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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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84 Responses

  1. Avatar tom van dyke says:

    Accommodation of religion isn’t synonymous with establishment.

    During construction of the District of Columbia, since the churches hadn’t been built yet, government buildings including the halls of Congress itself were “lent” for religious services—even-handedly—to any sect that wanted to borrow them. Even Mr. Separation hisself, Thomas Jefferson, attended.

    This little factoid is often glossed over.

    As for Madison, his “separation” argument was exclusively limited [iirc] to an opposition to direct subsidies. And although we value him perhaps above all Framers, he lost his share of battles, including the payment [a direct subsidy] of chaplains in Congress, a custom that continues to the present day.

    “Freedom from religion” is rather a new idea and argument; until say Everson, accommodation and pluralism was the American Way. Pluralism—an openness to all comers, let 1000 flowers bloom—is not “establishment,” or at least wasn’t considered so before the modern hypersecular age.

    “Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!” Report

    • Avatar BlaiseP says:

      Look, as a Christian myself, I wish more people were convinced of the truth of Jesus Christ, perceiving in Christianity a step up from the Law of Moses to a higher plane where we are called upon to love our enemies and perceive the Kingdom of God is in the hearts of man. Christ never condemned any religion but his own, and that for its hard heartedness and legalism.

      Yet when it comes to Church and State, I look at the commingling of the two rather like illegally obtained evidence before a court. When anyone’s tax dollar, especially an atheist’s tax dollar, ends up in the pocket of a religious entity, be that entity ever so worthy, however commendable the reasoning might be for that dollar ending up there, I must say it’s contrary to the Establishment Clause. That dollar establishes something, enables something. I sure wish I could get some government dollars for my refugees, I’d put those dollars to work effectively and not one of those dollars would end up in my pocket. But it would violate my own ethical considerations.

      God may save the USA, but all others pay cash.Report

  2. Avatar Jon Rowe says:

    I think separation of church and state to separation of powers is a good analogy in more ways than one. Some argue, perhaps correctly, the administrative state, where admin. agencies have quasi legislative, executive, and judicial power, is unconstitutional in that it violates the constitutional “separation of powers.” But which private taxpayer has “standing” to bring such an action?

    I think America’s Founders DID intend to “separate church and state” AND they had the third prong of the Lemon Test (avoiding excessive entanglement between church and state) in their consciences for what makes good policy.

    However, the same problem exist for giving private, aggrieved tax payers “standing” to enforce SOCAS as with separation of powers; they have to show the government policy they argue unconstitutional meaningfully touches them in a sense beyond having their tax dollars support something they don’t like or they believe unconstitutional.

    Religious rights, enforceable in a constitutional sense, have to directly affect parties in a this “picks my pocket” or “breaks my leg” sense as Jefferson put it to make it a matter of proper constitutional concern.

    At least, that’s what’s making sense to my mind today.Report

  3. I haven’t read the opinion yet, and I admit it’s been a good decade since I last read any of the applicable case law on First Amendment standing, but this decision bugs the crap out of me. And I say this as someone who thinks that individual tax credits for purposes of a child’s education expenses, whether in a religious setting or not, are Constitutional.

    This structure for determining standing vaults form over substance, thereby insuring that any smart legislator can ensure that preferred policies of dubious (though perhaps debatable) Constitutional provenance are impossible to challenge by anyone other than an insider.Report

  4. Avatar Pat Cahalan says:

    > Kennedy in particular went out of his way to underline the
    > idea that Congress and the President both have independent
    > duties to make sure that what they do is Constitutional,
    > and that he was quite, quite sure that left to their own
    > devices, the political branches would police themselves
    > just fine and therefore there was no need of allowing
    > taxpayers to challenge these subsidies.

    That got a belly laugh.Report

    • Avatar Burt Likko says:

      Which is why the decision is so irritating. Perhaps, as tom van dyke suggests, the line between an acceptable “accommodation” and a prohibited “establishment” was not crossed. Or perhaps not; we don’t know right now, and won’t know ever, until someone can make that argument on its merits and a court makes a ruling on it. A decision narrowing the ability of the courts to reach the merits of such a controversy should be viewed with askance. Looking at our Constitution through the lens of “no harm, no foul” invites lawlessness. So contrary to Justice Kennedy’s proclamations to the contrary in yesterday’s case, it is decidedly not to the credit of courts that they refuse to decide cases brought before them; it is inherently the particular province of courts to resolve individual controversies, on their merits.Report

      • Avatar Pat Cahalan says:

        > A decision narrowing the ability of the courts to
        > reach the merits of such a controversy should
        > be viewed with askance.

        Yeah, I’m not fond of these either. It seems like they all too often represent “punt”, and then N years later suddenly standing is magically granted to someone to pick up the ball, because now the courts think the particular issue is safe to touch with a ten foot pole.Report

  5. Avatar BlaiseP says:

    I know there are a few atheists around here. What do y’all make of the Winn decision? I always resort to atheists’ opinions in such cases.Report

    • Avatar Pat Cahalan says:

      I’m not exactly certain what I am. Does “stuck in theological struggle” count?Report

      • Avatar BlaiseP says:

        Sure, that counts in my book. See, I may be a little gun shy on this issue, I tend to think in terms of the French antipathy to religiosity in the public square.Report

        • Avatar Pat Cahalan says:

          Most of what I was going to say is roughly analogous to what Jaybird just said.

          About the only difference is, “You wouldn’t believe some of the dumb shit that the government makes me pay for and bland art is pretty far down the list of stuff that gets me riled.”

