Arizona Christian School Tuition Organization v. Winn ( 2011 )

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZA-
TION v. WINN ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 09–987. Argued November 3, 2010—Decided April 4, 2011*
Respondents, Arizona taxpayers, sued petitioner Director of the State
Department of Revenue, challenging Ariz. Rev. Stat. Ann. §43–1089
on Establishment Clause grounds. The Arizona law gives tax credits
for contributions to school tuition organizations, or STOs, which then
use the contributions to provide scholarships to students attending
private schools, including religious schools. Petitioner Arizona Chris
tian School Tuition Organization and others later intervened. The
District Court dismissed the suit for failure to state a claim. Revers
ing, the Ninth Circuit held that respondents had standing as taxpay
ers under Flast v. Cohen, 392 U. S. 83, and had stated an Establish
ment Clause claim.
Held: Because respondents challenge a tax credit as opposed to a gov
ernmental expenditure, they lack Article III standing under Flast v.
Cohen, supra. Pp. 4–19.
(a) Article III vests in the Federal Judiciary the “Power” to resolve
“Cases” and “Controversies.” That language limits the Federal Judi
ciary to the traditional role of Anglo-American courts: redressing in
juries resulting from a specific legal dispute. To obtain a ruling on
the merits in federal court a plaintiff must assert more than just the
“generalized interest of all citizens in constitutional governance.”
Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 217.
Instead the plaintiff must establish standing, which requires “an ‘in
jury in fact’”; “a causal connection between the injury and the conduct
——————
* Together with No. 09–991, Garriott, Director, Arizona Department
of Revenue v. Winn et al., also on certiorari to the same court.
2 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
WINN
Syllabus
complained of”; and a conclusion that it is “‘likely,’ as opposed to
merely ‘speculative,’ that the injury will be ‘redressed by a favorable
decision.’ ” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561.
Pp. 4–6.
(b) In general, the mere fact that someone is a taxpayer does not
provide standing to seek relief in federal court. The typical assertion
of taxpayer standing rests on unjustifiable economic and political
speculation. See Frothingham v. Mellon, 262 U. S. 447; Doremus v.
Board of Ed. of Hawthorne, 342 U. S. 429. When a government ex
pends resources or declines to impose a tax, its budget does not nec
essarily suffer. Even assuming the State’s coffers are depleted, find
ing injury would require a court to speculate “that elected officials
will increase a taxpayer-plaintiff’s tax bill to make up a deficit.”
DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 344. And to find re
dressability a court must assume that, were the taxpayers’ remedy
allowed, “legislators [would] pass along the supposed increased reve
nue in the form of tax reductions.” Ibid. These conclusions apply to
the present cases. The costs of education may be a significant portion
of Arizona’s annual budget, but the tax credit, by facilitating the op
eration of both religious and secular private schools, could relieve the
burden on public schools and provide cost savings to the State. Even
if the tax credit had an adverse effect on Arizona’s budget, problems
would remain. To find a particular injury in fact would require
speculation that Arizona lawmakers react to revenue shortfalls by in
creasing respondents’ tax liability. A causation finding would depend
on the additional assumption that any tax increase would be trace
able to the STO tax credit. And respondents have not established
that an injunction against the credit’s application would prompt Ari
zona legislators to “pass along [any] increased revenue [as] tax reduc
tions.” Ibid. Pp. 6–10.
(c) Respondents’ suit does not fall within the narrow exception to
the rule against taxpayer standing established in Flast v. Cohen, su
pra. There, federal taxpayers had standing to mount an Establish
ment Clause challenge to a federal statute providing General Treas
ury funds to support, inter alia, textbook purchases for religious
schools. To have standing under Flast, taxpayers must show (1) a
“logical link” between the plaintiff’s taxpayer status “and the type of
legislative enactment attacked,” and (2) “a nexus” between such tax
payer status and “the precise nature of the constitutional infringe
ment alleged.” 392 U. S., at 102. Considering the two requirements
together, Flast explained that individuals suffer a particular injury
when, in violation of the Establishment Clause and by means of “the
taxing and spending power,” their property is transferred through
the Government’s Treasury to a sectarian entity. Id., at 105–106.
Cite as: 563 U. S. ____ (2011) 3
Syllabus
“The taxpayer’s allegation in such cases would be that his tax money
is being extracted and spent in violation of specific constitutional pro-
tections against such abuses of legislative power.” Id., at 106. The
STO tax credit does not visit the injury identified in Flast. When the
Government spends funds from the General Treasury, dissenting
taxpayers know that they have been made to contribute to an estab-
lishment in violation of conscience. In contrast, a tax credit allows
dissenting taxpayers to use their own funds in accordance with their
own consciences. Here, the STO tax credit does not “extrac[t] and
spen[d]” a conscientious dissenter’s funds in service of an establish-
ment, 392 U. S., at 106, or “ ‘force a citizen to contribute’ ” to a sectar-
ian organization, id., at 103. Rather, taxpayers are free to pay their
own tax bills without contributing to an STO, to contribute to a reli-
gious or secular STO of their choice, or to contribute to other charita-
ble organizations. Because the STO tax credit is not tantamount to a
religious tax, respondents have not alleged an injury for standing
purposes. Furthermore, respondents cannot satisfy the requirements
of causation and redressability. When the government collects and
spends taxpayer money, governmental choices are responsible for the
transfer of wealth; the resulting subsidy of religious activity is, under
Flast, traceable to the government’s expenditures; and an injunction
against those expenditures would address taxpayer-plaintiffs’ objec-
tions of conscience. Here, by contrast, contributions result from the
decisions of private taxpayers regarding their own funds. Private
citizens create private STOs; STOs choose beneficiary schools; and
taxpayers then contribute to STOs. Any injury the objectors may suf-
fer are not fairly traceable to the government. And, while an injunc-
tion most likely would reduce contributions to STOs, that remedy
would not affect noncontributing taxpayers or their tax payments.
Pp. 10–16.
(d) Respondents’ contrary position—that Arizonans benefiting from
the tax credit in effect are paying their state income tax to STOs—
assumes that all income is government property, even if it has not
come into the tax collector’s hands. That premise finds no basis in
standing jurisprudence. This Court has sometimes reached the merits
in Establishment Clause cases involving tax benefits as opposed to
governmental expenditures. See Mueller v. Allen, 463 U. S. 388;
Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756;
Hunt v. McNair, 413 U. S. 734; Walz v. Tax Comm’n of City of New
York, 397 U. S. 664. But those cases did not mention standing and so
do not stand for the proposition that no jurisdictional defects existed.
Moreover, it is far from clear that any nonbinding sub silentio standing
determinations in those cases depended on Flast, as there are other
ways of establishing standing in Establishment Clause cases involving
tax benefits. Pp. 16–18.
4 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
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Syllabus
562 F. 3d 1002, reversed.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a
concurring opinion, in which THOMAS, J., joined. KAGAN, J., filed a dis
senting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ.,
joined.
Cite as: 563 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 09–987 and 09–991
_________________
ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZA-
TION, PETITIONER
09–987 v.
KATHLEEN M. WINN ET AL.
GALE GARRIOTT, DIRECTOR, ARIZONA DEPART-
MENT OF REVENUE, PETITIONER
09–991 v.
KATHLEEN M. WINN ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 4, 2011]
JUSTICE KENNEDY delivered the opinion of the Court.
Arizona provides tax credits for contributions to school
tuition organizations, or STOs. STOs use these contribu­
tions to provide scholarships to students attending private
schools, many of which are religious. Respondents are a
group of Arizona taxpayers who challenge the STO tax
credit as a violation of Establishment Clause principles
under the First and Fourteenth Amendments. After the
Arizona Supreme Court rejected a similar Establishment
Clause claim on the merits, respondents sought interven­
tion from the Federal Judiciary.
To obtain a determination on the merits in federal court,
parties seeking relief must show that they have standing
under Article III of the Constitution. Standing in Estab­
2 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
WINN
Opinion of the Court
lishment Clause cases may be shown in various ways.
Some plaintiffs may demonstrate standing based on the
direct harm of what is claimed to be an establishment of
religion, such as a mandatory prayer in a public school
classroom. See School Dist. of Abington Township v.
Schempp, 374 U. S. 203, 224, n. 9 (1963). Other plaintiffs
may demonstrate standing on the ground that they have
incurred a cost or been denied a benefit on account of their
religion. Those costs and benefits can result from alleged
discrimination in the tax code, such as when the availabil­
ity of a tax exemption is conditioned on religious affilia­
tion. See Texas Monthly, Inc. v. Bullock, 489 U. S. 1, 8
(1989) (plurality opinion).
For their part, respondents contend that they have
standing to challenge Arizona’s STO tax credit for one and
only one reason: because they are Arizona taxpayers. But
the mere fact that a plaintiff is a taxpayer is not generally
deemed sufficient to establish standing in federal court.
To overcome that rule, respondents must rely on an excep­
tion created in Flast v. Cohen, 392 U. S. 83 (1968). For the
reasons discussed below, respondents cannot take advan­
tage of Flast’s narrow exception to the general rule against
taxpayer standing. As a consequence, respondents lacked
standing to commence this action, and their suit must be
dismissed for want of jurisdiction.
I
Respondents challenged §43–1089, a provision of the
Arizona Tax Code. See 1997 Ariz. Sess. Laws §43–1087,
codified, as amended, Ariz. Rev. Stat. Ann. §43–1089
(West Supp. 2010). Section 43–1089 allows Arizona tax­
payers to obtain dollar-for-dollar tax credits of up to $500
per person and $1,000 per married couple for contribu­
tions to STOs. §43–1089(A). If the credit exceeds an
individual’s tax liability, the credit’s unused portion can be
carried forward up to five years. §43–1089(D). Under a
Cite as: 563 U. S. ____ (2011) 3
Opinion of the Court
version of §43–1089 in effect during the pendency of this
lawsuit, a charitable organization could be deemed an
STO only upon certain conditions. See §43–1089 (West
2006). The organization was required to be exempt from
federal taxation under §501(c)(3) of the Internal Revenue
Code of 1986. §43–1089(G)(3) (West Supp. 2005). It could
not limit its scholarships to students attending only one
school. Ibid. And it had to allocate “at least ninety per
cent of its annual revenue for educational scholarships or
tuition grants” to children attending qualified schools.
Ibid. A “qualified school,” in turn, was defined in part as a
private school in Arizona that did not discriminate on the
basis of race, color, handicap, familial status, or national
origin. §43–1089(G)(2).
In an earlier lawsuit filed in state court, Arizona tax­
payers challenged §43–1089, invoking both the United
States Constitution and the Arizona Constitution. The
Arizona Supreme Court rejected the taxpayers’ claims on
the merits. Kotterman v. Killian, 193 Ariz. 273, 972 P. 2d
606 (1999). This Court denied certiorari. Rhodes v.
