Winn v. Garriott

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KATHLEEN M. WINN, an Arizona 

taxpayer; DIANE WOLFTHAL, an

Arizona taxpayer; MAURICE

WOLFTHAL, an Arizona taxpayer

LYNN HOFFMAN, an Arizona

taxpayer, No. 05-15754

Plaintiffs-Appellants, D.C. No.

v.

 CV-00-00287-EHC

District of Arizona,

ARIZONA CHRISTIAN SCHOOL TUITION

ORGANIZATION; ARIZONA SCHOOL Phoenix

CHOICE TRUST; LUIS MOSCOSO; ORDER

GALE GARRIOTT, in his official

capacity as Director of the

Arizona Department of Revenue;

GLENN DENNARD,

Defendants-Appellees.



Filed October 21, 2009

Before: Dorothy W. Nelson, Stephen Reinhardt and

Raymond C. Fisher, Circuit Judges.

Order;

Concurrence by Judge Pregerson;

Concurrence by Judge D.W. Nelson;

Dissent by Judge O’Scannlain

14703

14704 WINN v. ARIZONA CHRISTIAN SCHOOL

ORDER

Judges Reinhardt and Fisher voted to reject the petitions for

rehearing en banc and Judge Nelson so recommended.

The full court was advised of the petitions for rehearing en

banc. A judge requested a vote on whether to rehear the mat-

ter en banc, and the matter failed to receive a majority of the

votes of the nonrecused active judges in favor of en banc con-

sideration. Fed. R. App. P. 35.

The three petitions for rehearing en banc, filed May 14,

2009, are denied.

PREGERSON, Circuit Judge, concurring:

For the reasons stated by the panel in its concurrence, I also

concur in the denial of rehearing en banc.

D.W. NELSON, REINHARDT and FISHER, Circuit Judges,

concurring in the denial of rehearing en banc:

A majority of the active judges of our court declined to

vote for rehearing of this case en banc. We concur in the

court’s decision not to go en banc.

The State of Arizona finances private “school tuition orga-

nizations” (STOs) by giving dollar-for-dollar tax credits to

individuals who contribute to them. On its face, the statute

creating this subsidy requires STOs to provide scholarships

for students “to attend any qualified school of their parents’

choice.” Ariz. Rev. Stat. Ann. § 43-1089(G)(3) (2005)

(emphasis added).1 As the Arizona Department of Revenue

1

All references to “Section 1089” refer to the program as set forth in

Arizona Revised Statutes Annotated § 43-1089 (2005), the version of the

WINN v. ARIZONA CHRISTIAN SCHOOL 14705

applies the statute, however, the state reimburses contribu-

tions to STOs that restrict their scholarships to use at religious

schools. Consequently, 85 percent or more of the state-

financed scholarship money is available only to students

whose parents are willing to send them to sectarian institutions.2

If these facts are proved true, the Arizona Department of

Revenue’s execution of the scholarship program (Section

1089) violates the Establishment Clause. In Zelman v.

Simmons-Harris, 536 U.S. 639 (2002), the Court upheld a

school voucher program that “provide[d] assistance directly”

to parents without regard for religion, and public funds

reached religious institutions only as the result of parents’

choices about their children’s education. Id. at 652. Parents

received aid whether or not they were willing to enroll their

children in sectarian schools, so the program did not exert

pressure on parents to choose religious schools. Under the

Arizona program, by contrast, taxpayers, rather than parents,

direct funds to religious organizations. Access to assistance is

restricted on the basis of religion, creating financial incentives

that may skew parents’ choices toward religious schools. See

statute in place when plaintiffs’ complaint was filed. Any differences

between this and the current version of Section 1089 are not significant for

purposes of the analysis.

2

The dissent sees no constitutional distinction between a tax deduction

and a tax credit. See Dissent 14721 n.3. We disagree. A tax-credit eligible

contribution to an STO costs the taxpayer nothing. See Winn v. Killian,

307 F.3d 1011, 1015 n.5 (9th Cir. 2002), aff’d sub. nom Hibbs v. Winn,

542 U.S. 88 (2004) (“From a purely financial perspective, . . . a taxpayer

is unaffected by his decision as to whether or not to make an STO contri-

bution. The funds that he may contribute will be unavailable to him in any

event: they will be used either to make the contribution or to pay the taxes

he owes.”). Tax deductible contributions, by contrast, impose a cost on the

taxpayer. See id. (“[W]hen a taxpayer is entitled to a tax deduction, the

taxpayer must in most if not all instances still pay a majority of the tax

involved[.]”). Whereas a tax deduction would lower the cost of contribu-

tions to STOs, a dollar-for-dollar tax credit reduces that cost to zero, in

effect allowing individual taxpayers to directly allocate public funds.

