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ARGH !!! - SCOTUS Just Gouged The Establishment Clause; Obama Helped - FDL

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WillyT Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 08:49 PM
Original message
ARGH !!! - SCOTUS Just Gouged The Establishment Clause; Obama Helped - FDL
SCOTUS Just Gouged The Establishment Clause; Obama Helped
By: wendydavis - FDL
Thursday April 7, 2011 11:30 am

<snip>

Earlier this week in a 5-4 decision the High Court refused to overturn an Arizona law that allows taxpayers to receive a dollar-for-dollar state tax credit for their contributions to school scholarships even if they are for religious schools. The credit allowed is up to $500 per person or $1000 per couple. It has cost Arizona approximately $350 million since the law was enacted.

A central concern of the First Amendment was in James Madisons word to prevent government to require taxpayers to three pence of his property for the support of religion. In Arizona Christian School Tuition Organization v. Winn Geoffrey Stone says that:

As the Supreme Court recognized more than forty years ago, as a general proposition the Establishment Clause prohibits government from using its taxing and spending power to favor one religion over another or to support religion in general. Thus, the Establishment Clause forbids government to fund churches to enable them to spread their religious beliefs or to award special tax credits to individuals to reimburse them for their contributions to religious organizations.

He and other legal scholars say that theres a catch in that its been unclear whether citizens have standing to sue over these programs as its difficult to prove that those bringing suit can prove theyve suffered an injury in fact; if not it could lead to either frivolous or weak lawsuits with poor challenges which could harm the legal system. Apparently since no particular individual would be harmed by Establishment issues, it would essentially mean that in reality no one would have standing to sue. Given that thats a pretty unwieldy contention, Stone says:

To solve this problem, the Supreme Court held in Flast v. Cohen in 1968 that taxpayers do have standing to challenge taxing and spending policies that violate the Establishment Clause. Until recently, federal courts at every level, including the Supreme Court, have consistently and broadly applied Flast to enable taxpayers to enforce the Establishment Clause.


More: http://my.firedoglake.com/wendydavis/2011/04/07/scotus-... /

**************************************************************************************

And the "Obama Helped" part...

Very Disappointing: The Obama Administration and the Establishment Clause
ERWIN CHEMERINSKY
POSTED OCTOBER 31ST, 2010

<snip>

...

The United States Court of Appeals for the Ninth Circuit declared this unconstitutional, holding that taxpayers have standing and that the Arizona law violates the Establishment Clause. Under Flast v. Cohen, 392 U.S. 83 (1968), the Court recognized that taxpayers have standing to challenge government expenditures as violating the Establishment Clause of the First Amendment. The Arizona law does exactly that by taking money away from the state treasury and transferring it to the coffers of religious institutions. Moreover, the Ninth Circuit ruled that the law violated the First Amendment because it had the purpose and effect of advancing religion.

It is mystifying as to why the Obama administration decided to participate in this case. There is no comparable federal law. Certainly, the lawyers in the Solicitor Generals office, to say nothing of the President himself, are aware that there are likely five votes on the Supreme Court to change the Establishment Clause in a conservative direction and to allow much more government aid to religion and much more of a religious presence in government. That is what conservatives have long favored and it is inexplicable why a Democratic administration would want to push the Court in this direction.

If taxpayers lack standing to challenge government expenditures as violating the Establishment Clause, there will be no way to halt government programs which directly subsidize religion. Equally troubling, if the Arizona law is upheld, it will encourage other similar programs across the country which exist solely to funnel taxpayer monies to religious schools.

Since the Reagan administration, conservatives have sought to eliminate the notion of a wall separating church and state. It is sad and very troubling to see the Obama administration lending its support for this effort.


<snip>

Link: http://www.thecocklebur.com/supreme-court/very-disappoi...

