A surprise move by feds in religious schools case

WASHINGTON - The Obama administration upset liberals as well as the president's two Supreme Court appointees yesterday by arguing that ordinary citizens have no legal right to go to court to challenge the government if it uses tax money to fund religious schools.

The surprising argument came in this term's most important church-state dispute. At issue is the constitutionality of an unusual, 13-year-old Arizona law that allows taxpayers to direct a $500 tax credit to a private organization, which in turn pays tuition for students in private schools. More than 90 percent of the money goes to religious schools, the challengers said.

Acting U.S. Solicitor General Neal Katyal joined Arizona in defense of the law, but went further, arguing that no one had the legal standing to challenge it in court. No citizen could prove that "a cent . . . of his money goes to fund religion," Katyal said.

The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, called the administration's stand "inexplicable."

A federal appeals court had ruled the Arizona plan unconstitutional because it uses tax money to support the teaching of religion.

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.

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 joined Justices Stephen Breyer and Ruth Bader Ginsburg in objecting to Katyal's argument.

Kagan took issue with Katyal's contention that taxpayers cannot sue over public aid to religion, saying it would have knocked out most of the court's landmark decisions involving the separation of church and state.

Paul Bender, an ex-Justice Department lawyer who represented the Arizona taxpayers who sued over the state's law, said the justices should strike down the program. He stressed that the program involves a tax credit, not a charitable deduction. "This is not your money," he said, but money that is owed in taxes.