The Catholic boys club that is the United States Supreme Court really outdid themselves in Arizona Christian School Tuition Organization v. Winn (April 4, 2011), a case in which Arizona citizens challenged a state law giving tax credits to those who donate to “school tuition organizations.” These organizations provide scholarships to private schools. Because nearly all such schools are religious (with the majority of them being parochial or Catholic), recipient schools are being supported by tax dollars.
One might think that these tax credits, which result in payments to “private” or religious schools, amounts to state support for such schools. One might also think that such support is prohibited by a long line of Establishment Clause jurisprudence holding that government cannot fund religious organizations and activities.
In the view of five Catholic justices, one would be wrong. Why? They allege there is a difference between tax credit funding and tax funding. In both law and economics, this is a classic distinction without a difference. Justice Kagan, writing for the four justice minority, noted that giving “tax credit funds” to religious schools is no different from giving “tax funds” to religious schools. Both result in tax dollars going to religious schools.
As Garrett Epps (my former law school classmate) uncontroversially observes over at The Atlantic: “The credit funds decrease the amount of money in the state treasury just as surely as a regular expenditure would; the benefit to religion — and the potential insult to Establishment values — is precisely the same.”
Anyone who believes that these five justices — Roberts, Scalia, Alito, Thomas, and Kennedy — decided the case “on the merits,” in accordance with legal precedent and without being biased by their Catholic faith, is simply naive.
One of the great fictions of American civil religion, and a pillar of American legal education, is the idea that justice is blind and judges decide cases by applying the law to the facts. No one has greater interest in maintaining this fiction than Supreme Court justices — the high priests of this religion.
The Catholic justices knew what result they wanted. They then searched for law and logic that would support their position, no matter how contorted or ridiculous. In ancient Greece, this was called sophistry. In modern America, it is called law.
At least we can give the Catholic blogosphere credit for calling a spade a spade. The happy headline over at The Catholic Knight declares: “Supreme Court Hands Victory to Catholic Schools.” A more accurate headline would be: “Five Catholic Justices Hand Victory to Catholic Schools.”
Postscript: In an unrelated story, Dahlia Lithwick nicely captured the spirit of this post: “Because we are a romantic people who want to believe in the Tooth Fairy and the Easter Bunny, we also believe that something magical happens to justices and judges when they don the black robes.” Of course nothing magical happens, even if the justices want us to believe otherwise.