Killian, 528 U. S. 810 (1999); Kotterman v. Killian, 528
U. S. 921 (1999).
The present action was filed in the United States Dis­
trict Court for the District of Arizona. It named the Direc­
tor of the Arizona Department of Revenue as defendant.
The Arizona taxpayers who brought the suit claimed that
§43–1089 violates the Establishment Clause of the First
Amendment, as incorporated against the States by the
Fourteenth Amendment. Respondents alleged that §43–
1089 allows STOs “to use State income-tax revenues to
pay tuition for students at religious schools,” some of
which “discriminate on the basis of religion in selecting
students.” Complaint in No. 00–0287 (D Ariz.), ¶¶29–31,
App. to Pet. for Cert. in No. 09–987, pp. 125a–126a. Re­
spondents requested, among other forms of relief, an
injunction against the issuance of §43–1089 tax credits for
4 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
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Opinion of the Court
contributions to religious STOs. The District Court dis­
missed respondents’ suit as jurisdictionally barred by the
Tax Injunction Act, 28 U. S. C. §1341. The Court of Ap­
peals reversed. This Court agreed with the Court of
Appeals and affirmed. Hibbs v. Winn, 542 U. S. 88 (2004).
On remand, the Arizona Christian School Tuition Or­
ganization and other interested parties intervened. The
District Court once more dismissed respondents’ suit, this
time for failure to state a claim. Once again, the Court of
Appeals reversed. It held that respondents had standing
under Flast v. Cohen, supra. 562 F. 3d 1002 (CA9 2009).
Reaching the merits, the Court of Appeals ruled that
respondents had stated a claim that §43–1089 violated the
Establishment Clause of the First Amendment. The full
Court of Appeals denied en banc review, with eight judges
dissenting. 586 F. 3d 649 (CA9 2009). This Court granted
certiorari. 560 U. S. __ (2010).
II
The concept and operation of the separation of powers
in our National Government have their principal founda­
tion in the first three Articles of the Constitution. Under
Article III, the Federal Judiciary is vested with the
“Power” to resolve not questions and issues but “Cases” or
“Controversies.” This language restricts the federal judi­
cial power “to the traditional role of the Anglo-American
courts.” Summers v. Earth Island Institute, 555 U. S. 488,
___ (2009) (slip op., at 4). In the English legal tradition,
the need to redress an injury resulting from a specific
dispute taught the efficacy of judicial resolution and gave
legitimacy to judicial decrees. The importance of resolving
specific cases was visible, for example, in the incremental
approach of the common law and in equity’s consideration
of exceptional circumstances. The Framers paid heed to
these lessons. See U. S. Const., Art. III, § 2 (“The judicial
Power shall extend to all Cases, in Law and Equity . . . ”).
Cite as: 563 U. S. ____ (2011) 5
Opinion of the Court
By rules consistent with the longstanding practices of
Anglo-American courts a plaintiff who seeks to invoke the
federal judicial power must assert more than just the
“generalized interest of all citizens in constitutional gov­
ernance.” Schlesinger v. Reservists Comm. to Stop the
War, 418 U. S. 208, 217 (1974).
Continued adherence to the case-or-controversy re­
quirement of Article III maintains the public’s confidence
in an unelected but restrained Federal Judiciary. If the
judicial power were “extended to every question under the
constitution,” Chief Justice Marshall once explained,
federal courts might take possession of “almost every
subject proper for legislative discussion and decision.” 4
Papers of John Marshall 95 (C. Cullen ed. 1984) (quoted in
DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 341 (2006)).
The legislative and executive departments of the Federal
Government, no less than the judicial department, have a
duty to defend the Constitution. See U. S. Const., Art. VI,
cl. 3. That shared obligation is incompatible with the
suggestion that federal courts might wield an “uncondi­
tioned authority to determine the constitutionality of
legislative or executive acts.” Valley Forge Christian
College v. Americans United for Separation of Church and
State, Inc., 454 U. S. 464, 471 (1982). For the federal
courts to decide questions of law arising outside of cases
and controversies would be inimical to the Constitution’s
democratic character. And the resulting conflict between
the judicial and the political branches would not, “in the
long run, be beneficial to either.” United States v.
Richardson, 418 U. S. 166, 188–189 (1974) (Powell, J.,
concurring). Instructed by Chief Justice Marshall’s admo­
nition, this Court takes care to observe the “role assigned
to the judiciary” within the Constitution’s “tripartite
allocation of power.” Valley Forge, supra, at 474 (internal
quotation marks omitted).
6 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
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Opinion of the Court
III
To state a case or controversy under Article III, a plain­
tiff must establish standing. Allen v. Wright, 468 U. S.
737, 751 (1984). The minimum constitutional require­
ments for standing were explained in Lujan v. Defenders
of Wildlife, 504 U. S. 555 (1992).
“First, the plaintiff must have suffered an ‘injury in
fact’—an invasion of a legally protected interest which
is (a) concrete and particularized, and (b) ‘actual or
imminent, not “conjectural” or “hypothetical.’ ” Sec­
ond, there must be a causal connection between the
injury and the conduct complained of—the injury has
to be ‘fairly . . . trace[able] to the challenged action of
the defendant, and not . . . th[e] result [of] the inde­
pendent action of some third party not before the
court.’ Third, it must be ‘likely,’ as opposed to merely
‘speculative,’ that the injury will be ‘redressed by a fa­
vorable decision.’ ” Id., at 560–561 (citations and foot­
note omitted).
In requiring a particular injury, the Court meant “that the
injury must affect the plaintiff in a personal and individ­
ual way.” Id., at 560, n. 1. The question now before the
Court is whether respondents, the plaintiffs in the trial
court, satisfy the requisite elements of standing.
A
Respondents suggest that their status as Arizona tax­
payers provides them with standing to challenge the STO
tax credit. Absent special circumstances, however, stand­
ing cannot be based on a plaintiff’s mere status as a tax­
payer. This Court has rejected the general proposition
that an individual who has paid taxes has a “continuing,
legally cognizable interest in ensuring that those funds
are not used by the Government in a way that violates the
Constitution.” Hein v. Freedom From Religion Founda
Cite as: 563 U. S. ____ (2011) 7
Opinion of the Court
tion, Inc., 551 U. S. 587, 599 (2007) (plurality opinion).
This precept has been referred to as the rule against tax­
payer standing.
The doctrinal basis for the rule was discussed in Froth
ingham v. Mellon, 262 U. S. 447 (1923) (decided with
Massachusetts v. Mellon). There, a taxpayer-plaintiff had
alleged that certain federal expenditures were in excess
of congressional authority under the Constitution. The
plaintiff argued that she had standing to raise her claim
because she had an interest in the Government Treasury
and because the allegedly unconstitutional expenditure of
Government funds would affect her personal tax liability.
The Court rejected those arguments. The “effect upon
future taxation, of any payment out of funds,” was too
“remote, fluctuating and uncertain” to give rise to a case
or controversy. Id., at 487. And the taxpayer-plaintiff’s
“interest in the moneys of the Treasury,” the Court recog­
nized, was necessarily “shared with millions of others.”
Ibid. As a consequence, Frothingham held that the tax­
payer-plaintiff had not presented a “judicial controversy”
appropriate for resolution in federal court but rather a
“matter of public . . . concern” that could be pursued only
through the political process. Id., at 487–489.
In a second pertinent case, Doremus v. Board of Ed. of
Hawthorne, 342 U. S. 429 (1952), the Court considered
Frothingham’s prohibition on taxpayer standing in con­
nection with an alleged Establishment Clause violation. A
New Jersey statute had provided that public school teach­
ers would read Bible verses to their students at the start
of each schoolday. A plaintiff sought to have the law
enjoined, asserting standing based on her status as a
taxpayer. Writing for the Court, Justice Jackson reiter­
ated the foundational role that Article III standing plays
in our separation of powers.
8 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
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Opinion of the Court
“ ‘The party who invokes the power [of the federal
courts] must be able to show not only that the statute
is invalid, but that he has sustained or is immediately
in danger of sustaining some direct injury as a result
of its enforcement, and not merely that he suffers in
some indefinite way in common with people gener­
ally.’ ” Doremus, supra, at 434 (quoting Frothingham,
supra, at 488).
The plaintiff in Doremus lacked any “direct and particular
financial interest” in the suit, and, as a result, a decision
on the merits would have been merely “advisory.” 342
U. S., at 434–435. It followed that the plaintiff’s allega­
tions did not give rise to a case or controversy subject to
judicial resolution under Article III. Ibid. Cf. School Dist.
of Abington Township v. Schempp, 374 U. S., at 224, n. 9(finding standing where state laws required Bible readings
or prayer in public schools, not because plaintiffs were
state taxpayers but because their children were enrolled
in public schools and so were “directly affected” by the
challenged laws).
In holdings consistent with Frothingham and Doremus,
more recent decisions have explained that claims of tax­
payer standing rest on unjustifiable economic and political
speculation. When a government expends resources or
declines to impose a tax, its budget does not necessarily
suffer. On the contrary, the purpose of many governmen­
tal expenditures and tax benefits is “to spur economic
activity, which in turn increases government revenues.”
DaimlerChrysler, 547 U. S., at 344.
Difficulties persist even if one assumes that an expendi­
ture or tax benefit depletes the government’s coffers. To
find injury, a court must speculate “that elected officials
will increase a taxpayer-plaintiff’s tax bill to make up a
deficit.” Ibid. And to find redressability, a court must
assume that, were the remedy the taxpayers seek to be
Cite as: 563 U. S. ____ (2011) 9
Opinion of the Court
allowed, “legislators will pass along the supposed in­
creased revenue in the form of tax reductions.” Ibid. It
would be “pure speculation” to conclude that an injunction
against a government expenditure or tax benefit “would
result in any actual tax relief” for a taxpayer-plaintiff.
ASARCO Inc. v. Kadish, 490 U. S. 605, 614 (1989) (opinion
of KENNEDY, J.).
These well-established principles apply to the present
cases. Respondents may be right that Arizona’s STO tax
credits have an estimated annual value of over $50 mil­
lion. See Brief for Respondent Winn et al. 42; see also
Arizona Dept. of Revenue, Revenue Impact of Arizona’s
Tax Expenditures FY 2009/10, p. 48 (preliminary Nov. 15,
2010) (reporting the total estimated “value” of STO tax
credits claimed over a 1-year period). The education of its
young people is, of course, one of the State’s principal
missions and responsibilities; and the consequent costs
will make up a significant portion of the state budget.
That, however, is just the beginning of the analysis.
By helping students obtain scholarships to private
schools, both religious and secular, the STO program
might relieve the burden placed on Arizona’s public
schools. The result could be an immediate and permanent
cost savings for the State. See Brief for Petitioner Arizona
Christian School Tuition Organization 31 (discussing
studies indicating that the STO program may on net save
the State money); see also Mueller v. Allen, 463 U. S. 388,
395 (1983) (“By educating a substantial number of stu­
dents [private] schools relieve public schools of a corre­
spondingly great burden—to the benefit of all taxpayers”).