14706 WINN v. ARIZONA CHRISTIAN SCHOOL

id. at 650. The differences between the Ohio and Arizona pro-

grams are constitutionally meaningful.

The dissent from rehearing en banc demonstrates that oth-

ers may prefer a more expansive reading of Zelman. Careful

review of the two cases, however, shows why the dissent’s

argument that “Winn cannot be squared with the Supreme

Court’s mandate in Zelman” is not persuasive. Dissent 14719-

20.

I. Background

On its face, Section 1089 appears to provide for parental

choice. The statute says that for an organization to qualify as

an STO eligible to receive state-reimbursed contributions the

organization must provide scholarships “to children to allow

them to attend any qualified school of their parents’ choice.”

Ariz. Rev. Stat. Ann § 43-1089(G)(3) (emphasis added).3 If

this were how Arizona applied the statute, the Arizona pro-

gram would be similar to the majority of the tax credit pro-

grams currently in operation. Like Section 1089, four of these

programs contain provisions directing scholarship organiza-

tions to provide scholarships for students to attend any quali-

fied school of their parents’ choice.4 These “parental choice”

clauses may explain the apparent absence of any Establish-

ment Clause challenges to those programs.

3

A “qualified school” is defined by statute as “a nongovernmental pri-

mary school or secondary school or a preschool for handicapped students

that is located in this state, that does not discriminate on the basis of race,

color, handicap, familial status or national origin and that satisfies the

requirements prescribed by law for private schools in this state.” Id. § 43-

1089(G)(2).

4

See Fla. Stat. § 220.187(6)(h); Ga. Code Ann. § 20-2A-1(3)(A); Ind.

Code § 20-51-3-1(b); Iowa Code § 422.11S(5)(c)(1); R.I. Gen. Laws § 44-

62-2(a). One of the currently operating programs contains no such parental

choice provision. See 24 Pa. Stat. Ann. § 20-2005-B.

WINN v. ARIZONA CHRISTIAN SCHOOL 14707

This is not, however, how the Arizona Department of Rev-

enue applies the statute. According to plaintiffs’ complaint,

Arizona gives tax credits reimbursing individuals who con-

tribute to STOs that expressly restrict their scholarships to use

at religious schools. The largest STO, the Catholic Tuition

Organization of the Diocese of Phoenix, restricts its scholar-

ships to use at Catholic schools in the Phoenix Diocese; the

second largest, the Arizona Christian School Tuition Organi-

zation provides scholarships only to students attending evan-

gelical Christian schools; and the third largest, Brophy

Community Foundation, restricts its scholarships to use at two

specific Catholic schools. See Winn, 562 F.3d at 1006. As a

result of how the Arizona Department of Revenue applies

Section 1089, plaintiffs allege, these three religious STOs

controlled 85 percent of the total STO donations in 1998, the

year before the complaint was filed. See id. at 1006. Plaintiffs

argue that it is this application of Section 1089 that violates

the Establishment Clause.

II. Effect

We turn first to the issue of “whether Section 1089 ‘has the

forbidden “effect” of advancing or inhibiting religion.’ ”

Winn, 562 F.3d at 1012 (quoting Zelman, 536 U.S. at 649).

A. Parental Choice

The Winn panel held that the Arizona Department of Reve-

nue’s application of Section 1089 may not provide parents

with “true private choice” within the meaning of Zelman. See

id. at 1015-18. With respect to this conclusion, the dissent

accuses the panel of rejecting the majority’s holding in Zel-

man in favor of Judge Souter’s dissent. Not so.

1.

