Assuming Elena Kagan is confirmed by the Senate – and there is every indication that she will be – she will join the Court with church-state case already on the docket. Arizona Christian School Tuition Organization v. Winn was accepted in May and will pose a couple of church-state questions:
(1) Whether respondents have taxpayer standing when they cannot allege that the Arizona Tuition Tax Credit involves the expenditure or appropriation of state funds; and (2) whether a tax credit that advances the legislature’s legitimate secular purpose of expanding educational options for families unconstitutionally endorses or advances religion simply because taxpayers choose to direct more contributions to religious organizations than nonreligious ones.
SCOTUSWiki has links to the briefs in the case, which will be our first occasion to gauge Justice Kagan's take on taxpayer standing (read her answer on the standing issue in her confirmation hearing here) and, if it passes that hurdle, on the question of the advancement of religion by government by way of tax credits for private school tuition. While the Court ruled school voucher programs constitutional in Zelman, this case may give them the opportunity to refine, expand, or narrow that opinion. Law professor Eugene Volokh argues that it "may strengthen the Zelman principle to make clear that these sorts of programs are indeed constitutional."
