News Intelligence Analysis
On Robbing Peter to Pay St. Paul
Or Why the Supreme Court Erred on
The Arizona Christian School Tuition Organization Case
By Katherine Yurica
April 29, 2011
I. How Arizona Launched its End Run to the Supreme Court “When we write a law,” the State of Arizona said,
in rather a scornful tone, “it means just what we choose
it to mean—neither more nor less.”“The question is,” said Justice Kagan, “whether you can make
a law mean so many different things.”“The question is,” said Arizona, “who is to be master—that’s all.”
(With Apologies to Lewis Carroll)
It was bound to happen again. It simply is just human nature to use and reuse an idea that has worked brilliantly for one in the past. Indeed, my readers will immediately acknowledge, as I do, that I have used and reused Lewis Carroll’s characters and methods more than once. That is of course, something unsurprising amongst obscure personalities, (as I think of myself). But when a fine state like Arizona is joined by the Majority of the Supreme Court of the United States, (those fine specimens of humanity I have previously and tenderly called, “The Handsome Five,”), when they both—brilliant as they both are—commit themselves to Humpty Dumpty's methodology again and again, it is a surprising if not an astonishing phenomenon! I, of course, would be extremely remiss in my obligation to my readers, if I failed to point this out.
For the fact of the matter is this: the Supreme Court decision in Arizona Christian School Tuition Organization v. Winn et al, (No. 09-987 and decided April 4, 2011) will go down in history, and then go still further down in history, and then plunging still more, its fame will at last be based solely on its endless declination into the bottomless pit of self-rectifying-absorption—-instead of anything resembling what was initially believed to be a brilliant example of intelligent design!
You see, Arizona was entirely at fault. The state knew in its heart of hearts that unless it did an end run around the traditional court procedures, it would wind up a terrible loser, perhaps even losing its face. And so, the beleaguered state, along with other staid complainants, activated the launching procedures that shot the case forward, and being careful to take only back roads filled with detours, Arizona unwittingly unleashed the prophetic words of Sir Walter Scott’s famous warning:
“Oh what a tangled web we weave when first we practice to deceive.” You see, there is something in the dry air of Arizona that has the power to turn a mere mirage into a living, breathing fraud that disguises itself at will. At first it looks like a scheme, then it looks like a gold mine, then suddenly it turns itself into a law!
Notwithstanding this brief introduction, I truly desire to save the face of the Supreme Court in all of this, which necessarily means preserving the exceedingly fine reputation of the “Handsome Five,” which of course, necessarily rests on the Majority’s collective opinion. But the awkward fact remains: I cannot help the situation by suppressing the truth about the case.
In the meantime, I ought, in all good conscience, point out some important facts that were generally overlooked by the press in recent articles regarding the justices, particularly noting the flaws in this latest decision, and focusing on the court’s habitual tendencies, and most importantly, on the newly developed court weapons. For instance, my readers should know this: unlike the recently retired Justice Stevens, Justice Elena Kagan does not carry a sword—not even one as distinguished as the famous Vorpal Blade, which was wielded by Justice Stevens in his last major dissenting opinion, (of which I have written extensively and published on the web.)[1] Significantly, Justice Kagan carries a different type of weapon entirely—one that is designed to devitalize and, if necessary, to eradicate thoughtlessness—it’s usually called a ‘vacuum cleaner,’ which, unfortunately conjures up images of women cleaning floors and furniture. However this particular sweeper is a disguised ‘Genie,’ (a word which is well known to have been derived from the Latin “genius,”) and is a particularly discreet guide that attached itself to her and which allegedly has multiple powers and is remarkable for its ability to clean up all the intellectual messes strewn about by the other justices over the last twenty-nine years. So this extraordinary vacuum cleaner, whose name incidentally is “Genie,” has powers that only a few insiders know about, and only a very few of us have become privy to. More on that later. But first, I need to introduce my analysis of the scandalous Arizona decision.