Underscoring the potential financial benefits of the STO
program, the average value of an STO scholarship may be
far less than the average cost of educating an Arizona
public school student. See Brief for Petitioner Garriott 38.
Because it encourages scholarships for attendance at
private schools, the STO tax credit may not cause the
10 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
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Opinion of the Court
State to incur any financial loss.
Even assuming the STO tax credit has an adverse effect
on Arizona’s annual budget, problems would remain. To
conclude there is a particular injury in fact would require
speculation that Arizona lawmakers react to revenue
shortfalls by increasing respondents’ tax liability. Daim
lerChrysler, 547 U. S., at 344. A finding of causation
would depend on the additional determination that any
tax increase would be traceable to the STO tax credits, as
distinct from other governmental expenditures or other
tax benefits. Respondents have not established that an
injunction against application of the STO tax credit would
prompt Arizona legislators to “pass along the supposed
increased revenue in the form of tax reductions.” Ibid.Those matters, too, are conjectural.
Each of the inferential steps to show causation and
redressability depends on premises as to which there
remains considerable doubt. The taxpayers have not
shown that any interest they have in protecting the State
Treasury would be advanced. Even were they to show
some closer link, that interest is still of a general charac­
ter, not particular to certain persons. Nor have the tax­
payers shown that higher taxes will result from the tuition
credit scheme. The rule against taxpayer standing, a rule
designed both to avoid speculation and to insist on par­
ticular injury, applies to respondents’ lawsuit. The tax­
payers, then, must rely on an exception to the rule, an
exception next to be considered.
B
The primary contention of respondents, of course, is
that, despite the general rule that taxpayers lack standing
to object to expenditures alleged to be unconstitutional,
their suit falls within the exception established by Flast v.
Cohen, 392 U. S. 83. It must be noted at the outset that,
as this Court has explained, Flast’s holding provides a
Cite as: 563 U. S. ____ (2011) 11
Opinion of the Court
“narrow exception” to “the general rule against taxpayer
standing.” Bowen v. Kendrick, 487 U. S. 589, 618 (1988).
At issue in Flast was the standing of federal taxpayers
to object, on First Amendment grounds, to a congressional
statute that allowed expenditures of federal funds from
the General Treasury to support, among other programs,
“instruction in reading, arithmetic, and other subjects in
religious schools, and to purchase textbooks and other
instructional materials for use in such schools.” 392 U. S.,
at 85–86. Flast held that taxpayers have standing when
two conditions are met.
The first condition is that there must be a “logical link”
between the plaintiff’s taxpayer status “and the type of
legislative enactment attacked.” Id., at 102. This condi­
tion was not satisfied in Doremus because the statute
challenged in that case—providing for the recitation of
Bible passages in public schools—involved at most an
“incidental expenditure of tax funds.” Flast, 392 U. S., at
102. In Flast, by contrast, the allegation was that the
Federal Government violated the Establishment Clause in
the exercise of its legislative authority both to collect and
spend tax dollars. Id., at 103. In the decades since Flast,
the Court has been careful to enforce this requirement.
See Hein, 551 U. S. 587 (no standing under Flast to chal­
lenge federal executive actions funded by general appro­
priations); Valley Forge, 454 U. S. 464 (no standing under
Flast to challenge an agency’s decision to transfer a parcel
of federal property pursuant to the Property Clause).
The second condition for standing under Flast is that
there must be “a nexus” between the plaintiff’s taxpayer
status and “the precise nature of the constitutional in­
fringement alleged.” 392 U. S., at 102. This condition was
deemed satisfied in Flast based on the allegation that
Government funds had been spent on an outlay for relig­
ion in contravention of the Establishment Clause. Id., at
85–86. In Frothingham, by contrast, the claim was that
12 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
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Opinion of the Court
Congress had exceeded its constitutional authority with­
out regard to any specific prohibition. 392 U. S., at 104–
105. Confirming that Flast turned on the unique features
of Establishment Clause violations, this Court has “de­
clined to lower the taxpayer standing bar in suits alleging
violations of any constitutional provision apart from the
Establishment Clause.” Hein, supra, at 609 (plurality
opinion); see also Richardson, 418 U. S. 166 (Statement
and Account Clause); Schlesinger, 418 U. S. 208 (Incom­
patibility Clause).
After stating the two conditions for taxpayer standing,
Flast considered them together, explaining that individu­
als suffer a particular injury for standing purposes when,
in violation of the Establishment Clause and by means of
“the taxing and spending power,” their property is trans­
ferred through the Government’s Treasury to a sectarian
entity. 392 U. S., at 105–106. As Flast put it: “The tax­
payer’s allegation in such cases would be that his tax
money is being extracted and spent in violation of specific
constitutional protections against such abuses of legisla­
tive power.” Id., at 106. Flast thus “understood the ‘in­
jury’ alleged in Establishment Clause challenges to federal
spending to be the very ‘extract[ion] and spen[ding]’ of ‘tax
money’ in aid of religion alleged by a plaintiff.” Daimler-
Chrysler, 547 U. S., at 348 (quoting Flast, 392 U. S., at
106)). “Such an injury,” Flast continued, is unlike “gener­
alized grievances about the conduct of government” and so
is “appropriate for judicial redress.” Id., at 106.
Flast found support for its finding of personal injury in
“the history of the Establishment Clause,” particularly
James Madison’s Memorial and Remonstrance Against
Religious Assessments. DaimlerChrysler, supra, at 348.
In 1785, the General Assembly of the Commonwealth of
Virginia considered a “tax levy to support teachers of the
Christian religion.” Flast, supra, at 104, n. 24; see A Bill
Establishing A Provision for Teachers of the Christian
Cite as: 563 U. S. ____ (2011) 13
Opinion of the Court
Religion, reprinted in Everson v. Board of Ed. of Ewing,
330 U. S. 1, 74 (1947) (supplemental appendix to dissent of
Rutledge, J.). Under the proposed assessment bill, tax­
payers would direct their payments to Christian societies
of their choosing. Ibid. If a taxpayer made no such choice,
the General Assembly was to divert his funds to “seminar­
ies of learning,” at least some of which “undoubtedly would
have been religious in character.” Rosenberger v. Rector
and Visitors of Univ. of Va., 515 U. S. 819, 869, n. 1 (1995)
(Souter, J., dissenting) (internal quotation marks omitted);
see also id., at 853, n. 1 (THOMAS, J., concurring). How­
ever the “seminaries” provision might have functioned in
practice, critics took the position that the proposed bill
threatened compulsory religious contributions. See, e.g.,
T. Buckley, Church and State in Revolutionary Virginia,
1776–1787, pp. 133–134 (1977); H. Eckenrode, Separation
of Church and State in Virginia 106–108 (1910).
In the Memorial and Remonstrance, Madison objected to
the proposed assessment on the ground that it would
coerce a form of religious devotion in violation of con­
science. In Madison’s view, government should not “ ‘force
a citizen to contribute three pence only of his property for
the support of any one establishment.’ ” Flast, supra, at
103 (quoting 2 Writings of James Madison 183, 186 (G.
Hunt ed. 1901)). This Madisonian prohibition does not
depend on the amount of property conscripted for sectar­
ian ends. Any such taking, even one amounting to “three
pence only,” violates conscience. 392 U. S., at 103; cf.
supra, at 6–7. The proposed bill ultimately died in com­
mittee; and the General Assembly instead enacted legisla­
tion forbidding “compelled” support of religion. See A Bill
for Establishing Religious Freedom, reprinted in 2 Papers
of Thomas Jefferson 545–546 (J. Boyd ed. 1950); see also
Flast, 392 U. S., at 104, n. 24. Madison himself went on to
become, as Flast put it, “the leading architect of the relig­
ion clauses of the First Amendment.” Id., at 103. Flast
14 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
WINN
Opinion of the Court
was thus informed by “the specific evils” identified in the
public arguments of “those who drafted the Establishment
Clause and fought for its adoption.” Id., at 103–104; see
also Feldman, Intellectual Origins of the Establishment
Clause, 77 N. Y. U. L. Rev. 346, 351 (2002) (“[T]he Fram­
ers’ generation worried that conscience would be violated
if citizens were required to pay taxes to support religious
institutions with whose beliefs they disagreed”); McCon­
nell, Coercion: The Lost Element of Establishment, 27
Wm. & Mary L. Rev. 933, 936–939 (1986).
Respondents contend that these principles demonstrate
their standing to challenge the STO tax credit. In their
view the tax credit is, for Flast purposes, best understood
as a governmental expenditure. That is incorrect.
It is easy to see that tax credits and governmental ex­
penditures can have similar economic consequences, at
least for beneficiaries whose tax liability is sufficiently
large to take full advantage of the credit. Yet tax credits
and governmental expenditures do not both implicate
individual taxpayers in sectarian activities. A dissenter
whose tax dollars are “extracted and spent” knows that he
has in some small measure been made to contribute to an
establishment in violation of conscience. Flast, supra, at
106. In that instance the taxpayer’s direct and particular
connection with the establishment does not depend on
economic speculation or political conjecture. The connec­
tion would exist even if the conscientious dissenter’s tax
liability were unaffected or reduced. See DaimlerChrysler,
supra, at 348–349. When the government declines to
impose a tax, by contrast, there is no such connection
between dissenting taxpayer and alleged establishment.
Any financial injury remains speculative. See supra, at 6–
10. And awarding some citizens a tax credit allows other
citizens to retain control over their own funds in accor­
dance with their own consciences.
The distinction between governmental expenditures and
Cite as: 563 U. S. ____ (2011) 15
Opinion of the Court
tax credits refutes respondents’ assertion of standing.
When Arizona taxpayers choose to contribute to STOs,
they spend their own money, not money the State has
collected from respondents or from other taxpayers. Ari­
zona’s §43–1089 does not “extrac[t] and spen[d]” a consci­
entious dissenter’s funds in service of an establishment,
Flast, 392 U. S., at 106, or “ ‘force a citizen to contribute
three pence only of his property’ ” to a sectarian organiza­
tion, id., at 103 (quoting 2 Writings of James Madison,
supra, at 186). On the contrary, respondents and other
Arizona taxpayers remain free to pay their own tax bills,
without contributing to an STO. Respondents are likewise
able to contribute to an STO of their choice, either reli­
gious or secular. And respondents also have the option of
contributing to other charitable organizations, in which
case respondents may become eligible for a tax deduction
or a different tax credit. See, e.g., Ariz. Rev. Stat. Ann.
