chapter  5
46 Pages

Where States Are and Proposals for Reform

With the Supreme Court’s ruling in Arizona Christian Scholarship Tuition Organization v. Winn, “[h]owever blatantly the government may violate the Establishment Clause, taxpayers cannot gain access to the federal courts.”2 As disturbing as this lament by the dissent, the implications are clear. Those taxpayers and citizens who object to increasing amounts of state funds being directed to aid religious education in a variety of inventive ways and are troubled by the consequent erosion of basic principles of separation of church and state must now look primarily to state courts and legislatures for relief. In an earlier context Justice William J. Brennan called for a larger role for state judiciaries in safeguarding constitutional liberties:

[T]he very premise of … cases that foreclose federal remedies constitutes a clear call to state courts to step into the breach. With the federal locus of our double protections weakened, our liberties cannot survive if the states betray the trust the [U.S. Supreme] Court has put in them. … With federal scrutiny diminished, state courts must respond by increasing their own.3