II. On the Clever Deployment of a Tricky Tactic “The Government that robs Peter
to pay Paul can always depend upon
the support of Paul.”George Bernard Shaw “Because respondents challenge a tax credit
as opposed to a governmental expenditure,
they lack Article III standing …”Majority Opinion of SCOTUS
This story began when Arizona’s State legislators passed an unfortunate law in 1997 that granted a dollar-for-dollar tax credit to tax payers who chose to make payments of up to $500 each (or $1,000 for married couples) to any one of the state created establishments called “school tuition organizations.” These organizations laudably arrange scholarships for needy children to attend private schools. But significantly, according to Arizona’s Supreme Court brief, the law as written permits the school tuition organizations “to provide scholarships only to religious schools,” [2] so it would not be surprising to discover that churches operated these organizations—for example, the Catholic Church operated at least two of them.[3]
Now, notably, as it so happens, all the lawyers in the case, as well as the Supreme Court Justices themselves, refer to these school tuition organizations as “STOs,” which was created from the initials of the original name! (I admit readily that I prefer this shortened designation because it suggests, and may in fact, imply the word “stow,” which of course connotes “stowing” and in fact, at least in the case of a variation on the word, brings up the imagery of a “stowaway,” and hints at “hiding something on board a vessel,” which is, as we shall see, exactly what the Arizona legislators did!) Actually, the STOs facilitate the funneling, or if I may be so bold, the laundering of tax monies into the coffers of established religious organizations, which as everyone knows is prohibited by the First Amendment of the U.S. Constitution.[4]
As Justice Kagan revealed in her brilliant dissenting opinion (that clearly utilized her vacuum cleaner’s great, if hidden, powers), the process that transfers the monies from the coffers of the state, through the hands of taxpayers, then into the holding tank of the STOs and ultimately into the coffers of a religious organization is very, very simple as well as ingenious. And it all began because, who wouldn’t want to know how to claim a $500 tax credit? Justice Kagan explained:
“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…. the STO payment is therefore ‘costless’ to the individual…it comes out of what she otherwise would be legally obligated to pay the State—hence, out of public resources.”[5]
I probably should also re-emphasize that the steps involved reveal that the tax is continuously guided by the strong arm of the state; that is, the recipient cannot do anything she desires with the tax credit, but according to the Arizona statute, she must utilize the credit in the prescribed way: either the taxpayer writes a check to the state for the total amount of her tax and sends it off to the state or she selects a STO approved by the state, and sends her check up to the $500 allowed for the tax credit to the STO. This new and creative tax innovation worked beautifully for the private schools when it came to money. As Justice Kagan pointed out:
“By the State’s reckoning, from 1998 to 2008 the credit cost Arizona almost $350 million in redirected tax revenue.” [6]
After the funds are transferred and received into its coffers, the STO awards a scholarship to a child who has applied to enter a private school. However, the plaintiffs in the case, point out that many of the STOs scholarships are awarded to a child based upon the child’s religion.[7] (Uh oh! Do warning sounds go off in your head?)
Now the more I studied the background of the lawsuit, the more I realized that something vital was missing. For starters, according to the Arizona law Section 1089, something peculiar sounding is buried in the wording. Under it, a qualified school is defined as a school that:
“…does not discriminate on the basis of race, color, handicap, familial status or national origin…” (See 43-1089 [L10, Ch. 188, sec. 1]) [8]
However, something feels wrong in the cadence of the State’s law—not that I am suggesting that the Supreme Court should ever pay attention to the cadence of a sentence—but alert readers may of course automatically sense something is amiss by noting the rhythm of a sentence. Thus one might have noticed that the inclusion of the words “handicap,” and “familial status” tend to blind the mind of the reader so that an important omission could easily slide by unnoticed. Nonetheless, that otherwise laudable sentence triggers sirens in some way and causes them to go off. Something vital appears to be missing! And it is clearly connected to the cadence of the sentence or the lack of it! The answer to the mystery is that the Arizona law uses the words “race and color” but omits the word “creed.” For the original famous phrase was “Race, Creed or Color.”
