ORTHODOX UNION URGES SUPREME COURT TO UPHOLD AZ. EDUCATION TAX CREDIT PROGRAM; “‘Fundamental Goal’ of the First Amendment is Supporting Private Choice”

Today, the Union of Orthodox Jewish Congregations of America, the nation’s largest Orthodox Jewish umbrella organization, joined with other prominent faith-community representatives in filing a brief with the U.S. Supreme Court in support of the constitutionality of Arizona’s education scholarship tax credit program. The “friend of the court” brief was drafted by two pre-eminent professors of constitutional law – Doug Laycock and Tom Berg – on behalf of the Orthodox Union as well as the U.S. Conference of Catholic Bishops, Christian Legal Society and others.

The case, Arizona Christian School Tuition Organization v. Winn, which will be argued before the Supreme Court in the Fall, involves a state program under which individuals receive a state-income-tax credit for contributing to student tuition organizations (“STOs”) that in turn use the funds to provide scholarships at non-public schools. The program had bi-partisan support when it began in Arizona, but was challenged in the courts by teachers unions and other advocacy groups as unconstitutional because many of the non-public schools to which the scholarship funds flow are religious schools. In 2008, the Arizona Supreme Court ruled the tax credit program unconstitutional and that decision was upheld by the U.S. Court of Appeals for the 9th Circuit.

The friend of the court brief filed on behalf of the Orthodox Union and other groups contends that the lower court rulings are plainly inconsistent with many Supreme Court precedents that have repeatedly held that a government program which yields funds flowing to religious schools or other institutions is constitutional so long as there is “true private choice” built into the program. Here, taxpayers have the private choice whether to donate to an STO and the STO has the private choice as to which schools it will award scholarships to.

The brief underscores that “government respect for private choice in religious matters” – including the choice to send children to a religious school or to donate funds to such a school – “is the most fundamental goal of the Religion Clauses” of the First Amendment.

Nathan Diament, director of public policy for the Orthodox Union, issued the following statement along with the brief’s filing:

The Orthodox Union is pleased to join with our coalition partners in the filing of a legal brief in this important case before the Supreme Court.

In Arizona – and in other states such as Pennsylvania, Florida, Illinois and more – where we have worked with allies to create education tax credit programs such as these, millions of dollars in scholarship funds have been generated and many Jewish schools and students have received such scholarships as a result. We are seeking to initiate similar programs in New Jersey, Maryland and elsewhere. Thus, the Supreme Court’s decision in this case is critical not only for the constitutional issues under consideration, but for its real world impact upon our community. We are optimistic that the Court will remain faithful to its many precedents which support the constitutionality of the Arizona education tax credit program.

The amicus curiae brief can be read here.

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