And here is the text of the piece:
While much of the nation was digesting the implications of the election Wednesday morning, the Supreme Court heard arguments in a long simmering dispute over the constitutionality of tax credits for religious and other private schools. For those who read Supreme Court tea leaves, Arizona Christian School Tuition Organization v. Winn is the church-state case to watch.
In 1997, Arizona passed a statute permitting residents to contribute up to $500 ($1,000 for married couples) that they would otherwise pay in taxes to a nonprofit "school tuition organization" of their choice. STOs are charitable groups that give scholarships to students in private schools.
Because many STOs provide their scholarships to religious schools, a group of citizens sued, challenging the program as an unconstitutional establishment of religion and asking the courts to kill it. Last year the Ninth Circuit Court of Appeals agreed and struck it down.
I expect the Supreme Court to reverse that decision; but the grounds on which it chooses to reverse may be just as important as the outcome of the case itself.
In the 2002 case Zelman v. Simmons-Harris, a divided court (5-4) upheld a Cleveland school voucher program, reasoning that parents, not the state, decided how to use the vouchers. So even though 96% of parents used their vouchers for Catholic private schools, the state didn't violate the separation of church and state by issuing the vouchers in the first place.
In Arizona, similarly, it is citizens—not the state—who decide whether to use their tax credit for a religious STO or a nonreligious one. The pending Supreme Court case, therefore, seems to fit comfortably within the Zelman precedent.
Still, the outcome is no sure thing. Justice Anthony Kennedy is often the court's swing vote, especially in church-state decisions, and he is never predictable. And the most revealing vote might be cast by Justice Elena Kagan, the court's newest member.
Justice Kagan was appointed to the court after the retirement of Justice John Paul Stevens, who had served since 1975. On matters of church and state, Justice Stevens generally adopted a stance of strict separation. He tartly demurred from the court's endorsement of vouchers in Zelman, dismissing the decision as "profoundly misguided."
It was "quite irrelevant," he argued, that parents rather than the government were the ones deciding whether to use their vouchers for a religious or non-religious school. Anything that might "remove a brick from the wall that was designed to separate religion and government," he said, must be prohibited.
Though Justice Stevens was arguably the staunchest advocate of separation, his view in Zelman reflected that of the court's liberal wing, which now includes Justice Kagan (and Justice Sonia Sotomayor).
Yet the Arizona case is the kind of issue on which Justice Kagan, who is likely to be reliably liberal on many issues, could part ways with her liberal colleagues. As dean of Harvard Law School, Ms. Kagan was widely praised for fostering political and religious diversity, creating a welcoming attitude toward conservative and evangelical professors and students. Whatever her vote in the Arizona case, her background suggests she'll be less averse than her predecessor to accommodating religion in public life.
The other reason to watch this case closely is that the outcome may turn on "standing." To challenge a government program, a plaintiff must show that he or she has been injured by it. Accordingly, several justices asked on Wednesday whether the Arizona program puts any of the plaintiffs' money at stake. Arizona argues that it doesn't, as the program merely gives residents tax credits (as opposed to taxpayer-funded vouchers). If the court agrees, then the plaintiffs may not have standing to sue.
The Supreme Court has long interpreted "injury" leniently in church-state cases, treating them as exceptions to the rules of standing. Were it to conclude that the Arizona taxpayers don't have standing to sue, the court would reverse past practice—and could greatly reduce the number of possible future challenges to state programs that implicate religion in some way.
That would leave more of the decisions about programs that benefit religious schools to state and local lawmakers—and fewer of them to unelected judges.
Mr. Skeel is a law professor at the University of Pennsylvania and co-author of the blog "Less Than the Least."