§43–1088 (West Supp. 2010). The STO tax credit is not
tantamount to a religious tax or to a tithe and does not
visit the injury identified in Flast. It follows that respon­
dents have neither alleged an injury for standing purposes
under general rules nor met the Flast exception. Finding
standing under these circumstances would be more than
the extension of Flast “to the limits of its logic.” Hein, 551
U. S., at 615 (plurality opinion). It would be a departure
from Flast’s stated rationale.
Furthermore, respondents cannot satisfy the require­
ments of causation and redressability. When the govern­
ment collects and spends taxpayer money, governmental
choices are responsible for the transfer of wealth. In that
case a resulting subsidy of religious activity is, for pur­
poses of Flast, traceable to the government’s expenditures.
And an injunction against those expenditures would ad­
dress the objections of conscience raised by taxpayer­
plaintiffs. See DaimlerChrysler, 547 U. S., at 344. Here,
by contrast, contributions result from the decisions of
16 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
WINN
Opinion of the Court
private taxpayers regarding their own funds. Private
citizens create private STOs; STOs choose beneficiary
schools; and taxpayers then contribute to STOs. While the
State, at the outset, affords the opportunity to create and
contribute to an STO, the tax credit system is imple­
mented by private action and with no state intervention.
Objecting taxpayers know that their fellow citizens, not
the State, decide to contribute and in fact make the con­
tribution. These considerations prevent any injury the
objectors may suffer from being fairly traceable to the
government. And while an injunction against application
of the tax credit most likely would reduce contributions to
STOs, that remedy would not affect noncontributing tax­
payers or their tax payments. As a result, any injury
suffered by respondents would not be remedied by an
injunction limiting the tax credit’s operation.
Resisting this conclusion, respondents suggest that
Arizonans who benefit from §43–1089 tax credits in effect
are paying their state income tax to STOs. In respon­
dents’ view, tax credits give rise to standing even if tax
deductions do not, since only the former yield a dollar-for­
dollar reduction in final tax liability. See Brief for Re­
spondent Winn et al. 5–6; Tr. of Oral Arg. 35–36. But
what matters under Flast is whether sectarian STOs
receive government funds drawn from general tax reve­
nues, so that moneys have been extracted from a citizen
and handed to a religious institution in violation of the
citizen’s conscience. Under that inquiry, respondents’
argument fails. Like contributions that lead to charitable
tax deductions, contributions yielding STO tax credits are
not owed to the State and, in fact, pass directly from tax­
payers to private organizations. Respondents’ contrary
position assumes that income should be treated as if it
were government property even if it has not come into the
tax collector’s hands. That premise finds no basis in
standing jurisprudence. Private bank accounts cannot be
Cite as: 563 U. S. ____ (2011) 17
Opinion of the Court
equated with the Arizona State Treasury.
The conclusion that the Flast exception is inapplicable
at first may seem in tension with several earlier cases, all
addressing Establishment Clause issues and all decided
after Flast. See Mueller, 463 U. S. 388; Committee for
Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756(1973); Hunt v. McNair, 413 U. S. 734 (1973); Walz v. Tax
Comm’n of City of New York, 397 U. S. 664 (1970); cf.
Hibbs v. Winn, 542 U. S. 88 (reaching only threshold
jurisdictional issues). But those cases do not mention
standing and so are not contrary to the conclusion reached
here. When a potential jurisdictional defect is neither
noted nor discussed in a federal decision, the decision does
not stand for the proposition that no defect existed. See,
e.g., Hagans v. Lavine, 415 U. S. 528, 535, n. 5 (1974)
(“[W]hen questions of jurisdiction have been passed on in
prior decisions sub silentio, this Court has never consid-
ered itself bound when a subsequent case finally brings
the jurisdictional issue before us”); United States v. L. A.
Tucker Truck Lines, Inc., 344 U. S. 33, 38 (1952) (“Even as
to our own judicial power of jurisdiction, this Court has
followed the lead of Mr. Chief Justice Marshall who held
that this Court is not bound by a prior exercise of jurisdic-
tion in a case where it was not questioned and it was
passed sub silentio”); Frothingham, supra, at 486. The
Court would risk error if it relied on assumptions that
have gone unstated and unexamined.
Furthermore, if a law or practice, including a tax credit,
disadvantages a particular religious group or a particular
nonreligious group, the disadvantaged party would not
have to rely on Flast to obtain redress for a resulting
injury. See Texas Monthly, Inc. v. Bullock, 489 U. S., at 8(plurality opinion) (finding standing where a general
interest magazine sought to recover tax payments on the
ground that religious periodicals were exempt from the
tax). Because standing in Establishment Clause cases can
be shown in various ways, it is far from clear that any
18 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
WINN
Opinion of the Court
nonbinding sub silentio holdings in the cases respondents
cite would have depended on Flast. See, e.g., Walz, supra,at 666–667 (explaining that the plaintiff was an “owner of
real estate” in New York City who objected to the city’s
issuance of “property tax exemptions to religious organiza­
tions”). That the plaintiffs in those cases could have
advanced arguments for jurisdiction independent of Flast
makes it particularly inappropriate to determine whether
or why standing should have been found where the issue
was left unexplored.
If an establishment of religion is alleged to cause real
injury to particular individuals, the federal courts may
adjudicate the matter. Like other constitutional provi­
sions, the Establishment Clause acquires substance and
meaning when explained, elaborated, and enforced in the
context of actual disputes. That reality underlies the case­
or-controversy requirement, a requirement that has not
been satisfied here.
* * *
Few exercises of the judicial power are more likely to
undermine public confidence in the neutrality and integ­
rity of the Judiciary than one which casts the Court in the
role of a Council of Revision, conferring on itself the power
to invalidate laws at the behest of anyone who disagrees
with them. In an era of frequent litigation, class actions,
sweeping injunctions with prospective effect, and continu­
ing jurisdiction to enforce judicial remedies, courts must
be more careful to insist on the formal rules of standing,
not less so. Making the Article III standing inquiry all the
more necessary are the significant implications of consti­
tutional litigation, which can result in rules of wide appli­
cability that are beyond Congress’ power to change.
The present suit serves as an illustration of these prin­
ciples. The fact that respondents are state taxpayers does
not give them standing to challenge the subsidies that
Cite as: 563 U. S. ____ (2011) 19
Opinion of the Court
§43–1089 allegedly provides to religious STOs. To alter
the rules of standing or weaken their requisite elements
would be inconsistent with the case-or-controversy limita­
tion on federal jurisdiction imposed by Article III.
The judgment of the Court of Appeals is reversed.
It is so ordered.
Cite as: 563 U. S. ____ (2011) 1
SCALIA, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 09–987 and 09–991
_________________
ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZA-
TION, PETITIONER
09–987 v.
KATHLEEN M. WINN ET AL.
GALE GARRIOTT, DIRECTOR, ARIZONA DEPART-
MENT OF REVENUE, PETITIONER
09–991 v.
KATHLEEN M. WINN ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 4, 2011]
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
concurring.
Taxpayers ordinarily do not have standing to challenge
federal or state expenditures that allegedly violate the
Constitution. See DaimlerChrysler Corp. v. Cuno, 547
U. S. 332, 343–345 (2006). In Flast v. Cohen, 392 U. S. 83(1968), we created a narrow exception for taxpayers rais
ing Establishment Clause challenges to government ex
penditures. Today’s majority and dissent struggle with
whether respondents’ challenge to the Arizona tuition tax
credit falls within that narrow exception. Under a princi
pled reading of Article III, their struggles are unnecessary.
Flast is an anomaly in our jurisprudence, irreconcilable
with the Article III restrictions on federal judicial power
that our opinions have established. I would repudiate that
misguided decision and enforce the Constitution. See
Hein v. Freedom From Religion Foundation, Inc., 551 U. S.
2 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
WINN
SCALIA, J., concurring
587, 618 (2007) (SCALIA, J., concurring in judgment).
I nevertheless join the Court’s opinion because it finds
respondents lack standing by applying Flast rather than
distinguishing it away on unprincipled grounds. Cf. Hein,
supra, at 628–631.
Cite as: 563 U. S. ____ (2011) 1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 09–987 and 09–991
_________________
ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZA-
TION, PETITIONER
09–987 v.
KATHLEEN M. WINN ET AL.
GALE GARRIOTT, DIRECTOR, ARIZONA DEPART-
MENT OF REVENUE, PETITIONER
09–991 v.
KATHLEEN M. WINN ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 4, 2011]
JUSTICE KAGAN, with whom JUSTICE GINSBURG,
JUSTICE BREYER, and JUSTICE SOTOMAYOR join, dissent
ing.
Since its inception, the Arizona private-school-tuition
tax credit has cost the State, by its own estimate, nearly
$350 million in diverted tax revenue. The Arizona tax
payers who instituted this suit (collectively, Plaintiffs)
allege that the use of these funds to subsidize school tui
tion organizations (STOs) breaches the Establishment
Clause’s promise of religious neutrality. Many of these
STOs, the Plaintiffs claim, discriminate on the basis of a
child’s religion when awarding scholarships.
For almost half a century, litigants like the Plaintiffs
have obtained judicial review of claims that the govern
ment has used its taxing and spending power in violation
of the Establishment Clause. Beginning in Flast v. Cohen,
392 U. S. 83 (1968), and continuing in case after case for
2 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
WINN
KAGAN, J., dissenting
over four decades, this Court and others have exercised
jurisdiction to decide taxpayer-initiated challenges not
materially different from this one. Not every suit has
succeeded on the merits, or should have. But every tax
payer-plaintiff has had her day in court to contest the
government’s financing of religious activity.
Today, the Court breaks from this precedent by refusing
to hear taxpayers’ claims that the government has uncon
stitutionally subsidized religion through its tax system.
These litigants lack standing, the majority holds, because
the funding of religion they challenge comes from a tax
credit, rather than an appropriation. A tax credit, the
Court asserts, does not injure objecting taxpayers, because
it “does not extract and spend [their] funds in service of an
establishment.” Ante, at 15 (internal quotation marks and
alterations omitted).
This novel distinction in standing law between appro
priations and tax expenditures has as little basis in prin
ciple as it has in our precedent. Cash grants and targeted
tax breaks are means of accomplishing the same govern
ment objective—to provide financial support to select
individuals or organizations. Taxpayers who oppose state
aid of religion have equal reason to protest whether that
aid flows from the one form of subsidy or the other. Either
way, the government has financed the religious activity.
And so either way, taxpayers should be able to challenge
the subsidy.
Still worse, the Court’s arbitrary distinction threatens to
eliminate all occasions for a taxpayer to contest the gov
ernment’s monetary support of religion. Precisely because
appropriations and tax breaks can achieve identical objec
tives, the government can easily substitute one for the
other. Today’s opinion thus enables the government to
end-run Flast’s guarantee of access to the Judiciary. From
now on, the government need follow just one simple rule—
subsidize through the tax system—to preclude taxpayer
Cite as: 563 U. S. ____ (2011) 3
KAGAN, J., dissenting
challenges to state funding of religion.
