Kagan said the Court had ruled “against all precedent” in denying standing to those who claimed that the tuition tax credit violated the First Amendment’s establishment clause by subsidizing religious education. She said the Court had ruled five times before on tax subsidies like Arizona’s, “including in a prior incarnation of this very case!,” without doubting the standing of taxpayers to challenge the programs.
The Court’s newest justice said the Court’s decision seriously weakens the establishment clause and provides a “one-step instruction” for governments seeking to circumvent the First Amendment to benefit religious programs. Her dissent was joined by justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.