          Not because I get riled about the government making me pay for bland art. But because I get riled at public displays of bland art.

          Public displays of good art, I’m all on board with whether it’s the Madonna & Christ or a landscape or a still life of an orange.

          Bland art offends me as an art consumer. But that’s hardly a fight into which we ought to bring the law.Report

          • Avatar BlaiseP says:

            That’s an excellent argument, what with this foofaraw over that mural up in Maine.

            See, here’s where it gets tricky. Let’s substitute St. Crispin’s Technical School (patron saint of shoemakers) for the State of Maine in that case. St. Crispin’s took the 60 grand, everyone was quite glad at the time, then someone from the Vatican stopped by and had the painting removed because it showed striking leatherworkers in violation of God’s Natural Law. Now what?

            Our first impressions are to consider the Church-State problem from the Church grifting from the State. It’s chump change, we’d say, there’s no reason a child couldn’t receive a decent education at a religious school. But what about the State imposing its will on the Church, as it has elsewhere? And to Bonhoefferize this problem, today this little group, tomorrow another, when it gets to me, who will say No?Report

    • Avatar Jaybird says:

      I suppose I am an atheist, or close enough.

      My problem is that, in the absence of a deity, most stuff that gets qualified as “religious establishment” looks a lot like “speech” to me and I’m not a fan of saying “YOU CAN’T SAY THAT!”

      I’m a fan of saying “if you say that, you have to allow room for others to say stuff too”, of course… but I don’t like the idea of someone saying “you can’t say this because it’s an establishment of religion” because that seems pretty identical to saying “you can’t say this” which strikes me as a violation of the Right of Free Speech.

      I mean, a public prayer is just a public speech. That’s all it is. It’s not like there’s a god listening to it. Saying that so-and-so shouldn’t give a public speech because it’s directed to a god that isn’t there strikes me as far, far more offensive and dangerous than the offense and damage done by allowing it.

      I don’t mind idols in public places.

      If I believed in god(s), maybe I’d feel differently… but, from here, it’s a statue. It’s art.

      Now, I am down with the idea of not being forced to pay for the statue out of my own wallet… but you wouldn’t believe some of the dumb shit that the government makes me pay for and bland art is pretty far down the list of stuff that gets me riled.

      (But I don’t know how representative of atheism I am.)Report

      • Avatar BSK says:


        Who said there should be a ban on public prayers?

        There is a difference between allowing and enabling. Saying, “You can build all the churches you want on land that you have come to own fair and square” is one thing. Saying, “Here is a tax break and a sweetheart land deal to help get your church started” is quite another. And, while there is no limit to the amount of free speech that the world can hold, there is a limit to the amount of enabling that the government can do. Some people say, “Well, the government will do the same for ANY religious institution.” Really? What about the religion I just started believing in only a few seconds ago and that no one but me knows about? Oh, that doesn’t get the sweetheart deal? I’m not a ‘real’ religion? Well, who decides? And wouldn’t that qualify as an absurd violation of the 1st Amendment?

        I don’t know if I’m an atheist or an agnostic or what, largely because I’m not too well versed in what those terms mean to all the people who throw them around. Most importantly, I don’t adhere or align myself with any specific belief system and, more to the point, any organized religious institution. I’d rather not see any public money (be it direct grants or tax-free status) go to religious institutions. It’s just too ugly a relationship. If the government isn’t prepared to extend these benefits to every imaginable religion possible (and they’re not) then I see no way that they can extend them at all without violating the 1st Amendment.Report

        • Avatar Jaybird says:

          There are any number of people who object to prayers given before official functions. As if God is listening and the prayer will undo the latch that will finally allow him to intervene just! This! Once! Do you need me to find examples of this for you?

          What about the religion I just started believing in only a few seconds ago and that no one but me knows about?

          I’m sure there’s paperwork out there for you to fill out. Go for it. Look at California. I’m pretty sure that you can establish a church of whatever you want within a month or two and officially be able to marry people. (I am not kidding.)

          Are you saying that you should *NOT* be able to do this?

          If the government isn’t prepared to extend these benefits to every imaginable religion possible (and they’re not) then I see no way that they can extend them at all without violating the 1st Amendment.

          From what I understand, anybody can register as a 501(c)3 tax exempt organization with the IRS.

          Fill out your paperwork and, tah-dah, you’re a church.

          Is there another definition that matters, assuming no God?Report

          • Avatar Burt Likko says:

            The IRS used to pass out 501(c)(3) exemptions for organizations on a pretty free basis without a lot of scrutiny into what the organization was actually doing. That’s changed; there’s some fairly searching investigation into activities before 501(c)(3) status is awarded.

            The real question is whether churches should be 501(c)(3)’s at all and whether churches should receive such favorable treatment by taxing authorities such as exemptions from property taxes. Granted that churches do engage in substantial charitable work that does benefit the public at large — but they also engage in religious instruction, and it’s less clear to me how religious instruction benefits the public. This question becomes less shocking when one assumes that God is not real, but even if She is, it’s still not clear how giving tax breaks to churches benefits the public until and unless the government decides which particular church is spreading The Truth, which would be the very essence of an Establishment.Report

            • Avatar Jaybird says:

              We can look at The Johnson Amendment of 1954.

              LBJ said that people should not discuss politics from the pulpit and, if they did, the tax exempt status of the church would be revoked!

              We can all agree with this sentiment, right?

              Except, of course, it was passed to keep African-American churches from discussing such political ideas as “equality under the law”.

              One wonders if Southern Baptist churches were hit by the gummint for preaching about “God’s Natural Order of Things”… no, actually. One doesn’t.

