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usregimechange Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-04-11 01:12 PM
Original message
SCOTUS trims wall of separation, Kagan sides with liberal bloc
WASHINGTON The Supreme Court on Monday effectively upheld an Arizona program that aids religious schools, saying in a 5-to-4 decision that the plaintiffs had no standing to challenge it.

http://www.nytimes.com/2011/04/05/us/05scotus.html


KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a concurring opinion, in which THOMAS, J., joined. KAGAN, J., filed a dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.

http://www.supremecourt.gov/opinions/10pdf/09-987.pdf


For almost half a century, litigants like the Plaintiffs have obtained judicial review of claims that the government has used its taxing and spending power in violation of the Establishment Clause. Beginning in Flast v. Cohen, 392 U. S. 83 (1968), and continuing in case after case for over four decades, this Court and others have exercised jurisdiction to decide taxpayer-initiated challenges not materially different from this one. Not every suit has succeeded on the merits, or should have. But every tax-payer-plaintiff has had her day in court to Today, the Court breaks from this precedent by refusing to hear taxpayers claims that the government has unconstitutionally subsidized religion through its tax system.These litigants lack standing, the majority holds, because the funding of religion they challenge comes from a tax credit, rather than an appropriation.

This novel distinction in standing law between appropriations and tax expenditures has as little basis in principle as it has in our precedent. Cash grants and targeted tax breaks are means of accomplishing the same government objectiveto provide financial support to select individuals or organizations. Taxpayers who oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other. Either way, the government has financed the religious activity.And so either way, taxpayers should be able to challenge the subsidy.

Still worse, the Courts arbitrary distinction threatens to eliminate all occasions for a taxpayer to contest the governments monetary support of religion. Precisely because appropriations and tax breaks can achieve identical objectives, the government can easily substitute one for the other. Todays opinion thus enables the government to end-run Flasts guarantee of access to the Judiciary. From now on, the government need follow just one simple rulesubsidize through the tax systemto preclude taxpayer challenges to state funding of religion.

And that result the effective demise of taxpayer standing will diminish the Establishment Clauses force and meaning." -Justice Kagan, joined by Justice Ginsburg, Breyer, and Sotomayor.


Sad day but glad Justice Kagan is on the reasonable side.
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no_hypocrisy Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-04-11 01:17 PM
Response to Original message
1. If a TAXPAYER doesn't have standing, who exactly DOES?
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usregimechange Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-04-11 01:18 PM
Response to Reply #1
2. Corporations?
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freshwest Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-04-11 02:10 PM
Response to Reply #2
9. You betcha!
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gratuitous Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-04-11 01:18 PM
Response to Original message
3. Nicely schizophrenic
On the one hand, tax breaks for religious schools mean that taxpayers aren't directly funding them, so taxpayers have no standing to beef about what is essentially a subsidy. On the other hand, if even one dollar of tax money goes to Planned Parenthood to advance public health, providing essential health services to underserved (read: poor) communities, then it's "tax dollars for abortion." And we all know how abortion makes the baby Jesus cry.

Situational ethics used to be a bugaboo for our friends on the repressive right. Nice to see they've gotten over that.
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ixion Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-04-11 01:21 PM
Response to Reply #3
6. Oh yes... they embrace their cognitive dissonance, they wear it as a badge of honor
it's disturbing, in my opinion.
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xchrom Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-04-11 01:21 PM
Response to Reply #3
7. indeed. nt
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Thunderstruck Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-04-11 01:19 PM
Response to Original message
4. Madrassas in Arizona?
Whodathunkit?

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freshwest Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-04-11 02:11 PM
Response to Reply #4
10. Soon to be nationwide.
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ixion Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-04-11 01:19 PM
Response to Original message
5. "no standing to challenge it" means their tax bracket is not in the 1%
once you get to that bracket, you have all the 'standing' you need to do business with Red US.
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Warren DeMontague Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-04-11 01:22 PM
Response to Original message
8. Yeah, that's their new game, isn't it.
Doesn't matter what the legal issues are, if they don't think you have "standing", you can't be heard.

Apparently corporations are people but people aren't.
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happyslug Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-04-11 03:24 PM
Response to Original message
11. I hate to say this, but Scalia and Thomas concurring Opinion is the best of the three Opinions
Edited on Mon Apr-04-11 03:24 PM by happyslug
Here it is in Full:

JUSTICE SCALIA, with whom JUSTICE THOMAS joins,concurring.

Taxpayers ordinarily do not have standing to challenge federal or state expenditures that allegedly violate the Constitution. See Daimler Chrysler Corp. v. Cuno, 547 U. S. 332, 343345 (2006). In Flast v. Cohen, 392 U. S. 83 (1968), we created a narrow exception for taxpayers raising Establishment Clause challenges to government expenditures. Todays majority and dissent struggle with whether respondents challenge to the Arizona tuition tax credit falls within that narrow exception. Under a principled reading of Article III, their struggles are unnecessary. Flast is an anomaly in our jurisprudence, irreconcilable with the Article III restrictions on federal judicial power that our opinions have established. I would repudiate that misguided decision and enforce the Constitution. See Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587, 618 (2007) (SCALIA, J., concurring in judgment).