The dissent fails to address the crucial difference between

the Ohio voucher program upheld in Zelman and the Arizona

14708 WINN v. ARIZONA CHRISTIAN SCHOOL

Department of Revenue’s application of Section 1089: with

respect to religion, the Ohio program gave parents equal

access to tuition benefits. See Zelman, 536 U.S. at 645. Under

the Ohio program, the state provided tuition aid on the basis

of financial need, without regard to religion, and eligible par-

ents were free to apply the aid toward any private school, reli-

gious or secular, or toward a public school outside the district

willing to participate in the program (though none was). If a

parent decided to send her child to a private school, the state

wrote a check made payable to the parent, which the parent

could then endorse over to her chosen school. See id. at 646.

Crucially, a parent’s choice to send her child to a religious

school would neither help nor harm her chance of receiving

tuition aid.

Whether such a program violates the Establishment Clause,

the Court held, does not depend on whether the parent receiv-

ing tuition aid has a broader array of religious than secular

schools to choose from. This is because “[t]he constitutional-

ity of a neutral educational aid program simply does not turn

on whether and why, in a particular area, at a particular time,

most private schools are run by religious organizations, or

most recipients choose to use the aid at a religious school.” Id.

at 658 (emphasis added). The majority in Zelman made clear,

however, that a “neutral educational aid program” — or, as

the Court also put it, a “program of true private choice” — is

one that grants access to benefits without regard to religion.

Id. at 658, 662.

The importance of providing equal access to benefits is

emphasized throughout Zelman. A common thread running

through indirect aid programs the Supreme Court has upheld

against Establishment Clause challenges, the Zelman Court

observed, is that they have been “neutral with respect to reli-

gion[ ] and provide[d] assistance directly to a broad class of

citizens.” Id. at 652 (emphases added); see also Mueller, 463

U.S. at 397; Witters v. Wash. Dep’t of Servs. for the Blind,

474 U.S. 481, 487 (1986); Zobrest v. Catalina Foothills Sch.

WINN v. ARIZONA CHRISTIAN SCHOOL 14709

Dist., 509 U.S. 1 (1993).5 Likewise, under the Ohio voucher

program, the Court stressed, “[p]rogram benefits are available

to participating families on neutral terms, with no reference

to religion.” Zelman, 536 U.S. at 653 (emphases added).

By contrast, as plaintiffs allege the Arizona Department of

Revenue applies the statute, access to Section 1089-funded

scholarships is not “available . . . on neutral terms, with no

reference to religion.” Parents who are unwilling to send their

child to a religious school may be denied access to program

benefits because, as plaintiffs allege, there are not a sufficient

number of scholarships available for use at secular schools.

Accordingly, these parents are shut out of the program alto-

gether, and at the very least their chances of receiving benefits

are harmed by their choice to send their child to a secular

school.

This lack of access on a religiously neutral basis explains

why Section 1089 as operated by the Arizona Department of

Revenue would violate the Establishment Clause. This con-

clusion is entirely consistent with — and required by — the

Court’s analysis in Zelman. It is true that the majority in Zel-

man rejected Justice Souter’s view that the number of reli-

gious and secular schools participating in the Ohio voucher

program was relevant to its constitutionality. But before the

Court addressed Justice Souter’s concerns, it first identified

several features of the Ohio program that made it one of “true

private choice . . . , and thus constitutional.” Id. Among these

features, the tuition aid distributed under the Ohio program

5

The program upheld in Mueller, Zelman explained, provided aid to

“ ‘all parents’ ” to pay for certain educational expenses at secular or reli-

gious schools. Zelman, 536 U.S. at 650 (quoting Mueller, 463 U.S. at

397). Under the program in Witters, Zelman continued, “recipients gener-

ally were empowered to direct the aid to schools or institutions of their

own choosing.” Id. at 651 (emphases added). Likewise, the program

upheld in Zobrest “ ‘distribute[d] benefits neutrally to any child qualifying

as disabled,’ ” without regard to religion. Id. (emphasis added) (quoting

Zobrest, 509 U.S. at 10).

14710 WINN v. ARIZONA CHRISTIAN SCHOOL

created “no ‘financial incentives’ that ‘skew[ed]’ the program

toward religious schools.” Id. (alteration omitted) (quoting

Witters, 474 U.S. at 487-88). The Court recognized that

“[s]uch incentives ‘are not present where the aid is allocated

on the basis of neutral, secular criteria that neither favor nor

disfavor religion, and is made available to both religious and

secular beneficiaries on a nondiscriminatory basis.’ ” Id. at

653-54 (emphasis added, alteration and ellipses omitted)

(quoting Agostini v. Felton, 521 U.S. 203, 231 (1997)).

