Flast Exception Still Stands

This morning the Supreme Court issued its opinion in Arizona Christian School Tuition Organization v. Winn, in which the Court held, 5-4, that Arizona taxpayers lack standing to challenge the provision of tax credits for contributions to organizations that subsidize tuition at private religious schools.  Justice Kennedy’s opinion for the majority reasoned that the taxpayers could not avail themselves of the narrow exception to the general rule against taxpayer standing created by Flast v. Cohen. He writes:

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 (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.

Justice Scalia wrote a brief concurring opinion, joined by Justice Thomas, noting his continuing belief that Flast is an anomaly that should be overruled.  Justice Kagan wrote a strongly worded dissent in whcih she argued the majority opinion “devastates taxpayer standing in Establishment Clause cases” and “ravag[es] Flast.”

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