Catholic Justices Serve Their Master Well

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.

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2 thoughts on “Catholic Justices Serve Their Master Well

  1. Paul D


    This reasoning (if carried through to its logical end) would mean that no tax credits are ever to be afforded to anyone who ever makes a donation to a non-profit organization that has a religious connection – be they educational or poverty directed. Thus, no credit for donations to Good Samaritan Houses; Jewish Family Services and alike. The end result of which would be to drive to (1) discourage religious organizations from educating or providing for the poor; or (2) discourage philanthropic individuals from donating anywhere but to purely areligious organizations – or better yet – incentiize them to direct their money to go to our fantastic government so they can spend it wisely on educating and caring for our poor.

    I understand the thought – but the application of the principal would eviscerate all tax credit for non profits that have a religious affiliation. The Catholic Church is the largest provider of social services (on a dollars invested basis) in this country and is the largest educator in this world. Most school boards begrudgingly admit that without religious affiliated schools, (Catholic or otherwise) they would go bankrupt because there is not enough funding available to provide educational services.

    Just a thought

  2. admin Post author

    I understand the objection, but the record in this particular case showed that on an annual basis, $95 million in dollar for dollar tax credits was given to the scholarship organization, and that nearly all of this money was in turn given to Christian schools whose mission is not merely education, but includes religious instruction. Indeed, the very reason such schools exist is to provide education in Christian religion, in addition to “secular” subjects.

    Instead of looking at general principles and a possible parade of horribles, I prefer to look at the facts of each case and make decisions based on the facts. This looks like state support for Christian education, and in fact amounts to state support for Christian education. If it looks like a duck it probably is a duck.

    My point here is not legal — if Americans wish to provide this kind of government support for Christian schools, then we should repeal the First Amendment, which states in relevant part: “Congress shall make no law respecting an establishment of religion.”

    My point instead is that these Catholic justices wanted a particular result and obtained it (perhaps for policy reasons similar to those you have pointed out). Rather than acknowledging this, however, they wrapped their decision-making in the mystical majesty of the law, claiming they were “compelled” to this result by longstanding legal principles. Of course they had to engage in all manner of legal contortions to reach their desired result, and their legal distinctions are utterly unconvincing.

    It is sort of like having someone pee on your leg and then having them tell you it is raining. I would rather have some honesty and frank acknowledgement that the people involved are not disinterested and the process is not objective.

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