Ariz. Christian Sch. Tuition Org. v. Winn

Decision Date04 April 2011
Docket NumberNos. 09–987,09–991.,s. 09–987
Parties ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION, Petitioner, v. Kathleen M. WINN et al. Gale Garriott, Director, Arizona Department of Revenue, Petitioner, v. Kathleen M. Winn et al.
CourtU.S. Supreme Court

563 U.S. 125
131 S.Ct.
179 L.Ed.2d 523

Kathleen M. WINN et al.

Gale Garriott, Director, Arizona Department of Revenue, Petitioner,
Kathleen M. Winn et al.

Nos. 09–987

Supreme Court of the United States

Argued Nov. 3, 2010.
Decided April 4, 2011.

Neal K. Katyal, Acting Solicitor General, for United States as amicus curiae, by special leave of the Court, supporting the petitioners.

Paula S. Bickett, for petitioners.

Paul Bender, Phoenix, AZ, for respondents.

Steven R. Shapiro, Daniel Mach, American Civil Liberties Union Foundation, New York, NY, Daniel Pochoda, American Civil Liberties Union Foundation of Arizona, Phoenix, AZ, Paul Bender, Counsel of Record, Phoenix, AZ, Isabel M. Humphrey, Hunter, Humphrey & Yavitz, PLC, Phoenix, AZ, for respondents.

Terry Goddard, Attorney General of Arizona, Mary O'Grady, Solicitor General, Paula S. Bickett, Counsel of Record, Chief Counsel, Civil Appeals, Kathleen P. Sweeney, Barbara A. Bailey, Assistant Attorneys General, Phoenix, AZ, for petitioner Gale Garriott.

David A. Cortman, Counsel of Record, Alliance Defense Fund, Lawrenceville, GA, Benjamin W. Bull, Gary S. McCaleb, Jordan W. Lorence, Jeremy D. Tedesco, Alliance Defense Fund, Scottsdale, AZ, for petitioner ACSTO.

Institute for Justice, Timothy D. Keller, Counsel of Record, Paul V. Avelar, Tempe, AZ, Institute for Justice, William H. Mellor, Richard D. Komer, Clark M. Neily III, Arlington, VA, for respondents in Support of Petitioners Glenn Dennard, Luis Moscoso, and Arizona School Choice Trust.

Justice KENNEDY delivered the opinion of the Court.

563 U.S. 129

Arizona provides tax credits for contributions to school tuition organizations, or STOs. STOs use these contributions to provide scholarships to students attending private schools, many of which are religious. Respondents are a group of Arizona taxpayers who challenge the STO tax credit as a violation of Establishment Clause principles under the First and Fourteenth Amendments. After the Arizona Supreme Court rejected a similar Establishment Clause claim on the merits, respondents sought intervention from the Federal Judiciary.

To obtain a determination on the merits in federal court, parties seeking relief must show that they have standing under Article III of the Constitution. Standing in Establishment Clause cases may be shown in various ways. Some plaintiffs may demonstrate standing based on the direct harm of what is claimed to be an establishment of religion,

563 U.S. 130

such as a mandatory prayer in a public school classroom. See School Dist. of Abington Township v. Schempp, 374 U.S. 203, 224, n. 9, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). Other plaintiffs may demonstrate standing on the ground that they have incurred a cost or been denied a benefit on account of their religion. Those costs and benefits can result from alleged discrimination in the tax code, such as when the availability of a tax exemption is conditioned on religious affiliation. See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 8, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989) (plurality opinion).

For their part, respondents contend that they have standing to challenge Arizona's STO tax credit for one and only one reason: because they are Arizona taxpayers. But the mere fact that a plaintiff is a taxpayer is not generally deemed sufficient to establish standing in federal court. To overcome that rule, respondents must rely on an exception created in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). For the reasons discussed below, respondents cannot take advantage of Flast 's narrow exception to the general rule against taxpayer standing. As a consequence, respondents lacked standing to commence this action, and their suit must be dismissed for want of jurisdiction.


