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SG's Standing Argument In Arizona Christian School Organization Case Surprises Some

By Howard M. Friedman

The Los Angeles Times reports that many are surprised at the government's position on standing put forward yesterday by Acting U.S. Solicitor Gen. Neal Katyal in his Supreme Court argument on the constitutionality of Arizona's tuition scholarship tax credit. (See prior posting.) Here is part of the argument in Arizona Christian School Tuition Organization v. Winn that has caused American United executive director Barry Lynn to describe the Obama administration's position as "inexplicable":

GENERAL KATYAL: Not a cent of the Respondent's money goes to fund religion. If you placed an electronic tag to track and monitor each cent that the Respondent plaintiffs pay in tax, not a cent, not a fraction of a cent, would go into any religious school's coffers.... Their complaint is not that the government is spending ... money that has been extracted [from] ... taxpayers. Their complaint is that someone else's money is not being extracted and spent enough. And the relevant language in Flast says that for taxpayer standing to occur ... "his tax money" must be extracted and spent, and here that is not occurring.

JUSTICE GINSBURG: Counsel, does anyone have standing, in your view, to challenge this scheme?

GENERAL KATYAL: The way this scheme is set up, our answer is no. And I think that accords with this Court's general reluctance to confer taxpayer standing in this area.

JUSTICE GINSBURG: And if we leave out the fine points that you were discussing, isn't the underlying premise of Flast v. Cohen that the Establishment Clause will be unenforceable unless we recognize taxpayer standing?

GENERAL KATYAL: I don't see that, Justice Ginsburg..... I think Flast is a very narrow exception for when someone's dollars are being taken out of their pocket and spent by the government on religion, and I don't think that's happening here....

JUSTICE KAGAN: So if you are right, General Katyal, the Court was without authority to decide Walz, Nyquist, Hunt, Mueller, Hibbs, this -- this very case, just a few years ago? That the Court was out of authority to decide any of those cases, but somehow nobody on the Court recognized that fact, nor did the SG recognize that fact? The SG participated, I believe, in each of those cases.

GENERAL KATYAL: Right.

The government's amicus brief in the case similarly argued that plaintiffs lacked standing to bring their Establishment Clause challenge.

Full post as published by Religion Clause on November 04, 2010 (boomark / email).