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Is Arizona’s religious school funding constitutional?

by Brad A. Greenberg

November 6, 2010 | 6:03 pm

It’s an old debate: Are tax credits for religious schools constitutional? The Obama Administration says it is and supports an Arizona state law that funds religious schools with tax credits. And this week the Supreme Court heard arguments on both sides.

The Christian Science Monitor gives us the details to read the tea leaves:

As in prior cases involving government and religion, the justices appear to be deeply split. The court’s liberals generally are highly suspicious of interactions between government and religion, while the conservatives are less suspicious. ...

Justice Anthony Kennedy, a potential decisive vote in the case, said he had “some difficulty” with the idea that an individual spending money the government doesn’t take as a tax is nonetheless still government money. ...

The program requires that donations be made to a School Tuition Organization (STO), which are private, non-profit groups set up to award scholarships from the donated funds. In 2009, there were 53 STOs. They received $51 million in donations.

Here’s the controversial part: Roughly half of the STOs only award scholarships to religious schools. In addition, most of the donated money flows through STOs that award scholarships at religious schools.

The key question in the case is whether Arizona’s program amounts to a government benefit program that favors religion, or whether it is a private choice program (set up by government) in which it is the private actors whose personal choices favor religion.

I still wasn’t sure what to make of it. UPenn law prof David Skeel wrote in the Wall Street Journal that he expects the high court to reverse a Ninth Circuit ruling that held the law unconstitutional. But I could see this coming out either way. As the Monitor suggested, it’s probably going to come down to what Justice Kennedy thinks.

Anyway, there is a healthy recap of the arguments at the SCOTUSblog.

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