The Arizona Department of Revenue permits scholarships

funded under Section 1089 not to be “made available to both

religious and secular beneficiaries on a nondiscriminatory

basis.” Therefore, Zelman requires a closer look at whether

the program, as applied, creates “financial incentives that

skew the program toward religious schools.” Id. at 653 (alter-

ations and internal quotation marks omitted). This is why it is

relevant that, by allowing tax credits for contributions to dis-

criminatory STOs, the Arizona Department of Revenue has

created an overwhelming disparity in the number of scholar-

ships exclusively available for use at religious schools com-

pared to the number available for use at secular schools. See

Winn, 562 F.3d at 1016-18.

Consistent with Section 1089’s parental choice provision,

see Ariz. Rev. Stat. Ann. § 43-1089 (2005), the Arizona

Department of Revenue could apply the program to require

that STOs make state-funded scholarships “available to both

religious and secular beneficiaries on a nondiscriminatory

basis.” Zelman, 536 U.S. at 653-54 (internal quotation marks

omitted). If Section 1089 were applied in this neutral manner,

data concerning the number of scholarships applied toward

religious schools versus secular schools would indeed be irrel-

evant to the Establishment Clause inquiry as long as the State

of Arizona otherwise provided students “a range of [secular]

educational choices.” Id. at 655.

WINN v. ARIZONA CHRISTIAN SCHOOL 14711

As Section 1089 is currently applied, however, the program

allows state-funded scholarships to be restricted to use at reli-

gious schools. It is therefore necessary to consider whether, in

reality, the program creates incentives for parents to send their

children to religious schools in order to gain access to bene-

fits. This conclusion is required by — and, at the very least,

consistent with — Zelman.6

2.

The dissent contends that the Arizona program is valid

because the State of Arizona has other programs in place that

provide secular educational options for those unable to obtain

a program scholarship. See Zelman, 536 U.S. at 655-56 (“The

Establishment Clause question is whether Ohio is coercing

parents into sending their children to religious schools, and

that question must be answered by evaluating all options Ohio

provides Cleveland schoolchildren, only one of which is to

obtain a program scholarship and then choose a religious

school.” (emphases added)). The dissent fails to recognize

Zelman’s holding that a program of “true private choice” is

one in which “[p]rogram benefits are available to participating

families on neutral terms, with no reference to religion.” Id.

at 653. A short hypothetical will show why the dissent’s read-

ing of Zelman is untenable. Consider a program, instituted by

a state that provides an array of secular educational options,

that offers tax deductions exclusively to parents sending their

children to private schools. Each eligible parent receives a tax

6

The dissent’s hypothetical, about a world in which Section 1089 oper-

ates to restrict scholarships to use at secular schools, is premised on the

misunderstanding that, under the Free Exercise Clause, governments have

an affirmative obligation to fund religious educational options if they

decide to make secular options available. See Dissent 14725-26. But see

Locke v. Davey, 540 U.S. 712 (2004) (rejecting Free Exercise challenge

to statute providing postsecondary education scholarships but prohibiting

use of the scholarships for a degree in devotional theology from a religious

institution). Constitutional limitations on support for religion do not pre-

cisely mirror limitations on failures to support religion.

14712 WINN v. ARIZONA CHRISTIAN SCHOOL

deduction unrelated to the amount spent on tuition, thus

ensuring a windfall to parents who send their children to reli-

gious schools, which typically charge lower rates than secular

private schools. Assume this hypothetical program has a valid

secular purpose. For most potential recipients, however, bene-

fits under the program are, as a practical matter, available

only if the recipient chooses to send her child to a relatively

low-cost religious school. Thus, the unmistakable effect of the

program is to create special incentives to send one’s child to

a sectarian school.

Under the dissent’s reading of Zelman, this hypothetical

program would easily withstand an Establishment Clause

challenge. Anyone can participate in the program. Anyone

who participates receives identical tax benefits. Anyone can

apply the tax benefits toward a private school of his or her

choice. See Dissent 14722. Moreover, for those who choose

not to participate in the program, the state provides an array

of public schooling options. See id. at 14732-33.