And that result—the effective demise of taxpayer stand
ing—will diminish the Establishment Clause’s force and
meaning. Sometimes, no one other than taxpayers has
suffered the injury necessary to challenge government
sponsorship of religion. Today’s holding therefore will
prevent federal courts from determining whether some
subsidies to sectarian organizations comport with our
Constitution’s guarantee of religious neutrality. Because I
believe these challenges warrant consideration on the
merits, I respectfully dissent from the Court’s decision.
I
As the majority recounts, this Court has held that pay
ing taxes usually does not give an individual Article III
standing to challenge government action. Ante, at 6–10.
Taxpayers cannot demonstrate the requisite injury be
cause each person’s “interest in the moneys of the Treas
ury . . . is comparatively minute and indeterminable.”
Frothingham v. Mellon, 262 U. S. 447, 487 (1923) (decided
with Massachusetts v. Mellon). Given the size and com
plexity of government budgets, it is a “fiction” to contend
that an unlawful expenditure causes an individual “any
measurable economic harm.” Hein v. Freedom From
Religion Foundation, Inc., 551 U. S. 587, 593 (2007) (plu
rality opinion). Nor can taxpayers in the ordinary case
establish causation (i.e., that the disputed government
measure affects their tax burden) or redressability (i.e.,
that a judicial remedy would result in tax reductions).
Ante, at 8–9. On these points, all agree.
The disagreement concerns their relevance here. This
case is not about the general prohibition on taxpayer
standing, and cannot be resolved on that basis. This case
is instead about the exception to the rule—the principle
established decades ago in Flast that taxpayers may chal
lenge certain government actions alleged to violate the
4 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
WINN
KAGAN, J., dissenting
Establishment Clause. The Plaintiffs have standing if
their suit meets Flast’s requirements—and it does so
under any fair reading of that decision.
Taxpayers have standing, Flast held, when they allege
that a statute enacted pursuant to the legislature’s taxing
and spending power violates the Establishment Clause.
392 U. S., at 105–106. In this situation, the Court ex
plained, a plaintiff can establish a two-part nexus “be
tween the [taxpayer] status asserted and the claim sought
to be adjudicated.” Id., at 102. First, by challenging
legislative action taken under the taxing and spending
clause, the taxpayer shows “a logical link between [her]
status and the type of . . . enactment attacked.” Ibid.Second, by invoking the Establishment Clause—a specific
limitation on the legislature’s taxing and spending
power—the taxpayer demonstrates “a nexus between [her]
status and the precise nature of the constitutional in
fringement alleged.” Ibid. Because of these connections,
Flast held, taxpayers alleging that the government is
using tax proceeds to aid religion have “the necessary
stake . . . in the outcome of the litigation to satisfy Article
III.” Ibid. They are “proper and appropriate part[ies]”—
indeed, often the only possible parties—to seek judicial
enforcement of the Constitution’s guarantee of religious
neutrality. Ibid.That simple restatement of the Flast standard should be
enough to establish that the Plaintiffs have standing.
They attack a provision of the Arizona tax code that the
legislature enacted pursuant to the State Constitution’s
taxing and spending clause (Flast nexus, part 1). And
they allege that this provision violates the Establishment
Clause (Flast nexus, part 2). By satisfying both of Flast’s
conditions, the Plaintiffs have demonstrated their “stake
as taxpayers” in enforcing constitutional restraints on the
provision of aid to STOs. Ibid. Indeed, the connection in
this case between “the [taxpayer] status asserted and the
Cite as: 563 U. S. ____ (2011) 5
KAGAN, J., dissenting
claim sought to be adjudicated,” ibid., could not be any
tighter: As noted when this Court previously addressed a
different issue in this lawsuit, the Plaintiffs invoke the
Establishment Clause to challenge “an integral part of the
State’s tax statute” that “is reflected on state tax forms”
and that “is part of the calculus necessary to determine
tax liability.” Hibbs v. Winn, 542 U. S. 88, 119 (2004)
(Winn I) (KENNEDY, J., dissenting) (emphasis added).
Finding standing here is merely a matter of applying
Flast. I would therefore affirm the Court of Appeals’
determination (not questioned even by the eight judges
who called for rehearing en banc on the merits) that the
Plaintiffs can pursue their claim in federal court.
II
The majority reaches a contrary decision by distinguish
ing between two methods of financing religion: A taxpayer
has standing to challenge state subsidies to religion, the
Court announces, when the mechanism used is an appro
priation, but not when the mechanism is a targeted tax
break, otherwise called a “tax expenditure.”1 In the for
mer case, but not in the latter, the Court declares, the
taxpayer suffers cognizable injury. Ante, at 14–15.
——————
1 “Tax expenditures” are monetary subsidies the government bestows
on particular individuals or organizations by granting them preferen
tial tax treatment. The co-chairmen of the National Commission on
Fiscal Responsibility and Reform recently referred to these tax breaks
as “the various deductions, credits and loopholes that are just spending
by another name.” Washington Post, Feb. 20, 2011, p. A19, col. 3; see
also 2 U. S. C. §622(3) (defining “tax expenditures,” for purposes of the
Federal Government’s budgetary process, as “those revenue losses
attributable to provisions of the . . . tax laws which allow a special
exclusion, exemption, or deduction from gross income or which provide
a special credit, a preferential rate of tax, or a deferral of tax liability”);
S. Surrey & P. McDaniel, Tax Expenditures 3 (1985) (explaining that
tax expenditures “represent government spending for favored activities
or groups, effected through the tax system rather than through direct
grants, loans, or other forms of government assistance”).
6 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
WINN
KAGAN, J., dissenting
But this distinction finds no support in case law, and
just as little in reason. In the decades since Flast, no
court—not one—has differentiated between appropriations
and tax expenditures in deciding whether litigants have
standing. Over and over again, courts (including this one)
have faced Establishment Clause challenges to tax credits,
deductions, and exemptions; over and over again, these
courts have reached the merits of these claims. And that
is for a simple reason: Taxpayers experience the same
injury for standing purposes whether government subsidi
zation of religion takes the form of a cash grant or a tax
measure. The only rationale the majority offers for its
newfound distinction—that grants, but not tax expendi
tures, somehow come from a complaining taxpayer’s own
wallet—cannot bear the weight the Court places on it. If
Flast is still good law—and the majority today says noth
ing to the contrary—then the Plaintiffs should be able to
pursue their claim on the merits.
A
Until today, this Court has never so much as hinted that
litigants in the same shoes as the Plaintiffs lack standing
under Flast. To the contrary: We have faced the identical
situation five times—including in a prior incarnation of
this very case!—and we have five times resolved the suit
without questioning the plaintiffs’ standing. Lower fed
eral courts have followed our example and handled the
matter in the same way. I count 14 separate cases (involv
ing 20 appellate and district courts) that adjudicated
taxpayer challenges to tax expenditures alleged to violate
the Establishment Clause.2 I suspect I have missed a few.
——————
2 See Johnson v. Economic Development Corporation of Cty. of Oak
land, 241 F. 3d 501 (CA6 2001), aff’g 64 F. Supp. 2d 657 (ED Mich.
1999); Steele v. Industrial Development Bd. of Metropolitan Govt.
Nashville, 301 F. 3d 401 (CA6 2002), rev’g 117 F. Supp. 2d 693 (MD
Tenn. 2000); Christie v. United States, 31 Fed. Appx. 571 (CA9 2002),
Cite as: 563 U. S. ____ (2011) 7
KAGAN, J., dissenting
I have not found any instance of a court dismissing such a
claim for lack of standing.
Consider the five cases in which this Court entertained
suits filed by taxpayers alleging that tax expenditures
unlawfully subsidized religion. We first took up such a
challenge in Walz v. Tax Comm’n of City of New York, 397
U. S. 664, 666–667 (1970), where we upheld the constitu
tionality of a property tax exemption for religious organi
zations. Next, in Hunt v. McNair, 413 U. S. 734, 735–736,
738–739 (1973), we decided that the Establishment Clause
permitted a state agency to issue tax-exempt bonds to
sectarian institutions. The same day, in Committee for
Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756,
789–794 (1973), we struck down a state tax deduction for
parents who paid tuition at religious and other private
schools. A decade later, in Mueller v. Allen, 463 U. S. 388,
390–391 (1983), we considered, but this time rejected, a
similar Establishment Clause challenge to a state tax
deduction for expenses incurred in attending such schools.
And most recently, we decided a preliminary issue in this
——————
aff’g No. 00–cv–02392–J (SD Cal., Apr. 23, 2001); Mueller v. Allen, 676
F. 2d 1195 (CA8 1982), aff’g 514 F. Supp. 998 (Minn. 1981); Rhode
Island Federation of Teachers, AFL–CIO v. Norberg, 630 F. 2d 855(CA1 1980), aff’g 479 F. Supp. 1364 (RI 1979); Public Funds for Public
Schools of N. J. v. Byrne, 590 F. 2d 514 (CA3 1979), aff’g 444 F. Supp.
1228 (NJ 1978); Freedom from Religion Foundation, Inc. v. Geithner,
715 F. Supp. 2d 1051 (ED Cal. 2010); Gillam v. Harding Univ., No.
4:08–CV–00363BSM, 2009 WL 1795303,*1 (ED Ark., June 24, 2009);
Leverett v. United States Bur. of HHS, No. Civ. A. 99–S–1670, 2003 WL
21770810,*1 (D Colo., June 9, 2003); Luthens v. Bair, 788 F. Supp. 1032(SD Iowa 1992); Minnesota Civ. Liberties Union v. Roemer, 452 F. Supp.
1316 (Minn. 1978); Kosydar v. Wolman, 353 F. Supp. 744 (SD Ohio
1972) (per curiam) (three-judge court); Committee for Public Ed. &
Religious Liberty v. Nyquist, 350 F. Supp. 655 (SDNY 1972) (three
judge court); United Ams. for Public Schools v. Franchise Tax Bd. of
Cal., No. C–73–0090 (ND Cal., Feb. 1, 1974) (three-judge court), re
printed in App. to Juris. Statement in Franchise Tax Bd. of Cal. v.
United Ams. for Public Schools, O. T. 1973, No. 73–1718, pp. 1–4.
8 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
WINN
KAGAN, J., dissenting
very case, ruling that the Tax Injunction Act, 28 U. S. C.
§1341, posed no barrier to the Plaintiffs’ litigation of their
Establishment Clause claim. See Winn I, 542 U. S., at
112.3 The Court in all five of these cases divided sharply
on the merits of the disputes. But in one respect, the
Justices were unanimous: Not a single one thought to
question the litigants’ standing.
The Solicitor General, participating here as amicus
curiae, conceded at oral argument that under the Federal
Government’s—and now the Court’s—view of taxpayer
standing, each of these five cases should have been dis
missed for lack of jurisdiction.
