WASHINGTON — An Obama administration lawyer defended an Arizona program that funds religious schools with state tax credits and urged the Supreme Court on Wednesday to block advocates of church-state separation from suing over such arrangements.
The argument ran into sharp and skeptical questioning from the court’s liberal justices, including President Barack Obama’s two appointees to the high court.
At issue was the constitutionality of a 13-year-old Arizona law that allows its taxpayers to direct a $500 tax credit to private organizations, which, in turn, can fund students to enroll in exclusively religious schools.
A federal appeals court ruled this plan unconstitutional because it uses tax money to support the teaching of religion.
Acting U.S. Solicitor General Neal Katyal joined Arizona’s lawyers in defense of the program, and he urged the justices to rule broadly that no one could even go to court to challenge an alleged subsidy for religion.
Because no citizen could prove that “a cent . . . of his money goes to fund religion,” citizens and taxpayers have no legal right to sue in court to challenge this law, Katyal said.
The First Amendment bars laws that involve “an establishment of religion,” and the court has said that means states may not directly subsidize religious schools. In recent years, the court’s conservative wing has moved toward making it harder for critics to challenge aid-to-religion programs.
The Arizona case has the potential to be a far-reaching one if the court were to agree with Katyal and broadly shield the government from legal claims that it is wrongly diverting public money to aid religion.
Justices Sonia Sotomayor and Elena Kagan — the two Obama appointees — joined Justices Stephen Breyer and Ruth Bader Ginsburg in objecting to Katyal’s argument.
