Arizona Christian School Tuition Organization v. Winn/Garriott v. Winn
The Acting Solicitor General, Neal Katyal, tried to convince the court that the Winn had no taxpayer standing - no legal right to sue - in the original case. This argument was met with skepticism. Accepting Katyal's position would mean that a slew of first amendment and civil rights cases should be overturned, as the complainant had no right to sue as a taxpayer.
Next up, Paula Bickett for Arizona, explained that Arizona set up this convoluted school tuition organization system for funneling money to private schools because the Arizona Constitution prohibits any direct aid to private schools. It's a simple shell game that probably poses no constitutional problems. Arizona's system made sure that no state actor was involved in any way with the decision of transferring tax money to private schools. It was a multi-tiered system that required the "on" switch to be engaged by four separate and distinct sets of decision-makers before funds flowed to private schools from a school tuition organization (STO) - the STO creators who set up the funding mechanism, the STO staff that grants scholarships, contributing taxpayers who fund the STO's, and parents and students who apply for STO scholarships.
Paul Bender, attorney for the taxpayers, perhaps should have chosen a different route, skipping the argument altogether in favor of a bar-hopping bender on U Street. Bender had difficulty establishing a violation of the Establishment Clause. With Bender's call of "It turns on whether when the taxpayer makes the payment the taxpayer is paying the taxpayer's own money or the money the taxpayer owes to the government," evoking a response of "I completely don't understand that" from Justice Alito, the future of the STO seemed pretty secure. When Alito finally understood that the basis of the claim of a violation of the doctrine of separation of church and state hinged on how the tax abatement that funded the STO was implemented - a tax credit after a tax bill is computed, or a tax deduction from income before a tax bill is computed - Justice Alito went ballistic. "So that it's a deduction before the line. This is a major lawsuit??!" Justice Scalia played his joker role, commiserating with the burden the State of Arizona faced if the STO was found to be unconstitutional, "That's the problem; they have to revise their form," and he nailed another gallery-erupting-in-guffaws one-liner.
Chief Justice Roberts seemed to have been incredulous. "So the only difference is that Arizona set up this system where you get a tax credit instead of a tax deduction?"
Bender seemed to have no problem with the STO itself, "There is nothing unconstitutional about the taxpayers sending the money to an STO. If STOs did not discriminate on the basis of religion in giving that money out, there would be no unconstitutionality." Justice Scalia was surprised at their requested remedy, "So it really is just that line in the tax form that you are concerned about, and the only relief you really need is - is changing the tax form?"
I'll bet a kit kat that the STO is A-OK.