Thursday, October 21, 2010

Supreme Court to Rule on Tax Credit Scholarships and the Establishment Clause

Just after the November election, the US Supreme Court is set to hear an Arizona case challenging an Arizona law that opponents say violates the Constitution's Establishment Clause. The law allows individuals and corporations to receive a tax credit for donations to nonprofits that provide scholarships to public school students to pay for private school tuition. The tax credit applies equally to organizations that provide tuition to non-religious and those that exclusively fund religious private school tuition.

The argument is that the Arizona law is an establishment of religion by the government because some of the nonprofit scholarship programs only award scholarships to religious schools.

I hope the Supreme Court continues to view the separation of church and state in the same light that the framers of the constitution intended – not as a prohibition against religion, but as a safeguard of religion. The law allows scholarship organizations to donate to any private school they want to, religious or not. This seems to me to cover the spirit and letter of the “Establishment” Clause, so long as the government does not specify a specific religious denomination or limit scholarships to specific faiths. Limiting scholarship agencies to non-religious schools, a practice with which the plaintiffs in this case don't seem to have a problem, would, for all practical purpose be an establishment of non-religious institutions in the same way that limiting government tax credits only to a specific religion would be a violation of the establishment clause.

After all, what is a religion except a system of beliefs. Atheism or systematic avoidance of religion is in fact a system of belief. It presupposes that a certain set of facts or ideas are of value and that others are not or, at least, should be avoided.

So long as the Arizona law does not specify what type of private school the tuition may apply to, I see no “establishment of religion” in a law that seeks to provide public school students access to alternative educational opportunities. Under this law, any group could specify what schools they wish to fund. Muslims could fund Muslim schools. Buddhists could provide scholarships to Buddhist schools. Atheists could fund scholarships to schools which teach categorically that there is no God. The level of funding is immaterial. If Christian schools receive the lion's share of these tax-credits, it is because there are more citizens who wish to fund those tax-credits up front – probably because there are more Christians in Arizona than any of the other groups.

So what? The Establishment Clause is about freedom to choose, not about making sure every group receives the same dollar amount. It's not about “fair” in the sense you meant it when you were 8 years old. It's about free.

You see, freedom is truly fair in the sense that fully mature grownups understand it. Freedom of choice means that if you have a good argument, you may win the debate. You may attract more followers. It means that the majority of us may celebrate Christmas and not spend much energy or cash on Ramadan or Hanukah celebrations. That's okay and fair. The Establishment Clause merely guarantees that if you wish to celebrate Ramadan, Hanuka, Kwanzaa or the Winter Solstice, your right to do so is protected by the government – but not funded by it.

In this case, a tax-credit program for a specific purpose – promoting high quality education beyond the level of public schools – allows scholarship agencies to provide scholarships to any private school whatsover. It is not appropriate that the government should limit which types of schools may receive those scholarships and which may not. THAT would be an “Establishment” indeed.

I just hope the Supreme Court sees it that way.

Tom King – Tyler, TX

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