              So I’m not crazy about The Johnson Amendment.

              It will only be applied to minorities while the majority churches can still give sermons about what God is *REALLY* thinking without fear of loss of tax status.Report

              • Avatar BSK says:


                Yes, people do complain about public prayers. But I didn’t see that in the post here nor do I consider it a real issue. It may be in bad taste at times, but certainly should not be illegal.

                Personally, I’d just rather see government not at all involved with religion than try to keep up with it. Especially when you move beyond money. Some folks say, “Leave the Christian icons up in public places and just make room for others.” The public square fills very quickly… especially with all my made up dragon lore!Report

              • Avatar Jaybird says:

                I’m a fan of “we won’t pay for the statue, but we’ll make room if we can”.

                Let the church shell out for the Crucifix, you can shell out for your Dragon cult abomination, and the Mormons can put a plaque on a block of stone and say “this block of stone is similar to a block of stone that held the gold plates once”.

                Everybody’s happy and it takes no taxpayer dollars.Report

        • Avatar Jaybird says:

          There’s an old Snickers commercial that has a coach yelling at his team that “This year we gotta be a little more ‘politically correct’ with the team prayer.”

          There’s a Catholic priest, followed by a Jewish rabbi, followed by a Native American Shaman, and you see a football player in the front row narrow his eyes a little and look all the way down the line of more than a dozen “holy” folk preparing to give their various blessings before the game. “Not going anywhere for a while?”

          This strikes me as far, far, far more interesting and wonderful than any attitude that says that we shouldn’t have people give speeches before a football game.Report

        • Avatar Pat Cahalan says:

          > Saying, “Here is a tax break and a sweetheart land
          > deal to help get your church started” is quite another.

          I dunno, dude, as a purely economic decision local governments do this sort of thing *all the time*. Just replace “church” with “organization” or “business”. Tax break for your mega-church because it’s putting the local construction business back to work and giving the coffee shop and bakery a nice little influx of business on Sunday morning (after services, of course). Plus some extra in the city coffers for the parking meters.

          > There is a difference between allowing and enabling.

          Sure. There’s also a difference between enabling and establishing. I know families who enable codependent alcoholics, but they certainly don’t establish ’em.

          One can argue that this is a smelly stinky relationship that both parties ought to be ethically inclined to avoid for a whole host of reasons, but that doesn’t make ’em illegal let alone unConstitutional.

          “In God We Trust” on the money seems right out, though. Mandated pledges of allegiance in the public schools when you have “one nation, under God” in there seems right out, too.Report

      • Avatar Burt Likko says:

        An idol in a public place seems less objectionable when it’s to a god that almost no one believes in anymore, doesn’t it? It’s hard to imagine anyone offering a serious objection to a statue at a courthouse depicting a togate and blindfolded woman holding a sword and scales — but that is a statue of a god that historically, people sincerely worshiped.Report

        • Avatar BlaiseP says:

          Well, there’s an old Japanese saying about the great Buddha at Todai-ji: just you wait until he stands up, he’d be taller than the Statue of Liberty. Sure, the statue of Justice in front of the courthouse is Dike/Themis, but men worship at many altars, especially the altar of money, though they do not believe in the gods.

          Money is a belief system. Banking is a belief system, and many are the kooks who don’t believe in either. Now I would expect every sane man (even most of the insane) to believe in money and credit cards. But it’s the power we believe in, that’s worship, Burt. It’s putting faith and reliance on a system we don’t directly perceive and the people at the Federal Reserve and the sharp people manning the currency arbitrage desks and the regulators who shut down insolvent banks. As with religion, our belief in money is regulated by actual people.

          Maybe I’m the kook. Seems to me the atheists aren’t concerned enough about the power still inherent in these old belief structures. State and Religion have an unseemly propensity to cuddle up to each other, it’s not just Religion with unhealthy desires here. Once the State can climb over the wall of the Separation Clause, it can control what Religion actually does. This was a nation very largely founded by kooks, fleeing religious persecution. We shut down those kooks at our peril. The current divisions of Church and State were set in place by people who saw the persecutions inflicted on the Presbyterians by the Church of England. If they were theists, especially Jefferson, it’s because they wanted nothing to do with these kooks, preferring to worship in a temple not made with hands.Report

          • Avatar Jaybird says:

            When you say “religion”, I hear “culture”.

            Then again, I don’t believe in god(s).Report

            • Avatar BlaiseP says:

              Exactly. It little matters if you believe in God, I strongly encourage everyone to seek God in their own hearts, for you will not find God via second-hand accounts, you’re just waiting for Godot. Until then, don’t believe: you don’t have anything or anyone to believe in, it’s the only honest position to have under those circumstances.

              You should be worried about this “culture” business, for it’s the agents of culture which put all those atheists and freethinkers of yore in jail and burned their books. Though they act in the names of the gods, it doesn’t matter if you believe or not: they will put physical hands upon you if you do not pay your taxes and drag you before the tax court and punish you in an all-too-believable manner.Report

              • Avatar Jaybird says:

                For the most part, I am worried about this “culture” business and I do what I can to nudge it in the direction I think best for everyone by hammering on such things as “Freedom of Speech” and “Freedom of Conscience” even at the cost of putting up with offensive things.

                If today we can’t burn Korans, maybe tomorrow we won’t be able to burn flags. God only knows what we won’t be able to burn the day after that.Report

              • Avatar BlaiseP says:

                Straw men?Report

              • Avatar Jaybird says:

                Hey, I pay my taxes and meet all of my positive obligations to society as far as I can tell what they are.