This program is not a hypothetical; it is the New York tax

deduction scheme invalidated in Committee for Public Educa-

tion & Religious Liberty v. Nyquist, 413 U.S. 756 (1973) —

a case that Zelman distinguished but declined to overturn.7 See

Nyquist, 413 U.S. at 788 (“In its attempt to enhance the

opportunities of the poor to choose between public and non-

7

The New York program also had provisions offering private school

tuition reimbursements, paid directly to the school, for parents who fell

below a certain income level and grants to private schools for the mainte-

nance and repair of their facilities. The Court treated each provision of the

program as severable and held that each provision separately violated the

Establishment Clause. See Nyquist, 413 U.S. at 741-45. Nothing in Zelman

suggests the Court would have upheld the tax deduction provision of the

New York program if it had been considered in isolation. See Zelman, 536

U.S. at 661 (observing that New York program “gave a package of bene-

fits exclusively to private schools and the parents of private school enroll-

ees” and “provided tax benefits ‘unrelated to the amount of money

actually expended by any parent on tuition,’ ensuring a windfall to parents

of children in religious schools” (quoting Nyquist, 413 U.S. at 790).

WINN v. ARIZONA CHRISTIAN SCHOOL 14713

public education, the State has taken a step which can only be

regarded as one ‘advancing’ religion.”); Zelman, 536 U.S. at

661 (observing that the “ ‘function’ ” of the New York pro-

gram “was ‘unmistakably to provide desired financial support

for nonpublic, sectarian institutions’ ” (quoting Nyquist, 413

U.S. at 783 (emphasis added))). Zelman explained that

Nyquist had “expressly reserved judgment with respect to ‘a

case involving some form of public assistance (e.g., scholar-

ships) made available generally without regard to the

sectarian-nonsectarian, or public-nonpublic nature of the insti-

tution benefitted.’ ” Id. (quoting Nyquist, 413 U.S. at 782-83).

The Ohio voucher program fit this description. The Arizona

Department of Revenue’s application of Section 1089 does

not.

In Zelman, the Court clarified that “Nyquist does not gov-

ern neutral educational assistance programs that . . . offer aid

directly to a broad class of individual recipients defined with-

out regard to religion.” Id. at 662. According to the dissent,

Section 1089 is such a “neutral educational assistance pro-

gram.” By the dissent’s logic, however, the New York pro-

gram invalidated in Nyquist would also be such a program.

Even more troublesome, a program that provided tax deduc-

tions exclusively to parents sending their children to religious

schools would also constitute a “neutral educational assis-

tance program” as long as the state had other programs in

place that provided secular educational options. It is this

result, not the outcome in Winn, “that simply cannot be recon-

ciled with Zelman.” Dissent 14724. The Supreme Court

elected not to overturn Nyquist, and we may not do so on its

behalf.

B. Taxpayer Choice

Next, the dissent challenges the panel’s conclusion that the

choices provided to taxpayers under Section 1089 — choices

that, plaintiffs allege, restrict parents’ access to secular educa-

tional scholarships — fail to render the program constitu-

14714 WINN v. ARIZONA CHRISTIAN SCHOOL

tional. See Winn, 562 F.3d at 1018-23. Specifically, the

dissent contends the panel misapplied Larkin v. Grendel’s

Den, Inc., 459 U.S. 116 (1982). A careful reading of Winn

shows that the dissent exaggerates the panel’s reliance on

Larkin.

Larkin does not control this case. See Winn, 562 F.3d at

1020 (emphasizing that “the delegation of scholarship funding

to individual taxpayers, such as in Section 1089, does less to

promote religion than the delegation of zoning authority to

churches,” such as provided under the statute at issue in

Larkin). Rather, the panel observed that Larkin’s holding

illustrates that when a statute delegates “a power

ordinarily vested in agencies of government” to a

private party, see [Larkin, 459 U.S.] at 522, without

reasonable assurance that the party’s choices will

advance the secular purposes of the statute, any

ensuing “perceived endorsement of a religious mes-

sage” may be “reasonably attribut[ed]” to the gov-

ernment.

Winn, 562 F.3d at 1020-21 (second quotation from Zelman,

536 U.S. at 652).

Contrary to the dissent’s suggestion, Larkin’s holding is not

limited to cases where the state vests governmental powers in

a “pervasively sectarian organization.” Dissent 14735. In

Board of Education of Kiryas Joel Village School District v.

