The U.S. Supreme Court is preparing to rule on the constitutionality of an Arizona tax credit program that enables taxpayers to receive a dollar-for-dollar reduction in their annual tax bill for contributing to a scholarship fund to assist students attending nonpublic schools, including religious ones.The program was ruled by the Ninth Circuit Court of Appeals to be in violation of the U.S. Constitution’s “Establishment Clause” because most of the scholarship funds that were set up benefited students in religious schools.
A number of other states have tax credit programs of their own, which could also be placed in jeopardy should the Arizona program be ruled unconstitutional by the High Court.
Agudath Israel of America was among several groups that submitted “friend of the court” briefs to the Supreme Court, urging that the program be upheld.
The Agudath Israel brief, explains Rabbi Mordechai Biser, the organization’s associate general counsel, begins by noting that the Ninth Circuit’s decision runs directly counter to the Supreme Court’s own 2002 decision in Zelman v. Simmons-Harris, which upheld the constitutionality of an Ohio school voucher program. In that case, the Court ruled that there is no Establishment Clause violation even in cases where a large majority of recipients of a neutral government aid program happen to be students attending religious schools. The Ninth Circuit’s attempt to distinguish the Zelman case from the Arizona case, Agudath Israel brief argues, was “both untenable and irrelevant.”
What is more, the brief argues, the Ninth Circuit’s decision would lead to precisely the sort of government entanglement with religion that the Establishment Clause prohibits – by requiring an inquiry into whether taxpayers making contributions under a tax credit program have a “religious purpose” in mind when making their payments.
Among other arguments made in the Agudath Israel submission is that if government aid programs should be declared unconstitutional whenever significant numbers of beneficiaries happen to be religious institutions, many established tax credits, tax exemptions, and other enactments would be undermined no less.
“The ability of religious organizations to raise funds central to their very existence would be threatened,” the brief contends, and the message to the millions of Americans who send their children to religious schools and support religious institutions would be that their government now evinces, what the Supreme Court, in Mitchell v. Helms, characterized as “special hostility for those who take their religion seriously, who think that their religion should affect the whole of their lives, or who make the mistake of being effective in transmitting their views to children.”
The Agudath Israel brief was researched and drafted by Rivkah Morgenstern, a student at Cardozo law school serving as a summer legal intern at Agudath Israel, and by Ben D. Manevitz, an attorney in Passaic, New Jersey who volunteered to assist in the effort. Agudath Israel attorneys Rabbi Biser and Rabbi Abba Cohen, director and counsel of Agudath Israel’s Washington office, were involved in overseeing the production of the brief and coordinating efforts with other legal groups also involved in submitting briefs in this case.
“We are hopeful,” says Rabbi Biser, “that the Supreme Court will uphold this important tax credit and thus enable states to continue to enact programs that provide tax incentives for individuals to provide charitable contributions to needy students – whatever school they may attend.”
A ruling on the case is expected in the fall.