It is a fact that Arizona’s Section 1089 omits the one small word that would have legitimized the law and made the law Constitutional. However, to pluck out the word “creed” —or simply never to insert the word in the first place, was a stroke of brilliance that must be recorded in the annals of legislative history. Because without the word “creed” or “religion” inserted into the law, Arizona’s qualified private schools are legally enabled to discriminate on the basis of religion. (Selah! Pause and think on that!) If they can accept a child candidate for a scholarship based upon the child’s religion—they can also reject that child based on the child’s religion. It appears that both the STOs and the schools are enabled to legally disqualify any child on the basis of the child’s religion simply because the Arizona legislators omitted religious freedom from the law. In this case, silentium est aurum, from the Latin, literally means, “silence is gold!”
The phrase, “Race, Creed or Color” according to the FirstMention.com website, was thought to have been used for the first time in 1864 in the context of a “Civil War era hospital known as the Protestant Hospital in Milwaukee.”[9] The Milwaukee Daily Sentinel reported on February 9, 1864 that the “hospital is even-handed in its treatments, “Patients are received without distinction of country, color or religion.” And “Its charity knows no distinctions of race, creed or color…”[10]
Senator Conkling of New York then picked the phrase up and used it on the Senate floor (which was reported in the New York Times on January 19, 1866). Conkling also included the phrase in his Reconstruction Resolution, which assured human rights within the borders of every state of the Union for all:
“… regardless of race, creed or color…” [11]
Since the Arizona legislators omitted the word “creed” or “religion” from their list of prohibitions, the Arizona law has to be understood as a legally sanctioned right of a “qualified school” to discriminate on the basis of an applicant’s creed. This omission places the Arizona law in violation of the First and the Fourteenth Amendments to the U.S. Constitution.
Yet Arizona, fighting for the very life of its scheme, asserted in its brief to the Supreme Court: “Section 1089’s language is neutral; it does not mention religion.”[12] [Emphasis added] But that assertion misrepresents the facts. For there are only two ways that the “qualified school section” could have been written: either the way the law actually reads or the way it should have been written:
1) “…does not discriminate on the basis of race, color, handicap, familial status or national origin…”
Or the way it should have been written:
2) “…does not discriminate on the basis of race, religion, color, handicap, familial status or national origin…”
Then Arizona, still fighting in its brief to have its way, pointed out to the Supreme Court that the folks who brought the suit against the state:
“…have not shown that any legislator, much less the entire legislative body, had an improper religious motive for enacting Section 1089…. This Court [that is the U.S. Supreme Court] has found the government’s stated purpose to be a sham only when the challenged statute’s text, legislative history, or implementation shows that it has tried to cover up obviously religious motives or when its actions can be explained only by a religious motivation.” [13]
Oh Arizona! Dear Arizona! The challenged statute’s text and the history of the implementation show exactly that! And the state has tried to cover up its obvious religious motives—and so far, it has completely succeeded.
Therefore, since the First Amendment prohibition against the establishment of religion extends to the states through the 14th Amendment, the monies funneled to the “qualified Arizona schools” through the tax credit scheme actually constitute state supported discrimination—else the state would have prohibited the qualified schools from discriminating based upon creed in the first place! To understand the enormity of the state’s exclusion of “creed”or “religion” from its law, think about the Protestant Hospital in Milwaukee in 1864 and ask this question: “What if the hospital had chosen to discriminate in its choice of patients by limiting its treatment to Protestants only?”
Suppose, just for a moment, the Protestant Hospital phrased its treatment terms by saying:
“Patients are received without distinction of country or color and the hospital’s charity knows no distinctions of race or color, but every Catholic, Mormon, Jewish, or atheist soldier will be sent elsewhere!”