                I do what I can to make sure that, in the meantime, we allow dissent outside of “Free Speech Zones”.Report

              • Avatar BlaiseP says:

                Well, y’know, dissent is dangerous, Jaybird. Heaven knows what people are likely to be thinking inside those atheistic, unpatriotic heads of theirs. So let’s confine dissent, like smoking, to Thinking Zones, so we can identify ’em and keep an eye on ’em. Safety first, donchaknow.Report

    • Avatar Jason Kuznicki says:

      I have not read the decision or even followed the case that closely. But Ilya Shapiro seems to have a reasonable take.Report

  6. Is it possible for Congress to change standing rules? I would guess that a “case or controversy” is or is not a “case or controversy” regardless of what a statute says, but is a legislative change in principle (if not politically) doable?Report

    • Avatar Burt Likko says:

      To some extent, yes; Congress could expand the definition of people who are entitled to seek declaratory relief against the government by amending certain statutes. But the concept of “standing” and whether a particular lawsuits presents a live “case or controversy” is ultimately an interpretation of Article III and at the end of the day, it is for the courts to decide that issue.Report

  7. Avatar DensityDuck says:

    “Parents of children who attend private schools receive a tax credit on their state income taxes for money donated to scholarship programs for private school tuition. Most of that money winds up in practice going to pay the tuition of religious schools and reading between the lines, specifically to pay the tuition of the children of the donors.”

    Doesn’t this mean that parents of children who attend private religious schools shouldn’t receive any tax credits at all? After all, that tax-break money increases the overall funds available to those parents, and those funds allow them to send their children to the private religious school.Report

    • Avatar Burt Likko says:

      Yes, that’s exactly right. One ought to at least be able to conceive of a non-frivolous equal protection argument based on those facts too.

      But the more powerful reason tax credits should not be given to indirectly support private schools is because the schools which benefit from that indirect support engage in religious indoctrination and even legally engage in religious discrimination if they wish to do so. The government must tolerate (or to use another phrase, “accomodate”) religious indoctrination of children and thus must allow and fairly accredit private schools; however, it ought not to support it by, inter alia, providing tuition-paying parents with tax breaks to subsidize that religious indoctrination.Report

      • Avatar Robert Cheeks says:

        Is it lawful, then, for parents who chose to send their children to religious schools to be taxed to support public schools?Report

        • Avatar Burt Likko says:

          Yes. It’s also lawful to tax everyone to support public parks, even though some people don’t use those parks personally.Report

          • Avatar Robert Cheeks says:

            Do you think that that’s a judicious use/application of state power?
            Also, I’m not sure I’m down with your analogy in that people can choose to use the park or not, but they are required by the state to educate their children under penalty of fine or imprisonment.
            Another point, while I’m pounding this drum, is that the state may decide to teach a class in proper hetero/homosexual technique to middle schoolers which may excite certain parents and, as a matter of conscience, require them to remove their children from public schools and place them in ‘religious’ schools, e.g. the state has caused the parent to seek other avenues of education.Report

            • Avatar BlaiseP says:

              But religious persons routinely home-school their children. Burt’s argument can be extended a whole lot farther: I don’t think even you would say public schools are not a public good, any more than you would say we shouldn’t pave the roads you don’t drive.

              Now here’s the case you should be examining: Let’s say a school arose which taught sedition against the USA, some violent madrasa such as we see in Pakistan, funded by the Saudis, let’s say. Do we have the right, as a society, to shut down that school?Report

              • Avatar Robert Cheeks says:

                Methinks, Bp, your question raises yet another point. In answer to yours the gummint should only shut down the school if it is representative of a religion/ideology that advocates the violent overthrow thereof and teaches/preaches such.
                My question, however, is rather fundamental, and not intended as a ‘gotcha’ conservative effort, in that the taxpayer rejects the public school system predicated on a moral question and spends his own hard-earned on a private edumacation of some sort. So, I’m curious as to what yous guys think; should he be obligated by the power of the state to pay for, what is essentially and in his opinion, an immoral education?Report

              • Avatar Pat Cahalan says:

                I required by the state to pay for what is essentially in my opinion a host of immoral things, Bob.

                If you get to pick and choose from the government like a buffet, that’s okay with me, but it will drastically change how the country works.Report

              • Avatar Robert Cheeks says:

                Are you saying that we should accede to the state even when they are requiring the citizen/taxpayer to participate in some immoral act? Then the question becomes, is there some imaginary line that is the result of an heniously immoral act of the state that determines/initiates resistance to the state?Report

              • Avatar Pat Cahalan says:

                > The taxpayer rejects the public
                > school system predicated on a
                > moral question

                I find this hypothetical somewhat incredulous, by the way. One can reject certain circumstances within the context of the public school system on moral grounds, but you can make the same statement about any organized system of education.

                I might agree with Catholic school teaching more than public school teaching, but if a Catholic school teacher abuses my child, I’m not going to say that I object to the entire school system on moral grounds, am I?

                But that’s an aside. Here’s the interesting question:

                > Are you saying that we should accede
                > to the state even when they are
                > requiring the citizen/taxpayer to
                > participate in some immoral act?

                That is upon thine own head, and one must do as their conscience dictates.

                If someone refuses to pay federal income tax because they refuse to subsidize the military on the grounds that there is no defensible war, morally, that is a moral decision to be made by the individual. I’d applaud them for it. And I might even contribute to their defense fund. But they *are* going to jail, make no mistake. And they are likely to stay there.

                I certainly wouldn’t make allowances for people to not pay federal taxes in general, even if I believe that federal tax money is occasionally used immorally.