:argh:

:wtf:

:banghead:

:beer:

:puke:


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Angry Dragon Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 08:53 PM
Response to Original message
1. ............
:evilfrown:

:hurts:


:nuke:
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proud patriot Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 08:56 PM
Response to Original message
2. grumble
x(
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bluestateguy Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 08:57 PM
Response to Original message
3. A bad policy, but I fail to see the constitutional problem
You can already get an income tax deduction for college tuition, even if that tuition is for a religious school

As long as the program is religiously neutral, and allows the same tax credits for donations to Muslim, Hindu, Jewish, Christian and other faith schools, I do not see a 1st amendment issue.
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dixiegrrrrl Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:11 PM
Response to Reply #3
10. Look again
The Arizona law does exactly that by taking money away from the state treasury and transferring it to the coffers of religious institutions. Moreover, the Ninth Circuit ruled that the law violated the First Amendment because it had the purpose and effect of advancing religion.
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WillyT Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:14 PM
Response to Reply #10
12. Thank You dg !!!
:yourock:

:hi:
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msanthrope Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:33 PM
Response to Reply #10
21. This was a ruling on standing. The 9th incorrectly considered the Establishment clause.
Edited on Thu Apr-07-11 09:38 PM by msanthrope
The 9th Circuit incorrectly granted Article III standing in violation of Flast.

Therefore, SCOTUS never reached any Establishment issue. So Zelman (2002) is undisturbed.

Now, I have issues about taxpayer standing, but this isn't a very good first amendment case.

Further, I think you have incorrectly characterized the state tax credit--it is not a direct government expenditure, and there's the rub, constitutionally.
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Tatersbrowning Donating Member (11 posts) Send PM | Profile | Ignore Thu Apr-07-11 09:34 PM
Response to Reply #10
22. The Arizona law does exactly that by taking money away from the state treasury and transferring it t
Actually, it doesn't 'take' money from the treasury, it simply allows people to keep some of their own money to help pay their childrens' tuition. That's not a government support of a religion. There's no reason to think that more will go to religious based schools than will go to secular schools. To over-ride the bill on that basis would actually be religious discrimination.
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msanthrope Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:35 PM
Response to Reply #10
23. double post
Edited on Thu Apr-07-11 09:36 PM by msanthrope
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msanthrope Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:18 PM
Response to Reply #3
15. The case was actually more about taxpayer standing to sue. But of course FDL goes for the hysteria.
I think the Obama DOJ did a great job of attempting to correctly analyze the law, rather than politicize their briefs. Here, the administration did a good job of addressing the issue of taxpayer standing.
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LoZoccolo Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 08:58 PM
Response to Original message
4. Fire Dog Lake: automatic unrecommend n/t
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WillyT Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:00 PM
Response to Reply #4
5. Thanks LZ... You're Nothing, If Not Consistent...
:rofl:

:evilgrin:

:hi:
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Bluenorthwest Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:01 PM
Response to Reply #4
6. Rec'd because you asked so nicely!
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pintobean Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:05 PM
Response to Reply #4
7. Recced just to counter silliness
But I think the op is crap and not worthy of a rec.
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WillyT Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:10 PM
Response to Reply #7
9. So... Taxpayer Money Going To Religious Schools Is OK By You ???
Please... elaborate.

:shrug:
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pintobean Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:13 PM
Response to Reply #9
11. I agree with bluestateguy
I fail to see the constitutional problem.
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WillyT Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:20 PM
Response to Reply #11
16. Private/Religious Schools Have To Be Self-Funded... Period!
That's why they are private.

Public Schools are governmentally (tax payer) supported, and that money CANNOT be used to support private/religious schools.

Otherwise you would end up with... Public Religious Schools.

Unconstitutional!!!

:shrug:

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pintobean Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:27 PM
Response to Reply #16
20. Says who? Taxpayer money goes to a
shitload of private entities, religious and non-religious. Tell me what religion the government is establishing.
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WillyT Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:38 PM
Response to Reply #20
24. Well Yeah... They've Been Chipping Away At The Separation Of Church And State For Years Now...
You wanna help them???

The Obama Administration certainly did.

:wtf:
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pintobean Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:41 PM
Response to Reply #24
27. Its referred to as the establishment clause
"Separation Of Church And State" isn't in the constitution.
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WillyT Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:43 PM
Response to Reply #27
28. Oh... I See...
Onward Christian Soldier !!!

:evilfrown:

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pintobean Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:47 PM
Response to Reply #28
30. Maybe you should take another look at your op
and the words YOU used. Onward Christian Soldier?
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ProSense Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 10:49 PM
Response to Reply #30
33. Well, it's a good thing
President Obama didn't have a vote and his two SCOTUS appointees were on the right side of the issue.