I nevertheless join the Courts opinion because it finds respondents lack standing by applying Flast rather than distinguishing it away on unprincipled grounds. Cf. Hein, supra, at 628631.


Basically, the rule is, if a plaintiff has no standing, and being a tax payer does NOT give you standing, the case is not one in "controversy" and thus outside the jurisdiction of the Court. In 1968 the US Supreme Court permitted a narrow exception to this rule in Faust, a rule both the Majority and the Dissent upheld and worked around, Scalia and Thomas says both are wrong for Faust should be overturned rather then go through mental gymnastics on how to apply it to get around the constitutional requirement of standing. i.e. unless you can show personal harm, you do NOT have standing to challenge any law. In this case, merely being a tax payer, can not give someone standing to challenge a tax deduction (The ruling of the Majority).

Now, if you support the California Federal Court Ruling as to Homosexual Marriages, then you should support the Majority and Scalia. Standing is an issue on appeal of that decision. Can a third party intervene in a case where the Defendant (In that case the State of California) decides not to appeal a Federal Court Decision? The Ninth Circuit is looking for more then being tax payers for the intervenors, some actual harm the intervenors suffer from do to the decision to declare it is a violation of the Federal Constitution. This is probably why the Federal Solicitor General wanted to narrowly construe Standing, for if narrow enough that California case suffers from the same issue facing these plaintiffs, no actual direct harm. Do Taxpayers have standing as to tax deductions but not State laws? Faust holds taxpayers have standing when money is directly spent to support a religion, but how far is that permitted given the limitations set forth in the US Constitution?

Sorry, the strict rule advocated by Scalia makes the most sense in this type of case, unless you can show some personal harm a plaintiff has no standing to bring an action.
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Warren DeMontague Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-04-11 04:45 PM
Response to Reply #11
12. So under what circumstances could citizens challenge a governmental 1st amendment violation?
Seems to me, under this "strict rule", pretty much none.
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happyslug Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-04-11 07:02 PM
Response to Reply #12
13. If you are personally affected, which is the law in all other cases.
Standing exists so that when a Court decides an issue, the parties are in opposition to each other, not some third party wanting to make a point. That is how the US Supreme Court ruled on issues of Standing, including ruling that it was unconstitutional for schools to start with prays, that it was unconstitutional to require people to be taught in English, to protect someone who wanted to read a banned book. Standing is to make sure a constitutional rule is made based on two sides agreeing to the rule before the court consider it and framing the argument so the Court will rule the way the sides want it to rule.

The big fear of permitting people without some harm in the litigation, is for the courts to make a rule of law that is someone wants, and the real opposition to that proposed rule does not even know of the litigation. Now, this is mostly involving other aspects of the Law and Constitution, but it is an essential element of the Common Law System. To permit people to litigate an issue, that the parties do not have a real interest in finding the correct rule, means the finding of law is not the product of two sides arguing before a Judge, and that Judge making a decision based on the argument, but to permit one side, in effect, to make the argument and get the Judge to rule on his side. The Common Law has never worked that way, and can NOT work that way.

Both the Opinion of the Court and the Dissent, went on and on about the need to reduce standing (i.e. permit tax payers to have standing just because they are tax payers) in cases involving Government support for religion, but it more arguments about how far the rule should go, then as to the actually need for the rule. How far do we want tax payers to have standing? That could permit standing in any Government action, including where a bridge should be built, a highway built, a new building be built, how much to pay for welfare, how much to pay for Social Security etc. Nothing would be safe from such litigation and thus how do you limit such litigation especially since much of it will be one sides (i.e. Someone challenges the Government grant of Welfare, when the Government wants to abolish welfare itself, thus you have a court case between two people who agree welfare is unconstitutional and so the court will rule. No actual dispute between the parties and by the time people who are on welfare (and have standing) are facing a rule of law they must attack and take all the way up to the US Supreme Court, hoping the Court will reverse the decision.

As to First Amendment violation, if you can show personal harm, i.e. you child is forced to recite a pray, your child must knee and make the sign of the cross before the cross in front of the school, your child must read take a religious class in school, you must pay a fee to a Church, you have to listen to a religious leader every day and other similar actions all provide personal harm and thus actionable under the Standing clause to protect your first amendment right. The court has always said the place to argue about taxes is the Legislature NOT the courts. Do you want people to claim a right under the Constitution not to pay a tax, for the tax is going to something their oppose (like rails to trails, or public transit)? Do you want people to object to a Government right to give a deduction for use of public transit, when they oppose such subsidies on freedom of religious grounds (i.e. They oppose such Government benefit for the plaintiff believes it is better for everyone to buy a car)? Do you want someone to oppose money for a public meeting place, for it is something that would replace Churches as public meeting places on the grounds that such public meeting place will put an undo harm on Churches?