Now using your sensibilities, ask yourself if the average citizen would want his or her state’s tax dollars going toward supporting such a hospital or any other similarly structured institution of any kind? Then ask yourself this: “Would it make any difference to me if I were a Protestant or a Catholic or if I were Jewish or an atheist or a Mormon?” But someone might ask, if the discrimination is repugnant to us solely because the charity is a hospital but a parochial school is just a school, might we not be inclined to be less severe in our attitude toward the school? Of course, the severity of the hospital’s discrimination is worse but discrimination is discrimination and segregation is segregation whether or not it is on a bus, at a drinking fountain or a restaurant or hospital or at a school! The U.S. Constitution makes no distinction when it prohibits our legislators from making laws respecting an establishment of religion.
What Arizona has done and the Supreme Court Majority has unknowingly endorsed is a new and significant way to reintroduce discrimination into the fabric of our American way of life. The Arizona law does this by endorsing a tax subsidy system for institutions that discriminate on the basis of a citizen’s or her child’s religion.
Sometimes even the wisest of men and courts, consisting of honorable and great men of renown, can make a terrible mistake. They can become exceedingly confused and in their confusion they can convolute ideas to such a degree that both the men and their thoughts fall from a great height—so that not even “all the king’s horses and all the king’s men, can put the Humpty Dumpty Court back together again!”
End Notes
[1] https://www.yuricareport.com/Law%20%26%20Legal/A_Lone_PamphleteerAnswersSCOTUS.html
[2] According to the Petitioner Gale Garriott's Supreme Court Brief, as Director of the Arizona Department of Revenue, at page 18: “And Section 1089’s implementation is consistent with its language that requires STOs to provide scholarships to two or more schools and therefore permits STOs to provide scholarships only to religious schools.” http://www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_09_10_09_991_PetitionerGaleGarriott.authcheckdam.pdf
[3] Deacon Keith Fournier, “U.S. Supreme Court,” April 6, 2011, at Catholic Online. Fournier served as co-counsel on several cases of constitutional import before the United States Supreme Court when he led the American Center for Law and Justice from 1991 through 1997. He is a Catholic Deacon and the founder of Common Good. He currently serves as the Senior Editor of Catholic Online and is a contributing editor of Traditional Catholic Reflections and Reports. At: http://www.catholic.org/national/national_story.php?id=40933&page=1 However, subsequently, as of May 15, 2011, an advisory provided by Google reported that malicious software was found on the www.catholic.org website so the editors of Yuricareport.com have disconnected the link to protect our readers.
[4] Now everyone—or nearly everyone—and certainly all brilliant people know that neither the government of the United States nor the various state governments are allowed to pass laws respecting the establishment of religion because the prohibition was written into the first amendment. And what is more, this prohibition extends to all the various states in the union through the Fourteenth amendment as quoted in pertinent parts:
First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” [Emphasis added]
The 14th Amendment: Section 1. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [Emphasis added]
The guarantee against the establishment of religion in the First Amendment has been incorporated against the states through the 14th Amendment by the courts. See Everson v. Board of Education, 330 U.S. 1 (1947). And see the discussion here: http://en.wikipedia.org/wiki/Everson_v._Board_of_Education
[5] Kagan, J. Dissenting opinion, 563 U.S. Arizona Christian School Tuition Organization v. Winn, Et. Al. at page 15. http://www.supremecourt.gov/opinions/10pdf/09-987.pdf
[6] Ibid. p. 16.
[7] Kagan, J. Dissenting opinion, 563 U.S. Arizona Christian School Tuition Organization v. Winn, Et. Al. at page p. 1 http://www.supremecourt.gov/opinions/10pdf/09-987.pdf
[8] http://www.azleg.gov/ars/43/01089.htm
[9] See “Race, Creed or Color” at the FirstMention.com web site: http://firstmention.com/racecreedcolor.aspx
[10] Ibid.
[11] Ibid.
[12] Petitioner Gale Garriott's Brief on the Merits for Arizona, presented by Terry Goddard, Attorney General of Arizona at page 18.
[13] Ibid. page 19, citing McCreary, 545 U.S. at 845, 864-65.
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See also:
Senators Kyl and Graham's
Hamdan v. Rumsfeld Scam:
The Deceptive Amicus Brief They
Filed in the Guantanamo Detainee Case
Wednesday, Jul. 05, 2006
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