“[The Court:] So if you are right, . . . the Court was
without authority to decide Walz, Nyquist, Hunt,
Mueller, [and] Hibbs [v. Winn,] this very case, just a
few years ago? . . . .
[Solicitor General:] Right. . . . [M]y answer to you is
yes.
[The Court:] I just want to make sure I heard your
answer to the—you said the answer is yes. In other
words, you agree . . . those cases were wrongly de
cided. . . . [Y]ou would have said there would have
been no standing in those cases.
——————
3 Wehave also several times summarily affirmed lower court deci
sions adjudicating taxpayer challenges to tax expenditures alleged to
violate the Establishment Clause. See Byrne v. Public Funds for Public
Schools of N. J., 442 U. S. 907 (1979), summarily aff’g 590 F. 2d 514,
516, n. 3 (CA3) (holding that “plaintiffs, as taxpayers, have standing
under Flast” to challenge a tax deduction for dependents attending
religious and other private schools); Grit v. Wolman, 413 U. S. 901(1973), summarily aff’g Kosydar v. Wolman, 353 F. Supp. 744, 749 (SD
Ohio 1972) (three-judge court) (noting that no party had questioned the
standing of taxpayers to contest tax credits for private-school tuition
payments); Franchise Tax Bd. of Cal. v. United Ams. for Public Schools,
419 U. S. 890 (1974), summarily aff’g No. C–73–0090 (ND Cal., Feb. 1,
1974) (three-judge court) (invalidating a tax credit for children attend
ing private schools).
Cite as: 563 U. S. ____ (2011) 9
KAGAN, J., dissenting
[Solicitor General:] No taxpayer standing.” Tr. of
Oral Arg. 10–12.
Nor could the Solicitor General have answered differently.
Each of these suits, as described above, alleged that a
state tax expenditure violated the Establishment Clause.
And each relied only on taxpayer standing as the basis for
federal-court review.4 The Court today speculates that
“the plaintiffs in those cases could have advanced argu
ments for jurisdiction independent of Flast.” Ante, at 18.
But whatever could have been, in fact not one of them did
so.
And the Court itself understood the basis of standing in
these five cases. This and every federal court has an
independent obligation to consider standing, even when
the parties do not call it into question. See, e.g., FW/PBS,
Inc. v. Dallas, 493 U. S. 215, 230–231 (1990). To do any
thing else would risk an unlawful exercise of judicial
authority. And in these cases the Court had an additional
prompt: In several of them, amici, including the United
States, contested—or at least raised as a question—the
plaintiffs’ standing as taxpayers to pursue their claims.5
The Court, moreover, was well aware at the time of the
issues presented by taxpayer standing. We decided three
of the cases within a year of elaborating the general bar on
——————
4 See App. in Hibbs v. Winn, O. T. 2003, No. 02–1809, pp. 7–8 (com
plaint); Pet. for Cert. in Mueller v. Allen, O. T. 1982, No. 82–195, p. 7;
App. in Committee for Public Ed. & Religious Liberty v. Nyquist, O. T.
1972, No. 72–694, p. 9a (complaint); App. in Hunt v. McNair, O. T.
1972, No. 71–1523, p. 5 (complaint); App. in Walz v. Tax Comm’n of
City of New York, O. T. 1969, No. 135, pp. 5–7 (complaint).
5 See, e.g., Brief for United States as Amicus Curiae in Mueller v.
Allen, supra, at 12, n. 15; Brief for United States as Amicus Curiae in
Hibbs v. Winn, supra, at 3, n. 1; Brief for Honorable Trent Franks et al.
as Amici Curiae in Hibbs v. Winn, supra, at 6, n. 2; Brief for United
States Catholic Conference as Amicus Curiae in Walz v. Tax Comm’n of
City of New York, supra, at 23–24.
10 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
WINN
KAGAN, J., dissenting
taxpayer suits, see, e.g., United States v. Richardson, 418
U. S. 166 (1974); Schlesinger v. Reservists Comm. to Stop
the War, 418 U. S. 208 (1974), and the fourth just after we
held that bar applicable to a different kind of Establish
ment Clause claim, see Valley Forge Christian College v.
Americans United for Separation of Church and State,
Inc., 454 U. S. 464 (1982). Indeed, the decisions on their
face reflect the Court’s recognition of what gave the plain
tiffs standing; in each, we specifically described the plain
tiffs as taxpayers who challenged the use of the tax system
to fund religious activities. See Winn I, 542 U. S., at 94;
Mueller, 463 U. S., at 392; Nyquist, 413 U. S., at 759, 762;
Hunt, 413 U. S., at 735–736; Walz, 397 U. S., at 666–667.
In short, we considered and decided all these cases be
cause we thought taxpayer standing existed.
The majority shrugs off these decisions because they did
not discuss what was taken as obvious. Ante, at 17. But
we have previously stressed that the Court should not
“disregard the implications of an exercise of judicial au
thority assumed to be proper for over 40 years.” Brown
Shoe Co. v. United States, 370 U. S. 294, 307 (1962); see
Bowen v. Kendrick, 487 U. S. 589, 619 (1988) (finding
standing partly because the Court, in deciding similar
cases, had “not questioned the standing of taxpayer plain
tiffs to raise Establishment Clause challenges”); Bank of
United States v. Deveaux, 5 Cranch 61, 88 (1809) (Mar
shall, C. J.) (prior decisions exercising but not discussing
jurisdiction “have much weight, as they show that [a
jurisdictional flaw] neither occurred to the bar or the
bench”). And that principle has extra force here, because
we have relied on some of these decisions to support the
Court’s jurisdiction in other cases. Pause on that for a
moment: The very decisions the majority today so easily
dismisses are featured in our prior cases as exemplars of
jurisdiction. So in School Dist. of Grand Rapids v. Ball,
473 U. S. 373 (1985), we relied on Nyquist and Hunt to
Cite as: 563 U. S. ____ (2011) 11
KAGAN, J., dissenting
conclude that taxpayers had standing to challenge a pro
gram of aid to religious and other private schools. 473
U. S., at 380, n. 5, overruled in part on other grounds by
Agostini v. Felton, 521 U. S. 203 (1997). And in Winn I
(recall, an earlier iteration of this case), we rejected a
different jurisdictional objection in part by relying on
Mueller and Nyquist. We called those cases “adjudications
of great moment discerning no [jurisdictional] barrier” and
warned that they could not “be written off as reflecting
nothing more than unexamined custom or unthinking
habit.” 542 U. S., at 112, n. 13 (internal quotation marks
and citations omitted). Until today, that is—when the
majority does write off these adjudications and reaches a
result against all precedent.
B
Our taxpayer standing cases have declined to distin
guish between appropriations and tax expenditures for a
simple reason: Here, as in many contexts, the distinction
is one in search of a difference. To begin to see why, con
sider an example far afield from Flast and, indeed, from
religion. Imagine that the Federal Government decides it
should pay hundreds of billions of dollars to insolvent
banks in the midst of a financial crisis. Suppose, too, that
many millions of taxpayers oppose this bailout on the
ground (whether right or wrong is immaterial) that it uses
their hard-earned money to reward irresponsible business
behavior. In the face of this hostility, some Members of
Congress make the following proposal: Rather than give
the money to banks via appropriations, the Government
will allow banks to subtract the exact same amount from
the tax bill they would otherwise have to pay to the U. S.
Treasury. Would this proposal calm the furor? Or would
most taxpayers respond by saying that a subsidy is a
subsidy (or a bailout is a bailout), whether accomplished
by the one means or by the other? Surely the latter; in
12 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
WINN
KAGAN, J., dissenting
deed, we would think the less of our countrymen if they
failed to see through this cynical proposal.
And what ordinary people would appreciate, this Court’s
case law also recognizes—that targeted tax breaks are
often “economically and functionally indistinguishable
from a direct monetary subsidy.” Rosenberger v. Rector
and Visitors of Univ. of Va., 515 U. S. 819, 859 (1995)
(THOMAS, J., concurring). Tax credits, deductions, and
exemptions provided to an individual or organization have
“much the same effect as a cash grant to the [recipient] of
the amount of tax it would have to pay” absent the tax
break. Regan v. Taxation With Representation of Wash.,
461 U. S. 540, 544 (1983). “Our opinions,” therefore, “have
long recognized . . . the reality that [tax expenditures] are
a form of subsidy that is administered through the tax
system.” Arkansas Writers’ Project, Inc. v. Ragland, 481
U. S. 221, 236 (1987) (SCALIA, J., dissenting) (internal
quotation marks omitted). Or again: Tax breaks “can be
viewed as a form of government spending,” Camps New
found/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564,
589–590, n. 22 (1997), even assuming the diverted tax
funds do not pass through the public treasury. And once
more: Both special tax benefits and cash grants “repre
sen[t] a charge made upon the state,” Nyquist, 413 U. S.,
at 790–791 (internal quotation marks omitted); both de
plete funds in the government’s coffers by transferring
money to select recipients.6
——————
6 The majority observes that special tax benefits may in fact “in
creas[e] government revenues” by “spur[ring] economic activity.” Ante,
at 8 (internal quotation marks omitted). That may be so in the long
run (although the only non-speculative effect is to immediately dimin
ish funds in the public treasury). But as the majority acknowledges,
ibid., this possibility holds just as true for appropriations; that is why
we (optimistically) refer to some government outlays as “investments.”
The insight therefore cannot help the majority distinguish between tax
expenditures and appropriations.
Cite as: 563 U. S. ____ (2011) 13
KAGAN, J., dissenting
For just this reason, government budgeting rules rou
tinely insist on calculation of tax subsidies, in addition to
appropriations. The President must provide information
on the estimated cost of tax expenditures in the budget
he submits to Congress each year. See 31 U. S. C.
§1105(a)(16); n. 1, supra. Similarly, congressional budget
committees must report to all Members on the level of
tax expenditures in the federal budget. See 2 U. S. C.
§632(e)(2)(E). Many States—including Arizona—likewise
compute the impact of targeted tax breaks on the public
treasury, in recognition that these measures are just
spending under a different name, see n. 1, supra. The
Arizona Department of Revenue must issue an annual
report “detailing the approximate costs in lost revenue for
all state tax expenditures.” Ariz. Rev. Stat. Ann. §42–
1005(A)(4) (West 2006). The most recent report notes the
significance of this accounting in the budget process. It
explains that “the fiscal impact of implementing” targeted
tax breaks, including the STO credit challenged here, is
“similar to a direct expenditure of state funds.” Arizona
Dept. of Revenue, Revenue Impact of Arizona’s Tax Ex
penditures FY 2009/10, p. 1 (preliminary Nov. 15, 2010);
see also Surrey, Tax Incentives as a Device for Implement
ing Government Policy: A Comparison with Direct Gov
ernment Expenditures, 83 Harv. L. Rev. 705, 717 (1970)
(“A dollar is a dollar—both for the person who receives it
and the government that pays it, whether the dollar comes
with a tax credit label or a direct expenditure label”).
