ACSTO: Is it a Sour Lemon, or Just Sour Grapes?

• By David Cortman
• Posted Oct 25, 2010
• No Comments »

In the ADF case, ACSTO v Winn, which is currently before the U.S. Supreme Court, the ACLU is challenging Arizona’s tuition tax credit program, claiming that it violates the Establishment Clause.  In case you are not familiar with the program, or with similar programs across the country, here are a few salient facts.  A person can donate to a school tuition organization (STO) and receive a credit on their taxes for the amount donated up to $1,000.  An STO is a nonprofit private 501(c)(3) organization that anyone can form.  Parents then choose a private school for their children and apply to an STO for a scholarship.  Sound harmless?  It is.  So what exactly is the ACLU’s beef?  Does it really violate the so-called “separation of church and state” for the government to allow a tax benefit for supporting nonprofit charities – religious or secular?  You may ask, hasn’t that been decided decades ago, and haven’t I been (legally) tithing to my church or donating to other nonprofits while deducting those donations on my income tax?  Yes.  So what makes this case any different?  Not much.

First a quick legal lesson (don’t worry, there won’t be a test afterwards).  You see, there is a Supreme Court case popularly known as the Lemon case (yes, that was the name of one of the parties).   Lemon announced a test under which Establishment Clauses challenges were analyzed.  In order for a law to be permissible, the government: 1) must have a secular purpose, 2) must not advance or inhibit religion (yes, the government is also prohibited from inhibiting religion (although the ACLU likes to ignore that part)), and 3) must not be excessively entangled (too much continuous monitoring, involvement, etc.) with religion.  This test has often been criticized, even by several members of the Court itself, because it can be too easily manipulated to reach a desired result.  But, as lawyers, we have to work with what we have, whether we like it or not.

So, as distasteful as this test may be, where does the program come out under Lemon?  Not so sour.  The “secular purpose,” put simply, is increasing school choice for parents.  Doesn’t sound religious to me.  Does it “advance religion” to give parents more options other than failing traditional public schools, such as adding charter schools, on-line schools, homeschooling, and private schools – both religious and secular – to the mix?  Nope.  (But it does sound like it would inhibit religion if you were allowed to donate to a secular private school but not a religious one).  And is there any continuing and excessive monitoring and control exerted by the government by providing a tax credit and then completely stepping aside to let private people utilize the program as they see fit?  Doesn’t appear that way.

Since the program operates no differently than a typical tax deduction for a donation to either a religious or secular charity, where’s the beef?  As the Supreme Court said in a similar case, it is merely a religious difference.  The bottom line is that the ACLU and its clients simply do not want religious groups to be able to participate in any governmental program or benefit, even though all secular groups may.  Their definition of “neutral” is a strange one indeed.  They complain that it is somehow no longer neutral because more charities (or private schools) happen to be religiously based.  Or is it because more people choose to support these religious charities?  But remember, under Lemon (I know I told you there wouldn’t be a test, but this is important) the question is whether the government is favoring religion, not whether private people are.  It seems to be more of sour grapes, than a sour Lemon.

To learn more about what’s at stake in the ACSTO v. Winn case, please visit our resource page, School Choice: A Parent’s Right under Attack.