Sorry, sometimes a iron clad rule is better then a fixable rule, in this case an iron clad rule would protect anyone who is directly harmed by a Government support for Religion, but shift any concern of religious freedom to the State Legislatures WHO HAVE THE SOLE POWER OF THE PURSE. In many ways, if we permit "taxpayers" to challenge any act of the Legislatures we are asking the Courts to be a Super Legislature i.e. is taxpayers lose a fight on the floor of the State Legislature (or Congress of local Government) why provide such taxpayers, not personally harmed, to get one more chance to determine tax policy (and remember tax policy is reserved to the Legislature in our understanding of the Separation of powers).

I am sorry, direct attack on how a legislature spends Tax dollars is something reserved to said legislature. If you do not like how it is being spent, run against the incumbents on that issue. otherwise leave the Legislature makes decision when no one has any personal interest in how the money is raised and spent, unless you can show a direct harm. In case of Direct harm the Standing argument does not come into play, if you can show direct harm (NOT harm as a taxpayer) you have standing.
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Warren DeMontague Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-04-11 07:19 PM
Response to Reply #13
14. So, essentially, what you're saying is it's impossible to challenge religious use of tax dollars.
Bullshit.

And it's well known that this current SCOTUS is using "standing" as a way to nullify all sorts of shit they don't like- like environmental laws- without having to actually address the underlying issue.
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happyslug Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-04-11 10:35 PM
Response to Reply #14
15. As a general rule, you can NOT challenge any law unless you are personally affected by it
And affected means something more then you dislike a law. There are a lot of people who wants to challenge the Federal Ban on owning automatic weapons, but to have standing you must be willing to obtain one and NOT register it. If you lose, you spend the rest of your life in jail. If you win you get to keep your machine gun. Notice the high risk of losing, that is why no effort has been made to challenge the ban on automatic weapons, if you fail the price is to high.

The same rule goes for illegal searches and seizures, what the police do you can NOT challenge unless personally affects (and with that personal affect, run the risk of losing and going to Jail).

I bring up the ban on automatic weapons to show how standing affects other areas of the law, even areas this Supreme Court has ruled to be fundamental. Why should the First amendment be any different then the rest of the Bill of Rights? What is good for the goose is good for the gander and the Courts have, except for Faust, NEVER permitted someone to challenge a law unless that person has a personal risk in the case.

You may not like that idea, but it treats everyone the same, much better then the Faust and its "Narrow" exception to the Standing requirement that is the requirement for the rest of the Bill of Rights.

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BzaDem Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-04-11 10:58 PM
Response to Reply #15
17. Excessively formalistic approaches to standing are one of the methods conservatives use to
Edited on Mon Apr-04-11 11:14 PM by BzaDem
write out many applications of Constitutional provisions (if not the provisions themselves).

How about the following general rule: if an absurd approach to standing renders a Constitutional provision (or many applications of said provision) a nullity, then the problem is with the absurd approach to standing (rather than the people trying to vindicate their constitutional rights). Assuming the founders intended their Constitution to actually mean something is often not a ridiculous assumption. In fact, your approach wouldn't just render various Constitutional provisions a nullity -- it would actually prevent any future Constitutional provision that banned the government from acting in a way that wouldn't directly and personally hurt some over others.

As for your prop 8 standing issue, I think that is a primarily state law issue. That's why the appeals court certified the question to the California Supreme Court -- to see whether state law (statutory or Constitutional) allowed for someone else to defend it. If the federal appeals court thought that there was no way anyone else could have Article II standing, they wouldn't have asked the California Supreme Court about a state law issue.

But to the extent that a judge would think that the Article III "case or controversy" standing requirement would prevent anyone from defending the law EVEN if state law allowed it, such an interpretation would be ridiculous. If a state has the power to have a ballot initiative system that overrides the will of the executive, then that state must have the power to defend ballot initiatives if the executive refuses. To claim otherwise would allow an executive to unilaterally repeal (in effect) any ballot measure they choose to.

This has nothing to do with prop 8 itself -- prop 8 is blatantly unconstitutional and the Appeals court will fortunately likely rule in such a way (if they find standing). This has everything to do with not rendering powers and rights to be meaningless (and using excessive formalism to do so).
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Warren DeMontague Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Apr-05-11 01:53 AM
Response to Reply #15
19. That's bullshit. The Bill Of Rights applies to everyone, and contains no such caveat.
And yours is an incredibly radical interpretation that is NOT shared by a large portion of the judiciary- just some of the far right goons which have been placed on the SCOTUS recently.
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blondeatlast Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-04-11 10:53 PM
Response to Original message
16. Yet another reason while I will take a lavender-drenched hankie
into the booth with me next year and vote for Mr. Obama--right now, SCOTUS is pretty much a lost cause for a decade, maybe more, unless we get one or two more justices on our side--and I HATE that SCOTUS has become so clearly political.

:scared:
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elleng Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Apr-04-11 11:14 PM
Response to Original message
18. Damn!
I remember citing Flast v. Cohen in law school class, many moons ago.
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