And because these financing mechanisms result in the
same bottom line, taxpayers challenging them can allege
the same harm. Our prior cases have often recognized the
cost that targeted tax breaks impose on taxpayers gener
ally. “When the Government grants exemptions or allows
deductions” to some, we have observed, “all taxpayers are
affected; the very fact of the exemption or deduction . . .
means that other taxpayers can be said to be indirect and
14 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
WINN
KAGAN, J., dissenting
vicarious ‘donors.’ ” Bob Jones Univ. v. United States, 461
U. S. 574, 591 (1983). And again: “Every tax exemption
constitutes a subsidy that affects nonqualifying taxpayers,
forcing them to” bear its cost. Texas Monthly, Inc. v.
Bullock, 489 U. S. 1, 14 (1989) (plurality opinion). Indeed,
we have specifically compared the harm arising from a tax
subsidy with that arising from a cash grant, and declared
those injuries equivalent because both kinds of support
deplete the public fisc. “In either case,” we stated, “the
alleged injury is based on the asserted effect of the alleg
edly illegal activity on public revenues, to which the tax
payer contributes.” DaimlerChrysler Corp. v. Cuno, 547
U. S. 332, 344 (2006). This taxpayer injury of course fails
to establish standing in the mine-run case, whatever form
the state aid takes. See, e.g., id., at 343–344; ante, at 6–
10; supra, at 3. But the key is this: Whenever taxpayers
have standing under Flast to challenge an appropriation,
they should also have standing to contest a tax expendi
ture. Their access to the federal courts should not depend
on which type of financial subsidy the State has offered.
Consider some further examples of the point, but this
time concerning state funding of religion. Suppose a State
desires to reward Jews—by, say, $500 per year—for their
religious devotion. Should the nature of taxpayers’ con
cern vary if the State allows Jews to claim the aid on their
tax returns, in lieu of receiving an annual stipend? Or
assume a State wishes to subsidize the ownership of cruci
fixes. It could purchase the religious symbols in bulk and
distribute them to all takers. Or it could mail a reim
bursement check to any individual who buys her own and
submits a receipt for the purchase. Or it could authorize
that person to claim a tax credit equal to the price she
paid. Now, really—do taxpayers have less reason to com
plain if the State selects the last of these three options?
The Court today says they do, but that is wrong. The
effect of each form of subsidy is the same, on the public
Cite as: 563 U. S. ____ (2011) 15
KAGAN, J., dissenting
fisc and on those who contribute to it. Regardless of which
mechanism the State uses, taxpayers have an identical
stake in ensuring that the State’s exercise of its taxing
and spending power complies with the Constitution.7
Here, the mechanism Arizona has selected is a dollar
for-dollar tax credit to aid school tuition organizations.
Each year come April 15, the State tells Arizonans: Either
pay the full amount of your tax liability to the State, or
subtract up to $500 from your tax bill by contributing that
sum to an STO. See Winn I, 542 U. S., at 95. To claim the
credit, an individual makes a notation on her tax return
and splits her tax payment into two checks, one made out
to the State and the other to the STO. As this Court
recognized in Winn I, the STO payment is therefore “cost
less” to the individual, ibid.; it comes out of what she
otherwise would be legally obligated to pay the State—
hence, out of public resources. And STOs capitalize on
this aspect of the tax credit for all it is worth—which is
quite a lot. To drum up support, STOs highlight that
“donations” are made not with an individual’s own, but
with other people’s—i.e., taxpayers’—money. One STO
advertises that “[w]ith Arizona’s scholarship tax credit,
you can send children to our community’s [religious] day
schools and it won’t cost you a dime!” Brief for Respon
dents 13 (internal quotation marks and emphasis omit
ted). Another urges potential donors to “imagine giving [to
charity] with someone else’s money. . . . Stop Imagining,
——————
7 The majority indicates that some persons could challenge these
hypothetical government actions based on individualized injury, sepa
rate and apart from taxpayer status. See ante, at 1–2, 17–18. That is
quite right; indeed, some parents or children likely have standing to
challenge the Arizona tax credit on such grounds. But this possibility
does not detract from the point made here. The purpose of these
illustrations is to show that if taxpayer status is the thing alleged to
confer standing, it should do so irrespective of the form of the govern
ment subsidy.
16 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
WINN
KAGAN, J., dissenting
thanks to Arizona tax laws you can!” Id., at 14 (internal
quotation marks and emphasis omitted). And so Arizo
nans do just that: It is, after all, good fun to spend other
people’s money. By the State’s reckoning, from 1998 to
2008 the credit cost Arizona almost $350 million in redi
rected tax revenue.8
The Plaintiffs contend that this expenditure violates the
Establishment Clause. If the legislature had appropriated
these monies for STOs, the Plaintiffs would have standing,
beyond any dispute, to argue the merits of their claim in
federal court. But the Plaintiffs have no such recourse,
the Court today holds, because Arizona funds STOs
through a tax credit rather than a cash grant. No less
than in the hypothetical examples offered above, here too
form prevails over substance, and differences that make
no difference determine access to the Judiciary. And the
casualty is a historic and vital method of enforcing the
Constitution’s guarantee of religious neutrality.
C
The majority offers just one reason to distinguish ap
propriations and tax expenditures: A taxpayer experiences
injury, the Court asserts, only when the government
“extracts and spends” her very own tax dollars to aid
religion. Ante, at 15 (internal quotation marks and altera
tions omitted). In other words, a taxpayer suffers legally
——————
8 See Arizona Dept. of Revenue, Revenue Impact of Arizona’s Tax
Expenditures FY 2009/10, p. 48 (preliminary Nov. 15, 2010); FY
2008/09, p. 54 (preliminary Nov. 16, 2009); FY 2007/08, p. 58 (prelimi
nary Nov. 17, 2008); FY 2006/07, p. 65 (preliminary Nov. 15, 2007/final
Sept. 2010); FY 2005/06, p. 73 (preliminary Nov. 15, 2006/final Dec.
2009); FY 2004/05, p. 72 (preliminary Nov. 15, 2005/final June 2009);
FY 2003/04, p. 74 (preliminary Nov. 14, 2004/final Feb. 2007); FY
2002/03, p. 74 (preliminary Nov. 15, 2003/final Mar. 2007); FY 2001/02,
p. 71 (preliminary Nov. 15, 2002/final Mar. 2004); FY 2000/01, p. 73
(preliminary Nov. 15, 2001/final July 2003); FY 1999/00, p. 72 (prelimi
nary Nov. 15, 2000/final Aug. 2002).
Cite as: 563 U. S. ____ (2011) 17
KAGAN, J., dissenting
cognizable harm if but only if her particular tax dollars
wind up in a religious organization’s coffers. See also Tr.
of Oral Arg. 4 (Solicitor General proposing that the “key
point” was: “If you placed an electronic tag to track and
monitor each cent that the [Plaintiffs] pay in tax,” none
goes to religious STOs). And no taxpayer can make this
showing, the Court concludes, if the government subsi
dizes religion through tax credits, deductions, or exemp
tions (rather than through appropriations).9
The majority purports to rely on Flast to support this
new “extraction” requirement. It plucks the three words
“extrac[t] and spen[d]” from the midst of the Flast opinion,
and suggests that they severely constrict the decision’s
scope. Ante, at 15 (quoting 392 U. S., at 106). And it notes
that Flast partly relied on James Madison’s famed argu
ment in the Memorial and Remonstrance Against Reli
gious Assessments: “ ‘[T]he same authority which can force
a citizen to contribute three pence only of his property for
——————
9 Even taken on its own terms, the majority’s reasoning does not jus
tify the conclusion that the Plaintiffs lack standing. Arizona’s tuition
tax-credit program in fact necessitates the direct expenditure of funds
from the state treasury. After all, the statute establishing the initiative
requires the Arizona Department of Revenue to certify STOs, maintain
an STO registry, make the registry available to the public on request
and post it on a website, collect annual reports filed by STOs, and send
written notice to STOs that have failed to comply with statutory re
quirements. Ariz. Rev. Stat. Ann. §§43–1502(A)–(C), 43–1506 (West
Supp. 2010). Presumably all these activities cost money, which comes
from the state treasury. Thus, on the majority’s own theory, the
government has “extract[ed] and spen[t]” the Plaintiffs’ (along with
other taxpayers’) dollars to implement the challenged program, and the
Plaintiffs should have standing. (The majority, after all, makes clear
that nothing in its analysis hinges on the size or proportion of the
Plaintiffs’ contribution. Ante, at 13.) But applying the majority’s
theory in this way reveals the hollowness at its core. Can anyone
believe that the Plaintiffs have suffered injury through the costs
involved in administering the program, but not through the far greater
costs of granting the tax expenditure in the first place?
18 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
WINN
KAGAN, J., dissenting
the support of any one establishment, may force him to
conform to any other establishment in all cases whatso
ever.’ ” 392 U. S., at 103 (quoting 2 Writings of James
Madison 183, 186 (G. Hunt ed. 1901)); see ante, at 12–14.
And that is all the majority can come up with.
But as indicated earlier, everything of import in Flast
cuts against the majority’s position. Here is how Flast
stated its holding: “[W]e hold that a taxpayer will have
standing consistent with Article III to invoke federal
judicial power when he alleges that congressional action
under the taxing and spending clause is in derogation of”
the Establishment Clause. 392 U. S., at 105–106. Noth
ing in that straightforward sentence supports the idea
that a taxpayer can challenge only legislative action that
disburses his particular contribution to the state treasury.
And here is how Flast primarily justified its holding:
“[O]ne of the specific evils feared by those who drafted the
Establishment Clause and fought for its adoption was that
the taxing and spending power would be used to favor one
religion over another or to support religion in general.”
Id., at 103. That evil arises even if the specific dollars that
the government uses do not come from citizens who object
to the preference. Likewise, the two-part nexus test,
which is the heart of Flast’s doctrinal analysis, contains no
hint of an extraction requirement. See supra, at 4. And
finally, James Madison provides no comfort to today’s
majority. He referred to “three pence” exactly because it
was, even in 1785, a meaningless sum of money; then, as
today, the core injury of a religious establishment had
naught to do with any given individual’s out-of-pocket loss.
See infra, at 21–23 (further discussing Madison’s views).
So the majority is left with nothing, save for three words
Flast used to describe the particular facts in that case: In
not a single non-trivial respect could the Flast Court
recognize its handiwork in the majority’s depiction.
