The Constitutionality of Funding through Intermediaries

The United States Supreme Court recently heard arguments on the case Arizona Christian School Tuition v. Winn. The Court must decide whether the tax credit violates the Establishment Clause by allowing money to flow from the people to a private tuition organization through a government tax credit. It must also determine if the tuition organizations are truly private institutions, or if they are essentially bodies of the state, a fact some justices are questioning.

The deciding question is whether the Arizona government is in violation of the Establishment Clause by allowing money to flow from the people to a private tuition organization through a government tax credit. It must also determine if the tuition organizations are truly private institutions, or if they are essentially bodies of the state: a fact some justices are questioning.

The difference between a taxpayer funding a religiously focused program through the government versus independently is key. The option to allocate a certain amount of tax dollars to tuition organizations that fund religious schools violates the Establishment Clause because it directs the government to fund a religiously focused program. At the most fundamental level, this means that the government is affiliating itself with religion, which is unconstitutional.

Justice Kagan questioned the legitimacy of the defendant’s argument by questioning why states should be allowed to establish and use intermediaries in order to do things they are not constitutionally permitted. A ruling in favor of Arizona would reduce the separation of the government and private sector, allowing for government to circumvent the limits on its power by using private institutions to do whatever it is they are forbidden to do themselves. A ruling in favor of Winn would prevent this from happening, but it would also limit the government’s ability to solve certain problems that it cannot solve itself, and force it to rely upon the private sector to take a public interest independent of government influence.