestle the other side to a draw, holding on to the White House allows you to shape the federal judiciary.

        Obama knows this; the man’s a constitutional lawyer.  The right wingers know this for sure, with their blocking tactics and think tanks designed to legitimize far right judicial theories and design laws and test cases to get precedents set by their appointees.  Yes, Democrats blocked some of the worst Bush nominees, but the statistics don’t lie, he got many more appointees through than Clinton before him, or Obama since.  The pathetic thing about Obama is he hasn’t even made appointments where seats are empty, and he hasn’t ginned up his PR machine to get his stalled appointees a vote.

        I was a Clinton supporter, but conceded that Obama would be a better speechifier, while she was a wonk who might run things better.  Where are the speeches to motivate his base to action?

        1. he was elected because everyone wanted to rush to the GOP defined increasingly right “center” and hold hands and that his niceness would somehow turn those mean Rs into happy partners. But I saw something that gave me a little bit of hope that he’s getting a clue about what this moment in time is offering:  A Huffpost story claiming he plans to say “no” to the GOP budget extension plan. Could he be learning something from the Wisconsin Rebellion and its spread throughout similar Midwestern states? Stay tuned.

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