The injury to taxpayers that Flast perceived arose
Cite as: 563 U. S. ____ (2011) 19
KAGAN, J., dissenting
whenever the legislature used its taxing-and-spending
power to channel tax dollars to religious activities. In that
and subsequent cases (including the five in this Court
involving tax expenditures), a taxpayer pleaded the requi
site harm by stating that public resources were funding
religion; the tracing of particular dollars (whether by the
Solicitor General’s “electronic tag” or other means) did not
enter into the question. See DaimlerChrysler Corp., 547
U. S., at 348 (describing how the Flast Court’s under
standing of the Establishment Clause’s history led the
Court to view the alleged “injury” as the expenditure of
“ ‘tax money’ in aid of religion” (quoting Flast, 392 U. S., at
106)). And for all the reasons already given, that standard
is met regardless whether the funding is provided via cash
grant or tax expenditure. See supra, at 11–16. Taxpayers
pick up the cost of the subsidy in either form. See ibid. So
taxpayers have an interest in preventing the use of either
mechanism to infringe religious neutrality.10
——————
10 On this traditional view of the harm to taxpayers arising from state
financing of religion, the Plaintiffs here can satisfy not only Article III’s
injury requirement, but also its causation and redressability require
ments. The majority’s contrary position, ante, at 15–16, stems from its
miscasting of the injury involved; once that harm is stated correctly, all
the rest follows. To wit: The Plaintiffs allege they suffer injury when
the State funnels public resources to religious organizations through
the tax credit. Arizona, they claim, has caused this injury by enacting
legislation that establishes the credit. And an injunction limiting the
credit’s operation would redress the harm by preventing the allegedly
unlawful diversion of tax revenues. The Plaintiffs need not, as the
majority insists, show that this remedy would “affect . . . their tax
payments,” ante, at 16, any more than the taxpayer in Flast had to
establish that her tax burden would decrease absent the Government’s
funding of religious schools. As we have previously recognized, when
taxpayers object to the spending of tax money in violation of the Estab
lishment Clause (whether through tax credits or appropriations), “an
injunction against the spending would . . . redress [their] injury, regard
less of whether lawmakers would dispose of the savings in a way that
would benefit the taxpayer-plaintiffs personally.” DaimlerChrysler
Corp. v. Cuno, 547 U. S. 332, 348–349 (2006).
20 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
WINN
KAGAN, J., dissenting
Indeed, the majority’s new conception of injury is at
odds not merely with Flast, but also (if ironically) with our
cases precluding taxpayer standing generally. See supra,
at 3; ante, at 6–10. Today’s majority insists that legisla
tion challenged under the Establishment Clause must
“extrac[t] and spen[d] a conscientious dissenter’s funds.”
Ante, at 15. But we have rejected taxpayer standing in
other contexts because each taxpayer’s share of treasury
funds is “minute and indeterminable.” Frothingham, 262
U. S., at 487. No taxpayer can point to an expenditure (by
cash grant or otherwise) and say that her own tax dollars
are in the mix; in fact, they almost surely are not. “[I]t is,”
as we have noted, “a complete fiction to argue that an
unconstitutional . . . expenditure causes an individual . . .
taxpayer any measurable economic harm.” Hein, 551
U. S., at 593 (plurality opinion). That is as true in Estab
lishment Clause cases as in any others. Taxpayers have
standing in these cases despite their foreseeable failure to
show that the alleged constitutional violation involves
their own tax dollars, not because the State has used their
particular funds.
And something still deeper is wrong with the majority’s
“extract and spend” requirement: It does not measure
what matters under the Establishment Clause. Let us
indulge the Court’s fiction that a taxpayer’s
“.000000000001 penny” is somehow involved in an ordi
nary appropriation of public funds for religious activity
(thus supposedly distinguishing it from a tax expenditure).
Still, consider the following example: Imagine the Internal
Revenue Service places a checkbox on tax returns asking
filers if they object to the government using their taxes to
aid religion. If the government keeps “yes” money sepa
rate from “no” money and subsidizes religious activities
only from the nonobjectors’ account, the majority’s analy
sis suggests that no taxpayer would have standing to
allege a violation of the Establishment Clause. The funds
Cite as: 563 U. S. ____ (2011) 21
KAGAN, J., dissenting
used, after all, would not have been “extracted from a
citizen and handed to a religious institution in violation of
the citizen’s conscience.” Ante, at 16. But this Court has
never indicated that States may insulate subsidies to
religious organizations from legal challenge by eliciting
the consent of some taxpayers. And the Court has of
course been right not to take this approach. Taxpayers
incur the same harm, and should have the same ability to
bring suit, whether the government stores tax funds in
one bank account or two. None of the principles underly
ing the Establishment Clause suggests otherwise.
James Madison, whom the Court again rightly labels
“the leading architect of the religion clauses,” ante, at 13
(quoting Flast, 392 U. S., at 103; internal quotation marks
omitted), had something important to say about the mat
ter of “extraction.” As the majority notes, Madison’s Me
morial and Remonstrance criticized a tax levy proposed in
Virginia to aid teachers of the Christian religion. Ante, at
12–13. But Madison’s passionate opposition to that pro
posal informs this case in a manner different than the
majority suggests. The Virginia tax in fact would not have
extracted any monies (not even “three pence”) from unwill
ing citizens, as the Court now requires. The plan allowed
conscientious objectors to opt out of subsidizing religion by
contributing their assessment to an alternative fund for
the construction and maintenance of county schools.11 See
——————
11 The opt-out provision described county schools as “seminaries of
learning.” A Bill for Establishing A Provision for Teachers of the
Christian Religion, reprinted in Everson v. Board of Ed. of Ewing, 330
U. S. 1, 74 (1947) (supplemental appendix to dissent of Rutledge, J.). In
1785, that phrase had no particular religious connotation: It “meant
schools for general education, not schools for the training of ministers.”
Berg & Laycock, Mistakes in Locke v. Davey and the Future of State
Payments for Services Provided by Religious Institutions, 40 Tulsa
L. Rev. 227, 244, n. 113 (2004); see also, e.g., 2 S. Johnson, Dictionary of
the English Language 1741 (1773) (“seminary” means “place of educa
tion, from whence scholars are transplanted into life”).
22 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
WINN
KAGAN, J., dissenting
A Bill Establishing A Provision for Teachers of the Chris
tian Religion, reprinted in Everson v. Board of Ed. of
Ewing, 330 U. S. 1, 74 (1947) (supplemental appendix
to dissent of Rutledge, J.); Letter from James Madison to
Thomas Jefferson (Jan. 9, 1785), reprinted in 2 Writings of
James Madison, at 102, 113; see also Blasi, School Vouch
ers and Religious Liberty: Seven Questions from Madi
son’s Memorial and Remonstrance, 87 Cornell L. Rev. 783,
784 (2002) (the tax provision “permitted each taxpayer
to specify which Christian denomination should re
ceive his payment” and “[t]hose who did not wish to sup
port a church could direct their assessment to a pro
posed common school fund”). Indeed, the Virginia
Assessment was specifically “designed to avoid any
charges of coercion of dissenters to pay taxes to support
religious teachings with which they disagreed.” Feldman,
Intellectual Origins of the Establishment Clause, 77 N. Y.
U. L. Rev. 346, 383 (2002).12
——————
12 The majority speculates that the Virginia General Assembly would
have given some of the monies collected from conscientious objectors to
schools with a sectarian bent. Ante, at 13. Because the Assessment
never became law, no one can know which county schools would have
received aid; indeed, the first of these schools did not open its doors
until decades later. See W. Miller, First Liberty 26 (2003); see gener
ally J. Buck, Development of Public Schools in Virginia 1607–1952
(1952). But historians and legal scholars have uniformly understood
the opt-out provision as a considered attempt to accommodate taxpay
ers who did not want their tax dollars to go to religion. See Berg &
Laycock, supra, at 244, n. 113 (the “provision for payment to a school
fund was not an effort to support religious schools as part of support for
education overall,” but rather “was an effort to accommodate the
possibility of non-Christian taxpayers”); T. Buckley, Church and State
in Revolutionary Virginia, 1776–1787, p. 133 (1977) (under the “text of
the proposed bill . . . nonbelievers would [not] be forced to contribute to
religion” because “[t]he assessment had been carefully drafted to permit
those who preferred to support education rather than religion to do so”);
see also, e.g., Miller, supra, at 26; Underkuffler-Freund, Separation of
the Religious and the Secular: A Foundational Challenge to First
Amendment Theory, 36 Wm. & Mary L. Rev. 837, 889–890, n. 265
Cite as: 563 U. S. ____ (2011) 23
KAGAN, J., dissenting
In this respect, the Virginia Assessment is just like the
Arizona tax credit. Although both funnel tax funds to
religious organizations (and so saddle all taxpayers with
the cost), neither forces any given taxpayer to pay for the
subsidy out of her pocket. Madison thought that feature of
the Assessment insufficient to save it. By relying on the
selfsame aspect of the Arizona scheme to deny the Plain
tiffs’ claim of injury, the majority betrays Madison’s vision.
III
Today’s decision devastates taxpayer standing in Estab
lishment Clause cases. The government, after all, often
uses tax expenditures to subsidize favored persons and
activities. Still more, the government almost always has
this option. Appropriations and tax subsidies are readily
interchangeable; what is a cash grant today can be a tax
break tomorrow. The Court’s opinion thus offers a road
map—more truly, just a one-step instruction—to any
government that wishes to insulate its financing of reli
gious activity from legal challenge. Structure the funding
as a tax expenditure, and Flast will not stand in the way.
No taxpayer will have standing to object. However bla
tantly the government may violate the Establishment
Clause, taxpayers cannot gain access to the federal courts.
And by ravaging Flast in this way, today’s decision
damages one of this Nation’s defining constitutional com
mitments. “Congress shall make no law respecting an
establishment of religion”—ten simple words that have
stood for over 200 years as a foundation stone of American
religious liberty. Ten words that this Court has long
understood, as James Madison did, to limit (though by no
——————
(1995); Adams & Emmerich, Heritage of Religious Liberty, 137 U. Pa.
L. Rev. 1559, 1573 (1989); Laycock, “Nonpreferential” Aid to Religion: A
False Claim About Original Intent, 27 Wm. & Mary L. Rev. 875, 897,
and n. 108 (1985–1986); L. Pfeffer, Church State and Freedom 110 (rev.
ed. 1967).
24 ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION v.
WINN
KAGAN, J., dissenting
means eliminate) the government’s power to finance reli
gious activity. The Court’s ruling today will not shield all
state subsidies for religion from review; as the Court
notes, some persons alleging Establishment Clause viola
tions have suffered individualized injuries, and therefore
have standing, independent of their taxpayer status. See
ante, at 1–2, 17–18. But Flast arose because “the taxing
and spending power [may] be used to favor one religion
over another or to support religion in general,” 392 U. S.,
at 103, without causing particularized harm to discrete
persons. It arose because state sponsorship of religion
sometimes harms individuals only (but this “only” is no
small matter) in their capacity as contributing members of
our national community. In those cases, the Flast Court
thought, our Constitution’s guarantee of religious neutral
ity still should be enforced.
Because that judgment was right then, and remains
right today, I respectfully dissent.