                Now, I will certainly agree that your concept of immorality can be a legitimate reason for you to work within the political system to achieve change. But that motivation doesn’t give you carte blanche to use whatever tactics you prefer, without consequences, either.Report

              • Avatar Robert Cheeks says:

                Again, back to my point re: public education. The public school is teaching something that is evil. The parent removes said child and places him/her elsewhere. Given the parent has relieved the public school system the burden of educating that child, why should the parent be required to continue to pay taxes to the public school system when he is paying to educate his child privately?Report

              • Avatar Jaybird says:

                We make hippies pay for tanks, libertarians pay for the drug war, and people with a life expectancy of 65 pay for social security for people with a life expectancy of 85.

                We, as a society, have agreed that this is social justice.Report

              • Avatar Robert Cheeks says:

                JB, yes you’re right. However, by allowing the money (state tax dollars) to follow the student (parent/student choice act-P/SC Act of 2011) we are getting rid of one (possible) unjust act of the state. There may be other ways to right the wrongs of gummint and it would be fun to go over them in some future blog, but in terms of the state requiring the chilluns to participate in immoral acts, that can be alleviated be enacting the P/SC Act of 2011, which is truly “all about the children”.

                Pat, your Catholic school analogy doesn’t work for a myriad of reasons.Report

              • Avatar Pat Cahalan says:

                Fair enough.

                I still don’t buy the premise that the public education system is *evil*. But okay, somebody might think so.

                Opting out of a public service involves a couple of serious problems, though, Bob. You can’t get rid of the sunk cost.

                We already built the school building. It’s depreciated over 40 years. If one student out of 3000 opts-out of the system, we can’t get back the (1/3000 * remaining years in school) back, per student. There are tons of other costs that aren’t unit-based costs.

                How do you propose we correct this part of the problem? There’s really not much of a way to do it without getting rid of public education entirely. If that’s what you want to do, just say so and we can discuss that.

                If that’s *not* what you want to do, tell me how I let people opt-out of the public school system while recouping the funds that have already been spent in anticipation of them being part of the public school system.Report

              • @Pat Cahalan:

                I don’t see why you couldn’t adjust for those overhead costs with a mathematical formula of some sort. Indeed, IIRC most voucher programs of which I’m aware are for some percentage less than the child’s pro rata portion of the education budget.Report

              • Avatar Pat Cahalan says:

                Well, you probably can. Indeed, since you’re talking about a tax credit, typically you’re still paying some taxes towards education, really.

                But that doesn’t answer Bob’s quandary.Report

              • Avatar BlaiseP says:

                I’m not sure we can get away with closing down that school here in the USA, unless some act of terrorism actually went down. Look at all the other kooks protected by First Amendment, like, say, Glenn Beck.Report

              • Avatar Robert Cheeks says:

                …or some leftist, but I can’t come up with any names..sorry!
                Re: the edumacation question that people either wanna discuss in terms of apples and oranges or some derailment of the question, how about, or what would be wrong, with the education dollars following the student? I mean, that settles the question of the public school system leaning toward the commie-left and gives the parent, parental control over little Jimmy’s edumacation, which is where it belongs…right?Report

            • Avatar Chris says:

              Since everyone (potentially) benefits both from parks and from a more educated populous, yes, I do think it’s “a judicious use/application of state power.”Report

            • Avatar Burt Likko says:

              Bob, I think you’re confusing “within Constitutional boundaries” with “a good idea.” It may not be wise that the government do certain things, but it nevertheless possesses the lawful power to do them. I think we can agree that it is not typically appropriate for a court to decide whether a particular law is wise, but I do think it is the appropriate job of a court to decide if a law is within the boundaries of the Constitution.

              Now, if you’re asking me, do I think public parks and public schools are good ideas, yes, I think that both are good ideas.Report

              • Avatar Robert Cheeks says:

                Burt, re: “public” schools, I laid out a specific question. I don’t think it was a difficult question, and I wasn’t trying to trick anyone.
                Now, I think public education is a good idea, assuming there’s no public unions involved and there is, to some extent, competition.
                I’m thinking the words ‘wise’ and gummint shouldn’t appear in the same sentence.
                My inquiry was concerned with gummint requiring the citizen/taxpayers to participate in moral acts. I don’t think that’s a good thing.Report

              • Avatar Robert Cheeks says:

                …er, ‘immoral acts!’

              • Avatar Burt Likko says:

                Well, I don’t think parents have the final say on matters of what goes in the curriculum, if that’s what you’re asking. Let’s say we have parents who are morally outraged at the content of the curriculum, and can’t afford private school.

                They’ll just have to teach their children right from wrong themselves, which is something I think they ought to be doing anyway. And they can elect members of the school board who will change the curriculum; I don’t discount the availability of a political remedy.

                The question here is whether they can also use the courts to sue the school for teaching their kids about sex, evolution, etc. That’s well-worn territory; they have standing to sue, but they’re going to lose on the merits.Report

              • Avatar Robert Cheeks says:

                Burt, what I’m saying is if parents have a problem with the/any public school, say for moral reasons, and they send little Sandy to a parochial school, wouldn’t it be ‘just’ if the state funds allocated to Sandy, follow her this imaginary parochial school?
                Or am I outta line?
                Has there been any case law re: this matter of state education money follow the child?Report

              • Avatar Burt Likko says:

                As to the last question, you’re getting beyond my sphere of knowledge.

                As to the first question, sounds like what you’re arguing for is a voucher system. I don’t think you’re out of line there. I don’t like the idea of vouchers myself, but I can see the appeal.

