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- iHaveNet.com: Politics
by Robyn Blumner
April 18, 2011
James Madison would be rolling over in his grave if he knew that his magnificent thesis on why the government should never be allowed to direct financial support to religious education was twisted to undermine such claims.
In a 5-4 ruling, conservatives on the
I can almost see Justices Antonin Scalia and Clarence Thomas -- who are, at heart, religion-by-the-sword types -- dancing a little jig as they slam shut the courthouse door to church-state litigants, while opening the public coffers to religion.
The only bright spot was a vigorous dissent and history lesson delivered by Justice Elena Kagan, who was joined by her three liberal-wing colleagues. Her discussion of Madison decimated Justice Anthony Kennedy's majority ruling that claimed the founding father's writings support his view: that the Constitution only limits government's direct expenditures for religion, and not the use of targeted tax benefits that accomplish the same goal.
The case of
Since its inception in 1997, more than
What makes James Madison relevant is that Arizona's program is similar to one proposed in 18th century Virginia that Madison -- who is known as the architect of the Constitution's religion clauses -- forcefully denounced. Madison's famous "Memorial and Remonstrance Against Religious Assessments" railed against a proposed tax levy to aid teachers of Christian religion.
Kennedy claims that Madison's Remonstrance was only concerned with government extracting and spending money for religious activities in violation of a taxpayer's conscience. But as Kagan points out, the Virginia proposal looked more like the Arizona model: Taxpayers were to direct their payments to Christian societies of their choosing. Conscientious objectors could opt out of subsidizing religion entirely and have their funds directed to a proposed common school fund for the support of general education.
Even with this accommodation to non-believers and allowing each taxpayer to choose according to his religious conviction, Madison called the scheme "a dangerous abuse of power," and a form of compulsory religious contribution. It never passed.
"(T)he Virginia Assessment is just like the Arizona tax credit," Kagan writes. "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."
But because of this feature, Kagan continues, the court's majority says that taxpayers have no injury and therefore no standing to sue -- even though Madison saw great harm.
The consequence of the court's ruling, as Kagan suggests, is that it gives legislatures a "road map" to insulate the financing of religion from any challenges from the courts. She offers extreme examples, such as a state choosing to reward Jews for their piety to the tune of
Does it really matter how this kind of support is structured? Of course not. But that truism will have to wait for a more intellectually honest court -- one that actually values Madison's vision.
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Supreme Court Decision Defies Madison | Politics
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