Author: deborahlawyer

This past April, the U.S. Supreme Court announced a landmark decision upholding Arizona’s tuition tax credit program.  Opponents claimed it violated the “separation of church and state” because of the benefits that flow to religious schools—through several layers of  PRIVATE choice that allow more families to place their children in private schools.  Here’s how it works:

• Private individuals organize “School Tuition Organizations” to manage and
  distribute scholarship funds to families who want to place their children in
  private schools.  There’s a wide variety—some of these limit scholarships to particular religious schools (Catholic, Jewish, evangelical) while others do not.
• Taxpayers voluntarily donate to School Tuition Organizations of their choice and receive a state tax credit (up to $500)—thus directing a few of their own “tax
  dollars” according to private choice.
• Families apply to an STO of their choice for funds, and choose from among the schools that STO has chosen to support.

The opponents – who sued to have the law declared unconstitutional – lacked legal “standing.”  NONE of their tax dollars went to any of the STOs or any of the private schools, religious or otherwise.  Thus they suffered no legal “injury.”

Like so many recent Supreme Court decisions, this one was close – 5 to 4.  Justice Kennedy is the “swing vote” who made the difference.

Congratulations, Arizona families!  You have choices about where to educate your children, without having to pay twice—first through your tax dollars that support public education, and again through tuition for your choice of private schools.

And besides the benefits to families, this important decision may help to ward off other ominous litigation—for example, challenges by non-believers to the minister’s parsonage allowance, a critical tax benefit for churches and pastors.

“Separation of church and state” is a tiresome phrase that activists have twisted to eject religious expression from the public square—restricting religious liberty.  But sometimes church and state do need separation: When churches select the persons who will carry out its spiritual mission, the state has no business breaking and entering the sanctuary under the guise of “discrimination” or similar employment laws.  In that context, “separation” protects religious liberty.

The U.S. Supreme Court has taken a case with critical implications for churches and other religious organizations (Hosanna Tabor-Lutheran Church and School v. Perich).  Cheryl Perich taught parochial school after being trained in Lutheran theology and “called” by the church congregation as a “commissioned” minister.  She consented to internal dispute resolution procedures applicable to church clergy and accepted tax benefits that only clergy may receive.  Her duties included teaching religion, leading students in daily devotions and prayer, and leading school devotions in rotation with other teachers.  After developing narcolepsy, she took a leave of absence.  The school arranged for another teacher to complete the school year and would have worked with Perich for a smooth transition back to the classroom—but she showed up with a doctor’s note and demanded immediate reinstatement, threatening to sue.  The church congregation rescinded her call and she sued, based on the Americans with Disabilities Act.  

Normally there are two sides to every story and a disgruntled employee like Perich is entitled to her “day in court.”  But when a church selects persons integral to its spiritual mission, the First Amendment says “hands off our hiring.”  The state has no business requiring a church to retain a “ministerial employee” who no longer satisfies the criteria for its ministry.  And when a church operates a religious school, the teachers are its lifeblood, carrying out the school’s spiritual mission.

See Death of a Christian Nation, Chapter 13 – “Behind Church Doors.”

You’ve been hearing about it in the news for over a year now—since Congress rushed to enact the 2,700-page “Patient Protection and Affordable Health Care Act” over the strong objections of the American people.  Never before has the federal government required every American to purchase a product or service—merely for existing, rather than for voluntarily participating in an activity the government may regulate. 

Congress knew there were constitutional questions.  Congress knew that legal challenges were on the horizon.  But they rushed forward, ignoring the will of the people and the Constitution.  Just minutes after the Act was passed, the lawsuits began.  Cases are now winding their way through the federal appellate courts.  Recently, the Fourth Circuit Court of Appeals, in Richmond, VA, is hearing oral arguments in two cases.   Other circuits will soon weigh in.  Eventually the U.S. Supreme Court will have to weigh in.

Deborah, author of Death of a Christian Nation, has written briefs for the Fourth and Eleventh Circuits about the constitutional deficiencies in the new law.  Congress asserts power under the Commerce Clause of the Constitution, which allows it to regulate interstate commerce.  But the decision not to purchase health insurance is inactivity—not the sort of economic or commercial activity Congress may regulate.  The federal government is a government of limited, specifically enumerated powers.  The health care law stretches the elastic too far and threatens to destroy any limits on congressional power. 

America is a land of liberty and freedom—not a land where the government compels every citizen to purchase a particular product or service.  Americans pay taxes but law-abiding citizens decide where to live, what to eat, what to wear, what to drive, what to buy.  The implications of the health care law are frightening.  It is important to care for the poor and sick, but not at the expense of basic freedoms Americans cherish.

Sometimes it costs money to speak, particularly in the context of a campaign or heated political debate.  Candidates and their supporters must raise and spend funds in order to get their message to the people.  But what if—every time you spent a dollar—the government cut a check to your opponent?

That’s the essence of Arizona’s “Matching Funds” provision, an integral part of its state campaign finance law.  Some candidates choose to finance their own campaigns privately, while others opt for public funding.  Suppose you are a privately financed candidate.  When you—or a supporting independent group—spend money for your campaign, the government disburses an equal amount to each of your opposing publicly financed opponents.

This scheme discourages political speech, one of our core First Amendment rights in America.  It is especially unfair to independent groups formed to advocate for particular issues—pro-life groups, for example.  Justice and Freedom Fund filed an amicus brief in the Supreme Court, focused on how the law burdens these groups.  Arizona’s scheme allegedly guards against political corruption—a goal not applicable to independent advocacy groups.  It also attempts to “level the playing field”—a purpose the Supreme Court has held to be unconstitutional in our free country.

On March 28, 2011, the U.S. Supreme Court heard arguments in a case challenging Arizona’s law.  Deborah Dewart, Senior Legal Counsel for Justice and Freedom Fund, was there to listen.  Based on the lively questions the Justices posed to attorneys, it looks like a victory for free speech.  Stay tuned!

Check out:  http://justiceandfreedom.org for more information on Justice and Freedom Fund.