                Sending your kids to a private school is a luxury; if you can’t afford that luxury, society does not have a duty to provide that luxury for you. (Yes, I know that once upon a time, educating your children at all was considered a luxury and a privilege for the economic elite, but we don’t live in that kind of a world anymore.) You should not get a tax credit for consuming a luxury, whether that luxury be a private school, a yacht, a bowl of caviar, or an Armani suit.Report

              • Avatar Pat Cahalan says:

                > My inquiry was concerned with gummint
                > requiring the citizen/taxpayers to participate
                > in immoral acts. I don’t think that’s a good
                > thing.

                I don’t really think it’s a good thing, either, Bob, but to some extent it’s inevitable. The question of relative or absolute morality aside, it’s just a fact that we don’t, per se, enforce morality in our society.

                We enforce the law. We like the law to be aligned somewhat with morality, but there’s plenty of cases where it’s not going to be. I think what Westboro Baptist Church does is deeply offensive and immoral. I can’t see my way around preventing them from doing what they do *via the mechanism of the state* without a lot of consequences that I don’t like.

                I’m willing to entertain the notion of “conscientious objector” for certain types of government services, but that can’t get you off the hook for paying for the service. If it does, I want off the military bandwagon right now. Gimme back my cheddar.Report

      • Avatar DensityDuck says:

        “The government must tolerate (or to use another phrase, “accomodate”) religious indoctrination of children and thus must allow and fairly accredit private schools; however, it ought not to support it by, inter alia, providing tuition-paying parents with tax breaks to subsidize that religious indoctrination.”

        But–I want to make this clear–you believe this means that a parent whose child attends a religious private school should not receive any kind of tax break for ANYTHING? No deductions from income taxes for mortgage interest or medical care or charitable giving? No tax credits for buying electric vehicles or using mass transit? No ability to make pre-tax contributions to retirement plans?

        Indeed, what about people who donate to church? Should church donations not be deductible? Okay, I could see that, but you could make the argument that allowing other deductions or credits gives that person more disposable income which they turn around and give to a church, so it’s “indirectly supporting religion”.Report

        • Avatar Pat Cahalan says:

          > Should church donations not be deductible?

          See the accounting below.

          They could be, they could not be. Largely I believe this is within an acceptable amount of abuse (most established religions actually spend a decent chunk of their change on their community, thus reducing the government’s burden to do those things). There are cases of megachurch abuse, certainly.

          In the main, I think it’s problematic but not necessarily a deal breaker.Report

        • Avatar Jaybird says:

          But–I want to make this clear–you believe this means that a parent whose child attends a religious private school should not receive any kind of tax break for ANYTHING? No deductions from income taxes for mortgage interest or medical care or charitable giving? No tax credits for buying electric vehicles or using mass transit? No ability to make pre-tax contributions to retirement plans?

          If this is the view (and I’m not saying that it is), it’s got plenty of analogues all over.

          There’s a philosophy that says that people on welfare shouldn’t have certain luxury items because if they can afford X, they shouldn’t be taking money from the public because public dollars shouldn’t be subsidizing X (money being fungible).Report

        • Avatar Burt Likko says:

          Maybe I’m not sure what you’re getting at, DD. Sending your kids to private school should not disqualify you from, say, home mortgage interest deductions. The reason is, you qualify for that deduction not because you send your kids to private school, but because you’ve taken out a home loan.

          Tax incentives are built in to the law in no small part to encourage people to do (or not do) particular things. And people respond to those incentives; witness, for instance, contributions to tax-deferred retirement plans. A tax incentive to send your kid to religious school will result in more kids being sent to religious schools as a result of the government offering this incentive — and thus, that tax incentive embodies a government preference that kids to receive religious instruction. That’s why I think the tax incentive here is an Establishment.

          I realize that in theory, the deduction here was available to parents who used a pass-through scholarship entity to pay for a secular private school would also get that deduction. But in practice, functionally all of the tax credits awarded here were awarded for tuition to religious schools.

          Obviously you can argue that any reduction of any tax burden in any form frees up private money to go elsewhere and some of that money will go to religious causes, but at some point the relationship between religious spending and tax breaks will become too indirect to trace fairly or reasonably.

          And I had my way, donations to churches would be deductible in proportion to the amount of money spent by the church on charitable activities, which would be traceable through those churches’ Form 990 disclosures which in turn would be audited with the same level of scrutiny as is given to individual taxpayers. If a church spends, say, 30% of its overall income on payroll, 30% on physical plant maintenance and paying its own mortgage, 20% on evangelism and religious education, and 20% on charitable activities dispensed to the public in a manner that is unaccompanied by evangelism, then 20% of your donation to that church ought to be deductible because twenty cents of every dollar you spend there goes to charitable work. I do not see charitable work accompanied by evangelism as primarily motivated by a desire to do charity, but rather by a desire to evangelize. (“Come here and eat this free food while we tell you a story about a man from Galilee!” The point of doing something like that is not to feed the poor, but rather to preach to them.) Of course, I don’t get to have my way on that point. The present regime of making religious donations 100% deductible is too politically popular for my preferred policy to have a realistic chance at becoming law.Report

          • Avatar DensityDuck says:

            “Maybe I’m not sure what you’re getting at, DD.”

            Actually, you completely understand my argument and disagree with me. (which is okay, I actually like not having to repeatedly explain myself.)

            “Obviously you can argue that any reduction of any tax burden in any form frees up private money to go elsewhere and some of that money will go to religious causes…”

            Which is what I’m claiming; and you say that…”

            “…at some point the relationship between religious spending and tax breaks will become too indirect to trace fairly or reasonably.”