Grumet, 512 U.S. 687 (1994), for example, the Court applied

Larkin when considering an Establishment Clause challenge

to a statute creating a school district coextensive with a reli-

gious community. This statute vested power in individual tax-

payers, not in a religious organization, but the Court

nonetheless invalidated it. See id. at 698 (“The Establishment

Clause problem [at issue] is more subtle [than that in Larkin],

but it resembles the issue raised in Larkin to the extent that

the earlier case teaches that a State may not delegate its civic

WINN v. ARIZONA CHRISTIAN SCHOOL 14715

authority to a group chosen according to a religious criteri-

on.”). Again, Winn does not suggest that the choices delegated

to taxpayers under the Arizona Department of Revenue’s con-

struction of Section 1089 are the constitutional equivalent of

the legislative action at issue in Kiryas Joel. That case makes

clear, however, that the delegation concerns identified in

Larkin are relevant to whether a reasonable, informed

observer would conclude that the choices delegated under

Section 1089 have the effect of promoting, or hindering, the

program’s secular purpose.8

The dissent further argues that in terms of constraining par-

ents’ access to secular educational options, taxpayers’ choices

under Section 1089 are no more constitutionally problematic

than the choice of public schools not to participate in the Ohio

voucher program in Zelman. Dissent 14736. This misses the

point. Under the Ohio program, it was not the public schools’

choices that ensured “the Establishment Clause was not impli-

cated” — it was the parents’ choices. Zelman, 536 U.S. at

652. Each parent had an equal choice under the Ohio program

as to whether to apply a tuition voucher toward a private

school, and the choice of one parent did not directly alter the

array of options available to another parent. Accordingly,

under the Ohio program, a parent’s choice as to how best to

educate her child had no coercive effect on another parent’s

choice whether to send her child to a secular or religious

school. The Ohio program thus provided each eligible parent

with a “genuine and independent private choice” whether to

direct assistance to a religious school. Id. (emphasis added).

The choices given to parents under the program therefore

ensured “the circuit between government and religion was

broken.” Id. Although a public school’s decision not to accept

8

The dissent asserts that the “allocation of scholarship funds” is not a

traditional governmental function. Dissent 14735 n.20. This framing of the

question is unhelpfully narrow. Educational policy is certainly a traditional

government function, and the state’s decision to reimburse contributions

to private scholarship funds is indisputably an educational policy decision.

14716 WINN v. ARIZONA CHRISTIAN SCHOOL

a voucher could indeed frustrate the secular purpose of the

Ohio program, the Supreme Court did not rely on those

choices to conclude the program was constitutional.

By contrast, the appellees in Winn rely on taxpayers’

choices in arguing that the current construction of Section

1089 is valid under the Establishment Clause. The effect of

these taxpayer choices, however, may be to harm the ability

of aspiring scholarship recipients to obtain a scholarship

available for use at a secular school. Accordingly, Section

1089 “delegat[es] to taxpayers a choice that, from the per-

spective of the program’s aid recipients, ‘deliberately skew[s]

incentives toward religious schools.’ ” Winn, 562 F.3d at 1013

(quoting Zelman, 536 U.S. at 650)). Such choices are not, in

themselves, sufficient to render an educational aid program

valid under the Establishment Clause.

In summary, it was crucial to Zelman’s holding that the

Ohio program afforded aid recipients a “genuine and indepen-

dent private choice” whether to direct the assistance they

received toward a religious school. Zelman, 536 U.S. at 652.

Although the Arizona Department of Revenue’s application

of Section 1089 does not afford such choice, Winn carefully

determined that the choice provided to taxpayers is insuffi-

cient to ensure “the circuit between government and religion

was broken.” Id. For reasons carefully laid out in the decision,

our court was correct to decline en banc review.

III. Secular Purpose

The dissent also faults Winn for concluding that Section

1089 may lack a valid secular purpose. See 562 F.3d at 1011-

12. This criticism is premature. The question before the panel

was “not whether Section 1089 in fact has a genuine, secular

purpose, but whether plaintiffs could prove, on the facts

alleged in the complaint, that it does not.” Id. at 1012.