Respondents challenged § 43–1089, a provision of the Arizona Tax Code. See 1997 Ariz. Sess. Laws § 43 –1087, codified, as amended, Ariz.Rev.Stat. Ann. § 43–1089 (West Supp.2010). Section 43–1089 allows Arizona taxpayers to obtain dollar-for-dollar tax credits of up to $500 per person and $1,000 per married couple for contributions to STOs. § 43–1089(A). If the credit exceeds an individual's tax liability, the credit's unused portion can be carried forward up to five years. § 43–1089(D). Under a version of § 43–1089 in effect during the pendency of this lawsuit, a charitable organization could be deemed an STO only upon certain conditions. See § 43–1089 (West 2006). The organization was required to be exempt from federal taxation under

563 U.S. 131

§ 501(c)(3) of the Internal Revenue Code of 1986. § 43–1089(G)(3) (West Supp.2005). It could not limit its scholarships to students attending only one school. Ibid. And it had to allocate "at least ninety per cent of its annual revenue for educational scholarships or tuition grants" to children attending qualified schools. Ibid . A "qualified school," in turn,

131 S.Ct. 1441

was defined in part as a private school in Arizona that did not discriminate on the basis of race, color, handicap, familial status, or national origin. § 43–1089(G)(2).

In an earlier lawsuit filed in state court, Arizona taxpayers challenged § 43–1089, invoking both the United States Constitution and the Arizona Constitution. The Arizona Supreme Court rejected the taxpayers' claims on the merits. Kotterman v. Killian, 193 Ariz. 273, 972 P.2d 606 (1999). This Court denied certiorari. Rhodes v. Killian, 528 U.S. 810, 120 S.Ct. 42, 145 L.Ed.2d 38 (1999) ; Kotterman v. Killian, 528 U.S. 921, 120 S.Ct. 283, 145 L.Ed.2d 237 (1999).

The present action was filed in the United States District Court for the District of Arizona. It named the Director of the Arizona Department of Revenue as defendant. The Arizona taxpayers who brought the suit claimed that § 43–1089 violates the Establishment Clause of the First Amendment, as incorporated against the States by the Fourteenth Amendment. Respondents alleged that § 43–1089 allows STOs "to use State income-tax revenues to pay tuition for students at religious schools," some of which "discriminate on the basis of religion in selecting students." Complaint in No. 00–0287 (D.Ariz.), ¶¶ 29–31, App. to Pet. for Cert. in No. 09–987, pp. 125a–126a. Respondents requested, among other forms of relief, an injunction against the issuance of § 43–1089 tax credits for contributions to religious STOs. The District Court dismissed respondents' suit as jurisdictionally barred by the Tax Injunction Act, 28 U.S.C. § 1341. The Court of Appeals reversed. This Court agreed with the Court of Appeals and affirmed. Hibbs v. Winn, 542 U.S. 88, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004).

563 U.S. 132

On remand, the Arizona Christian School Tuition Organization and other interested parties intervened. The District Court once more dismissed respondents' suit, this time for failure to state a claim. Once again, the Court of Appeals reversed. It held that respondents had standing under Flast v. Cohen,supra. 562 F.3d 1002 (C.A.9 2009). Reaching the merits, the Court of Appeals ruled that respondents had stated a claim that § 43–1089 violated the Establishment Clause of the First Amendment. The full Court of Appeals denied en banc review, with eight judges dissenting. 586 F.3d 649 (C.A.9 2009). This Court granted certiorari. 560 U.S. 924, 130 S.Ct. 3324, 3350, 176 L.Ed.2d 1218 (2010).


The concept and operation of the separation of powers in our National Government have their principal foundation in the first three Articles of the Constitution. Under Article III, the Federal Judiciary is vested with the "Power" to resolve not questions and issues but "Cases" or "Controversies." This language restricts the federal judicial power "to the traditional role of the Anglo–American courts." Summers v. Earth Island Institute, 555 U.S. 488, ––––, 129 S.Ct. 1142, 1148, 173 L.Ed.2d 1 (2009). In the English legal tradition, the need to redress an injury resulting from a specific dispute taught the efficacy of judicial resolution and gave legitimacy to judicial decrees. The importance of resolving specific cases was visible, for example, in the incremental approach of the common law and in equity's consideration of exceptional circumstances. The Framers paid heed to these lessons. See U.S. Const., Art. III, § 2 ("The judicial Power shall extend to all Cases, in Law and Equity ..."). By rules consistent with the longstanding practices of Anglo–American courts a plaintiff who seeks to invoke the federal judicial power must assert more than just the "generalized interest

131 S.Ct. 1442

of all citizens in constitutional governance." Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974).

563 U.S. 133

Continued adherence to the case-or-controversy requirement of Article III maintains the public's confidence in an unelected but restrained Federal Judiciary. If the judicial power were "extended to every question under the...

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