            And I think that that defining that point depends on a judgement call, and winds up being more overtly an Establishment violation than just giving people vouchers.

            If the government starts putting conditions and restrictions and limitations on tax credits or benefits vis-a-vis religious donations, then is not that an example of the Government making laws respecting religion or preventing the free exercise thereof?


            As a side question, if your argument is that money spent to support religious activity shouldn’t be deductible, then shouldn’t homeschoolers who attend church not be permitted to deduct mortgage interest?Report

  8. Avatar Jason Kuznicki says:

    As Ilya Shapiro (linked above, and here) suggests, to accept the theory that public money was ever involved in Winn might entail, first off, accepting the claim that all income belongs initially to the government, and that only after its taxation does the money begin to belong to the income’s earner.

    This is so radical an assertion that it’s a pity the case was decided on standing. I’d love to see the liberal justices try to sneak that one by, which I doubt they could have done.Report

    • Avatar rj says:

      Under that reasoning, how does any tax not “claim that all income belongs initially to the government”? Seems like a backdoor to the radical libertarian idea that all taxation is theft.Report

      • Avatar Jason Kuznicki says:

        There has to be a middle ground somewhere, doesn’t there? Why not just state the obvious: Taxation is a legitimate option, one which, if exercised with due process of law, renders part of a person’s income the property of the government.

        Declining to exercise the option isn’t a grant of government money — not any more than declining to exercise a stock option is a grant of cash to myself.Report

        • Avatar Burt Likko says:

          But don’t taxes have to be imposed on similarly-situated people in an equal and neutral fashion? Let’s assume a flat income tax for ease of argument, although of course IRL income taxes are progressive as marginal income increases.

          Given a generally-applicable flat tax of 20% of all income, is it within the range of Constitutionally-permissible ways the government can levy that tax for the government to say “Protestants who tithe to support their churches get a dollar-for-dollar tax income tax credit on their tithes?” Is it made any better if it’s expanded beyond Protestants to all Christians, or all believers generally? What about those of us who don’t believe at all — we have to pay more taxes than believers who can tithe instead; is the law saved if a similar tax credit for some secular charity is included as well?Report

          • Avatar Jason Kuznicki says:

            But don’t taxes have to be imposed on similarly-situated people in an equal and neutral fashion?

            If only! This is a principle I support in a general sense, but I can’t honestly say I see it much validated in our current tax law.Report

          • Avatar NoPublic says:

            Couldn’t have said it better myself.Report

        • Avatar rj says:

          Good point.

          There are a lot of things that government declines to consider as taxable income, starting with your first $X of it. However, Shapiro makes a much, much broader claim that is a direct challenge to all taxation, which reaches well beyond the decision to not tax some of it.

          The inverse of “all income belongs initially to the government” is that it belongs to individuals in the same way that, for example, land might.* Under current rules, we can tax that property, but the government can’t just take all or part of it without a good reason (yes, Kelo, blah blah..) and without compensation. So if income is the same as other types of propetry, it can’t be taken without compensation, something that I’m sure Shapiro doesn’t take to include the generalized benefits of having government services and protection.

          * Arguining against something doesn’t mean you support the inverse, but I can’t see a good middle ground here. Are we expected to believe that there is some arbitrary percentage of income that can’t be taxed because it doesn’t “belong” to government? What would that percentage be?Report

          • Avatar rj says:

            ** I was writing in response to Jason – Burt finished his post while I was writing mine.Report

            • Avatar Jason Kuznicki says:

              So if income is the same as other types of property, it can’t be taken without compensation, something that I’m sure Shapiro doesn’t take to include the generalized benefits of having government services and protection.

              I suspect that Shapiro would take roughly the following view, which is also my own:

              Taxation is only legitimated by the Constitution. It’s not legitimated by a theory of prior government ownership, or by the social good it can do, or by some concept of greater desert. The one thing that legitimates taxation is our initial and continued consent to the Constitution. We have given the government permission to tax, in certain ways, according to certain procedures, and within limits. It’s not out of the question that we could revoke (or expand) those procedures. But it’s our power as a sovereign people that makes it so, through our governing instrument alone.

              We can distinguish the power to tax from the power to take land by… well… actually we just up and did it, as sovereigns. There’s no compensation clause to the taxing power, but there is for eminent domain. That’s because the American people wrote it that way.Report

              • Avatar rj says:

                Yes, taxation is legitimate because we have agreed to be governed by a system that allows for taxation. That’s the difference between getting taxed and getting hit up for protection money by your local thug.

                So if taxation is legitimate, does Shapiro’s distinction between tax expenditures and expenditures from the treasury (which he makes in his Cato post) mean anything beyond populist “it’s your money” pandering?

                With tax expenditures, you start with a general rule (you are taxed at X%, just like everyone else), and then have an exception carved out for spending on a favored cause. Does that exception mean the favored taxpayer somehow has “more” property rights to that untaxed money than the non-favored taxpayer? Does the poor man taxed at a lower rate have more property rights than the rich man taxed at a higher rate, or have we, through the lawmaking process, decided to use our taxation powers differently for people in different situations? Where do refundable tax credits fit in?

                The distinction between tax expenditures and regular expenditures is a convenient fiction, used mostly to allow Republicans to make policy while maintaining fealty to Grover Norquist.Report

              • Avatar Jason Kuznicki says:

                So if taxation is legitimate, does Shapiro’s distinction between tax expenditures and expenditures from the treasury (which he makes in his Cato post) mean anything beyond populist “it’s your money” pandering?

                Well, it does mean something.