As the dissent states, a “legislature’s stated reasons” for

enacting a statute “will generally get deference,” and must be

WINN v. ARIZONA CHRISTIAN SCHOOL 14717

accepted as true except in “unusual cases where the claim was

an apparent sham, or the secular purpose secondary.” Mc-

Creary County v. ACLU of Ky., 545 U.S. 844, 865 (2005).

The inquiry into whether a statute’s ostensible purpose is a

sham or secondary to a religious objective, however, must be

“undertaken from the perspective of ‘an objective observer,

one who takes account of the traditional external signs that

show up in the text, legislative history, and implementation of

the statute, or comparable official act.’ ” Winn, 562 F.3d at

1012 (quoting McCreary, 545 U.S. at 862. The dissent’s posi-

tion would foreclose such an inquiry.

The dissent surmises that in enacting Section 1089, “[t]he

legislature could hardly have had the ‘purpose’ of endorsing

religion when it set up a plan that, for all it knew, could have

resulted in absolutely no funding for religious entities.” Dis-

sent 14739 (emphasis added). The dissent makes this claim

without citing any evidence concerning what the legislature

actually knew about how Section 1089 would likely operate.

This is just as well, because no such evidence yet appears in

the record. But the dissent suggests it should not matter to us

whether the legislature knew that Section 1089 would result

in disproportionate funding being made available only for use

at religious institutions. The Supreme Court has cautioned us,

however, against evaluating a program’s purpose from the

perspective of an “absentminded objective observer, not one

presumed to be familiar with the history of the government’s

actions and competent to learn what history has to show.”

McCreary, 545 U.S. at 866. In short, the dissent appears to

call for either a heightened pleading standard for Establish-

ment Clause claims — under which the plaintiff must allege

specific facts establishing that the legislature acted for an

invalid purpose — or an approach to evaluating a program’s

purpose that “would cut context out of the enquiry, to the

point of ignoring history.” Id. at 864.

Regarding evidence of Section 1089’s implementation, the

dissent contends that because taxpayer contributions to STOs

14718 WINN v. ARIZONA CHRISTIAN SCHOOL

are private conduct, they are irrelevant to whether Section

1089 has a valid secular purpose. Notably, in an as-applied

context, at least two circuits have considered private conduct

under a government program to be probative of the program’s

purpose,9 and Winn does not foreclose the possibility that

plaintiffs can point to private conduct probative of whether

Section 1089 has a secular purpose. More probative, however,

is the government conduct on the part of the State of Arizona

in implementing Section 1089.

The Arizona Department of Revenue implements Section

1089 by allowing individuals to claim tax credits for contribu-

tions to private STOs. See Winn, 562 F.3d at 1009 (“The

Supreme Court has recognized . . . that state tax policies such

as tax deductions, tax exemptions and tax credits are means

of ‘channeling . . . [state] assistance’ to private organizations

. . . .” (emphasis added, ellipses in original) (quoting Mueller,

463 U.S. at 399)). According to plaintiffs’ complaint, the Ari-

zona Department of Revenue allows tax credits for contribu-

tions to STOs that provide scholarships only to religious

schools. Individuals’ contributions to STOs that discriminate

on the basis of religion are not, of themselves, probative of

Section 1089’s purpose. The fact that the Arizona Department

9

See Staley v. Harris County, Tex., 461 F.3d 504, 513 (5th Cir. 2006);

Bonham v. D.C. Library Admin., 989 F.2d 1242, 1244-45 (D.C. Cir.

1993). In Staley, the Fifth Circuit considered the community response to

a government-sponsored monument of a local citizen carrying a Bible in

evaluating whether the monument had a valid secular purpose. See 461

F.3d at 513 (“[T]he fact that the monument, with the Bible, stood without

complaint [from citizens] for thirty-two years, supports the notion that the

original purpose was not objectively seen as predominantly religious.”). In

Bonham, Judge Mikva, reversing the district court’s dismissal under Rule

12(b)(6) of a pro se plaintiff’s claim that the closing of a public library on

Easter Sunday violated the Establishment Clause, observed: “In determin-

ing the legislative purpose of a law or government practice, courts gener-

ally look to . . . testimony of parties who participated in the enactment or

implementation of the challenged law or practice, historical context, and

the sequence of events leading to the passage of the law or the initiation

of the practice.” 989 F.2d at 1244-45 (emphasis added).