Supreme Court Allows Tax Credit for Religious Tuition

By ADAM LIPTAK

WASHINGTON The Supreme Court on Monday let stand an Arizona program that aids religious schools, saying in a 5-to-4 decision that the plaintiffs had no standing to challenge it.

<...>

Justice Elena Kagan, in her first dissent, said the majority had laid waste to the doctrine of taxpayer standing, which allows suits from people who object to having tax money spent on religious matters. The courts opinion, Justice Kagan wrote, offers a road map more truly, just a one-step instruction to any government that wishes to insulate its financing of religious activity from legal challenge.

The decision divided the court along the usual ideological lines, with the three other more liberal members Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor joining the dissent.

more




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WillyT Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 10:55 PM
Response to Reply #33
34. Thanks Pro !!!
:D

:hi:
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ProSense Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 11:01 PM
Response to Reply #34
35. Sorry,
meant this as a response to the OP, not the poster.



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pintobean Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Apr-08-11 09:45 AM
Response to Reply #35
37. Thanks for the clarification
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BlueJazz Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:40 PM
Response to Reply #16
26. I agree with you 100 percent. This "Back-Door" crap is just another con job.
Edited on Thu Apr-07-11 09:41 PM by BlueJazz
Obama is turning out to be just another mealy mouth Politition.
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inna Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:10 PM
Response to Reply #4
8. thanks for reminding to rec! very nice job, i appreciate that!
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Bluebear Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:15 PM
Response to Reply #4
13. If you unrec it, it must be vaulable reading. nt
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Logical Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:21 PM
Response to Reply #4
17. I countered you for not explaining anything. n-t
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BillyJack Donating Member (653 posts) Send PM | Profile | Ignore Thu Apr-07-11 09:17 PM
Response to Original message
14. Playing the devil's advocate here for a moment.....
I have always understood those tax credits, which are really pretty modest if you think about it, were given b/c the taxpayers WERE paying, through their taxes for the local grade, middle, and high schools that they were supporting, yet CHOOSING not to use for their own children - for whatever reason.

Those taxpayers were spending the extra tuition money at a private school, which would beway more than $500-1000/year, that they would get in a 'credit'.

Heck, if all the people who send their children to private schools were to suddenly STOP and put their children into the public schools, it would put a MASSIVE burden on an already strained system. No one would be happy.

Giving a $500-1000 tax credit incentive to families who choose to put their children into a 'private' school sounds like a howling bargain for already cash-strapped school districts to keep all of those private school kids 'AWAY' and out of an already burdened system.

/end of Devil's advocate think
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WillyT Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:26 PM
Response to Reply #14
19. Well... The Taxpayer/Government/Society Provides Education To All (Public)...
and yeah... if you do not want to avail yourself of that option, you will continue to be taxed to support the eduction of children in general, AND have to come up with more monies to send your kids to a private institution.

If the private institution wants to provide help in the form of grants and scholarships to help poorer kids get into a private school, great!

BUT NO PUBLIC MONEY, PERIOD!

:shrug:
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xchrom Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:26 PM
Response to Original message
18. Recommend
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readmoreoften Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:39 PM
Response to Original message
25. You mean the Office of Faith-Based Funding is promoting faith-based funding?
Whodathunk it? Isn't that why we always thought this was a bad idea? Why it always was a right-wing concept? Just puttin' that out there.
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WillyT Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 09:45 PM
Response to Reply #25
29. Established By George W. Bush...
Fucking great.
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pintobean Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 10:16 PM
Response to Original message
31. That was weak.
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darkstar3 Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Apr-07-11 10:46 PM
Response to Original message
32. I'm always interested in separation of church and state, but I don't see the issue here.
I believe it comes down to a simple question: Since the scholarships being funded are non-discriminatory, meaning that they could be scholarships to ANY school of ANY affiliation, how does this tax benefit establish a religion?

I think if something is suspected of violating the Establishment Clause, it should be clear which religion, specific or generic, is being established.
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_ed_ Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Apr-08-11 09:41 AM
Response to Original message
36. Obama continuing Bush's work
as per usual.
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