                Under the theory that I’d thought we both just agreed to, it is legitimately your money until it’s legitimately taken from you. There’s a distinct point where the title to it changes. The power to set that point was conferred properly, and it is used properly only within certain limits, again given by law.

                Any other theory will depend implicitly on one of the two approaches we both agree are impermissible — namely either “taxation is theft,” or “all income belongs first to the state.” If we agree to take these off the table (which I thought we had), then we have to stipulate a point of legitimate title transfer, from the earner to the state. There’s just logically no other way to do it.Report

              • Avatar NoPublic says:

                Yes, but you conveniently avoid the larger point here.

                If I can write a law exempting a class of persons (distinct from a random set of persons by virtue of their race, creed, etc.) from taxation entirely (which your approach would certainly allow), how is this functionally different from taxing only non-members of the class to begin with (Which should clearly be a violation of someone’s property rights if we are to apply them equally to all citizens)? This way lies Jim Crow and all other manner of thorny thickets.Report

              • Avatar Jason Kuznicki says:

                I would certainly not allow exempting a class of persons from taxation! My preferred approach is to make taxation more general, to reduce tax credits and exemptions, and to simplify the tax code more generally.

                To the extent that there are thickets here — and there are — they are not of my doing.Report

              • Avatar rj says:

                So why does it matter when the title changes if we agree that title can change by the decree of a legitimate government? In other words, how is this more than a rhetorical floruish?

                Frothingham makes its distinction based on what the court considers a particularized injury, not whose money is whose. Yet there are plenty of situations where you are not the only person to be injured but you can still go to court.

                It was prudential – so as not to jam up the courts. In Flast, the court recognized that certain unconstitutional government actions could never be otherwise challenged under that standard and opened the door a little bit.

                Completely within the bounds of the Constitution and of logic, the court could decide tomorrow that the court system could handle the volume of taxpayer challenges for any constitutional violation and allow taxpayer standing.

                Therefore, in this context, when the right to your money changes hands means nothing. I’m having a hard time thinking of a situation where it does.Report

              • Avatar Jason Kuznicki says:

                That the courts don’t wish to look out at such appalling vistas — well, that doesn’t make them any less appalling. The courts did the very same in the Slaughterhouse Cases, denying black civil rights for nearly a century. Perhaps they should choose otherwise here.Report

              • Avatar rj says:

                Care to explain?Report

              • Avatar Jason Kuznicki says:

                I mean only that whenever a court looks around and says “deciding X in this case means a lot more work for us,” that consideration should receive no weight whatsoever when compared to the question of whether X is doing justice.Report

              • Avatar rj says:

                It’s unfair in some cases and keeps justices from fleshing out their positions on important issues, but standing, ripeness and mootness allow the system to function.

                If any crank who thought some piece of government spending was unfair to them as a taxpayer, there would be chaos. The court drew a line here. I disagree with the underlying law and where the line was placed, but they clearly had to place the line somewhere before they could touch the more interesting issue of whether a tax expenditure should be treated differently than a treasury expenditure.

                But what does that say about whether Shapiro’s statement is a rhetorical flourish or actually means something?

                Shapiro says the court reached the right decision, which he reaches based on his theory about taxes, though the court makes the distinction between taxes and spending for standing reasons, which are prudential. Even if this was a government grant out of the treasury, the plaintiff would still need standing.Report

    • Avatar Pat Cahalan says:

      “accepting the claim that all income belongs initially to the government”

      I think this is overly reductionist. I certainly don’t agree that all income belongs initially to the government. However, the tax rate (being supposedly equalized) is money that is owed the government. A tax *credit* (IMO) isn’t a reduction in your taxes. It’s an acknowledgment that you’ve executed part of your tax burden via some other acceptable method.

      Essentially, the government is saying, “We collect X from everybody. If you donate or pay Y to get service A, that reduces our need to do service B, so we will acknowledge that you have lessened your debt load by reducing X by some factor of Y.”

      Assuming this is all done legitimately, that’s all well and good. And since you’re generally not having your taxes reduced by Y, but by some *factor* of Y, the fact that Y went to B and B isn’t exactly A isn’t necessarily bad.

      Let’s say you pay $10K to go to a private school. The government isn’t letting you take $10,000 of your tax owed, but instead typically a deduction in your effective income, which translates to a hell of a lot less than $10K, probably about, what, $2500 depending upon your tax bracket.

      The only way this would be an establishment of religion would be if the school just taught you all religion and didn’t teach your student the things that they would learn in school anyway. The $2500 you get from your tax credit is therefore subsidizing your religion. That’s not kosher.

      In practice, though, that $2500 is less than the government would be paying for your student to get a *public* education, so everybody wins (well, except the taxpayer, but this is after all their choice).

      Since I haven’t read the actual law, and don’t know what the terms of the tax credit are, I can’t say that I like or don’t like this particular law. But in principle, I can see how it would not qualify as establishment, and I certainly think it’s unlikely to be establishment of religion in this case.

      Still don’t like the “standing” issue, though. Hear the case on its merits and make a decision.Report

  9. Avatar Tim Kowal says:

    I might be too late to the party, but this is the question I’d like to see taken up: If Flast represents a good policy that should be upheld, then doesn’t that mean Frothingham represents a bad policy to a much greater degree and should be struck down? Similarly, should we get rid of the Chevron doctrine that gives so much deference to agencies and thus makes their actions, to a certain degree, unreviewable by the courts? Or is the idea that, if you are a liberal, you are meant to like Flast because it’s a religion-killer, and that if you’re a conservative, you are meant to dislike Frothingham because it’s a big-government-enabler?Report