In Arizona Christian School Tuition Organization v. Winn, school choice opponents represented by the ACLU have challenged an Arizona state tax credit for contributions to entities (school tuition organizations or STOs) that give scholarships to students attending private K-12 schools. They claim that the credit violates the Establishment Clause of the First Amendment to the U.S. Constitution.
As readers of this blog know, one of the primary threats to religious freedom in the U.S. right now is the application of religion and sexual orientation “non-discrimination” rules to religious organizations. Among other things, a number of public universities have withheld recognition from student religious groups that draw their leaders and voting members from among those who share their religious commitments, on the ground that such a practice constitutes “discrimination” on the basis of religion and/or sexual orientation.
At first glance, the claims made in the Winn case seem to have little in common with these distressingly common assaults on associational freedom. However, upon closer inspection, the similarities emerge. In essence, the ACLU and its clients in the Winn case object to the exercise of religious associational freedom.
The ACLU is no longer challenging the tax credit as a whole, or even the inclusion of religious STOs in the program per se. Instead, their beef is with the fact that some STOs have chosen to grant scholarships exclusively to students attending religious schools. Their beef is with the fact that many taxpayers have voluntarily chosen to make donations to such STOs. Their beef is with the fact that many parents choose to send their children to schools that share their religious commitments. In short, they don’t like it when religious people exercise their religious associational freedom, even with their own money. The exercise of religious association freedom is at the heart of the alleged Establishment Clause violation.
Over the last two decades, the Supreme Court has moved away from the “strict separationist” paradigm of church-state relations favored by the ACLU and its allies, gravitating towards a more accommodationist approach that focuses on government neutrality towards religion. Strict separationism was one of the primary weapons the ACLU and its allies used to try to marginalize theologically conservative religion. Just because the Court diminished the efficacy of this weapon hardly meant that the ACLU and its allies gave up. Instead, they turned primarily to non-discrimination rules as the means for marginalizing and punishing religion.
As ACSTO v. Winn demonstrates, even their Establishment Clause cases are now assaults on religious associational freedom. Let us pray that the Court, as it decides this case, does not undermine the freedom of religious people to associate together for shared objectives.
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