Church-state dispute fires up justices |

Church-state dispute fires up justices

WASHINGTON — The Obama administration upset liberals as well as the president’s two Supreme Court appointees Wednesday by arguing that ordinary citizens have no legal right to go to court to challenge the government if it uses tax money to fund religious schools.

The surprising argument occurred in this term’s most important church-state dispute. At issue is the constitutionality of an unusual, 13-year-old Arizona law that allows taxpayers to direct a $500 tax credit to a private organization, which in turn pays tuition for students in private schools. More than 90 percent of the money goes to religious schools, the challengers said.

Acting U.S. Solicitor General Neal Katyal joined Arizona in defense of the law, but went further and argued no one had the legal standing to challenge it in court. Because no citizen could prove that “a cent … of his money goes to fund religion,” no one had a right to sue over the alleged unconstitutional subsidy for religion, Katyal said.

Justices Ruth Bader Ginsburg and Stephen G. Breyer quickly objected. If no one can sue, there would be no way to enforce the First Amendment’s ban on laws that foster “an establishment of religion,” they said.

Justice Sonia Sotomayor appeared to agree, commenting that “this is the state’s money” going to private groups that fund only religious schools.

Justice Elena Kagan, Katyal’s boss until she joined the court in August, objected to Katyal’s argument. She ticked off a series of landmark rulings that rejected state aid to parochial schools. “So, if you are right, the court was without authority to decide” those cases, “but somehow nobody on the court recognized that fact?” she asked.

“My answer to you is yes,” he said.

At this, Justice Anthony M. Kennedy, a key swing vote, called for a pause. “I just want to make sure I heard your answer. Your answer is ‘yes’?” he asked. “Those cases were wrongly decided?”

Katyal said the court may have the right to say the states had wrongly subsidized religion, but he insisted no taxpayer had the standing to sue.

While technical, the issue of standing has emerged as crucial in the continuing dispute over church-state separation. In the past, advocates of church-state separation have sued to object when a city, for example, puts a religious symbol on public property. But in recent years, the court’s leading conservatives, including Chief Justice John G. Roberts Jr. and Justice Antonin Scalia, have questioned whether such persons have standing to sue, because they cannot prove they were injured.

A ruling in the Arizona case has the potential to be far-reaching if the court were to agree with Katyal and broadly shield the government from legal claims that it is wrongly diverting public money to aid religion.

Liberal advocates said they were taken aback by the administration’s stand.

“The brief they filed is the same that would have been filed by the Bush administration,” said Erwin Chemerinsky, dean of the University of California Irvine Law School. “There is no reason for the Obama administration to get involved in this case, let alone to take the conservative position that there is no standing.”

The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, called the administration’s stand “inexplicable.”

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