Religious Liberty and Freedom of Conscience

Arizona Christian School Tuition Organization v. Winn (2011)

  • May 17 2018


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Whether the Establishment Clause prohibits states from providing tax breaks for donations to charitable organizations if those donations go to Christian schools.


In 1997 Arizona implemented A.R.S. 43-1089, known as the “Tuition Tax Credit,” to encourage indirect donations to private schools and maximize school choice for parents. School Tuition Organizations STO were non-profit organizations that accepted donations and granted scholarships to students attending private schools. The system granted a dollar-for-dollar tax credit up to $500 for donations. Around half of the STOs gave strictly to religious institutions, and religious institutions received 90% of donated funds in 2003.

Arizona taxpayer Kathleen Winn brought suit against Arizona claiming that the Tuition Tax Credit violated the First and 14th Amendments. She argued that the tax credit allowed state revenues to fund religious education, a violation of the Establishment Clause.

The Court Below

The United States District Court for the District of Arizona was the first to hear the case. The court held that the Tuition Tax Credit did not violate the Establishment Clause and dismissed the case. See opinion below:

Winn v. Hibbs, 361 F.Supp.2d 1117 D. Arizona, 2005

Winn appealed to the Ninth Circuit Court of Appeals. The court reversed and remanded the decision from the court below. See opinion below:

Winn v. Arizona Christian School Tuition Organization, 562 F.3d 1002 9th Cir., 2009

The defendants appealed to the Supreme Court, and the Court granted certiorari. The Supreme Court reversed the decision of the Ninth Circuit Court and held that taxpayers lacked a standing to sue. See opinion below:

Arizona Christian School Tuition Organization v. Winn, 131 S.Ct. 1436 2011

Questions before the Court

Docket 09-991:

“Under Arizona Revised Statutes A.R.S. Section 43-1089, individuals who contribute money to school tuition organizations STOs that provide scholarships to students wishing to attend private schools are entitled to an income tax credit.  Respondents alleged that Section 1089's neutral language and the Legislature's stated secular purpose for enacting it were a pretense and that the tuition tax credit program had the primary effect of advancing religion because a majority of taxpayers who contributed to STOs chose to contribute to STOs that awarded scholarships to students attending religious schools. The question presented is the following:

“Did the court of appeals err in holding that if most taxpayers who contribute to STOs contribute to STOs that award scholarships to students attending religious schools, Section 1089 has the purpose and effect of advancing religion in violation of the Establishment Clause even though Section 1089 is a neutral program of private choice on its face and the State does nothing to influence the taxpayers or the STOs' choice?”

Docket 09-987:

“1. Do Respondents lack taxpayer standing because they do not allege, nor can they, that the Arizona Tuition Tax Credit involves the expenditure or appropriation of state funds?

“2. Is the Respondents' alleged injury-which is solely based on the theory that Arizona's tax credit reduces the state's revenue-too speculative to confer taxpayer standing, especially when considering that the credit reduces the state's financial burden for providing public education and is likely the catalyst for new sources of state income?

“3. Given that the Arizona Supreme Court has authoritatively determined, under state law, that the money donated to tuition granting organizations under Arizona's tax credit is private, not state, money, can the Respondents establish taxpayer standing to challenge the decisions of private taxpayers as to where they donate their private money?”

CCJ filed an amicus curiae in support of Arizona Christian School Tuition Organization.


The Founders included the Establishment Clause in the First Amendment to prevent the federal government from establishing a national religion or otherwise coercing religious orthodoxy; it was not included to prohibit public funds from going to religious organizations or private schools. During the ratification debates of 1787-1788, the Anti-Federalists were wary of the proposed constitution in part because they believed it would give the central government the power to impose a national religion on the states, which themselves had widely varying religious provisions in their own constitutions. Further, since the earliest days of the Republic, the national and some state governments directly and indirectly aided religious organizations, and even if one were to admit that the First Amendment prohibits such aid, the 14th Amendment was never intended to apply the Establishment Clause to state governments. Neither the First nor 14th amendments prohibit the states from aiding religion directly or indirectly.

The language used in the Establishment Clause and the records of the debate leading up to its passage suggest that the Founders in no way intended for it to prohibit states from passing laws respecting religion. The Founders viewed religion as essential to the peace and stability of society and thought that religion should be encouraged by the state. In his farewell address, George Washington stated that religion was so important that it must “claim the attention of the civil rulers of a people…” Benjamin Franklin recalled that the First Continental Congress held daily prayers. History proves that the Establishment Clause promotes the acknowledgement of, and even support for, religion in general. The Establishment Clause merely forbids the use of law to coerce religious belief or activity Van Orden v. Perry, 2005.

The Arizona Law is not only free from any element of legal coercion, it is also free from endorsements and preferences in favor of religion. The Ninth Circuit Court ignored the stated history and misinterpreted the Establishment Clause to mean that the government prefers the absence of religion. Under this interpretation, any government program that may benefit religion in some way would violate the Establishment Clause. This is simply incorrect.

The Establishment Clause was intended to prohibit the establishment of a national religion, but it says nothing of prohibiting aid to private schools. Direct or indirect aid is prohibited neither on the national nor on the state level. During his presidency, Thomas Jefferson signed a treaty with the Kaskaskia Indians that included annual payments made by the federal government to support the Roman Catholic priest and church in the territory. Furthermore, in 1875 Maine Representative James Blaine introduced an amendment that would have prohibited the states from making “any law respecting an establishment of religion” and would have prohibited state and federal funds from supporting sectarian schools. Blaine’s amendment failed to pass—signifying that federal and state aid to private institutions remained unoffending to the Constitution. Even so, the Arizona law comes nowhere near overtly funding specifically religious schools via public taxes. Instead, it allows citizens the freedom to direct their charitable contributions by their own volition and thus receive a tax break, a private choice similar to the one upheld in Zelman v. Simmons-Harris 2002, in which parents could direct vouchers to public or private schools of their choice. The Establishment Clause protects the Arizona law rather than opposes it.

Final Outcome

The Supreme Court ruled 5-4 in favor of Arizona Christian School Tuition Organization. The Court held that Winn did not have standing to sue because there was no “injury in fact.” Furthermore, it ruled that tax credits differ from government funds because the government at no point has possession of the funds. The court aligned with CCJ’s stance without going into depth regarding the substance of CCJ’s argument.