WINN v. ARIZONA CHRISTIAN SCHOOL 14719

of Revenue gives tax credits for these contributions, however,

could be probative of legislative expectations as to how state

assistance under Section 1089 would be directed in practice.

Accordingly, by declining to rehear this case en banc, we

appropriately rejected the suggestion that we should turn a

blind eye to the history and implementation of Section 1089

simply because the statute is facially neutral.

IV. Conclusion

This case required the panel to apply Zelman to an educa-

tional aid program that, according to the allegations of plain-

tiffs’ complaint, lets taxpayers choose to make state-

reimbursed contributions to private scholarship organizations,

but allows the organizations to restrict access to state-funded

scholarships on the basis of religion. Winn correctly held that

such a program would not, under Zelman, provide parents

with “genuine and independent private choice,” and that the

choice given to taxpayers under such a program could not be

treated as the constitutional equivalent of the choice given to

parents under the Ohio voucher program. Unlike the program

in Zelman, the program alleged here neither makes scholar-

ships available to parents on a religiously neutral basis nor

gives them a true private choice as to where to utilize the

scholarships. The panel correctly held that these allegations,

if proven true, could establish an Establishment Clause viola-

tion. We therefore concur in the denial of rehearing en banc.

O’SCANNLAIN, Circuit Judge, dissenting from the denial of

rehearing en banc, joined by KOZINSKI, Chief Judge,

KLEINFELD, GOULD, TALLMAN, BYBEE, BEA, and

N.R. SMITH, Circuit Judges:

This case involves an Establishment Clause challenge to an

Arizona educational tax credit program that provides scholar-

14720 WINN v. ARIZONA CHRISTIAN SCHOOL

ships to students wishing to attend private schools. This case

is more notable, however, for what it does not involve: state

action advancing religion. The government does not direct

any aid to any religious school. Nor does the government

encourage, promote, or otherwise incentivize private actors to

direct aid to religious schools. Rather, “state aid reaches reli-

gious schools solely as a result of the numerous independent

decisions of private individuals.” Zelman v. Simmons-Harris,

536 U.S. 639, 655 (2002).

Unable to find any forbidden state action, the district court

correctly dismissed the case on the pleadings. Sadly, our

three-judge panel reversed. See Winn v. Ariz. Christian Sch.

Tuition Org., 562 F.3d 1002 (9th Cir. 2009). Because a pro-

gram of scrupulous “governmental neutrality between religion

and religion, and between religion and nonreligion,” Epper-

son v. Arkansas, 393 U.S. 97, 104 (1968), cannot violate the

Establishment Clause, I respectfully dissent from our full

court’s regrettable denial of rehearing en banc.

I dissent not only because Winn cannot be squared with the

Supreme Court’s mandate in Zelman, but also because the

panel’s holding casts a pall over comparable educational tax-

credit schemes in states across the nation and could derail leg-

islative efforts in four states within our circuit to create simi-

lar programs.1 In short, the panel’s conclusion invalidates an

increasingly popular method for providing school choice,

jeopardizing the educational opportunities of hundreds of

thousands of children nationwide.2

1

See Fla. Stat. § 220.187; Ga. Code Ann. § 48-7-29.16; Ind. Code § 6-

3.1-30.5; Iowa Code § 422.11S; 24 Pa. Stat. Ann. 20-2005-B; R.I. Gen.

Laws § 44-62-2; A.B. 279, 2009-10 Leg., Reg. Sess., § 1 (Ca. 2009); S.B.

342, 61st Leg., Reg. Sess., § 1(3)(b)-(c) (Mont. 2009); S.B. 289, 75th

Leg., Reg. Sess., § 6(1) (Nev. 2009); H.B. 2754, 75th Leg., Reg. Sess. (Or.

2009).

2

Such programs have operated without incident, perhaps because no one

has thought to challenge them post-Zelman. Cf., e.g., Bush v. Holmes, 919

So. 2d 392, 399 (Fla. 2006) (explaining that plaintiffs voluntarily dis-

missed a challenge to a Florida school choice program after Zelman).

WINN v. ARIZONA CHRISTIAN SCHOOL 14721

I

Arizona law (“Section 1089”) allows individuals voluntar-

ily to contribute money to private, nonprofit corporations

known as “student tuition organizations” (“STOs”). Ariz.

Rev. Stat. Ann. § 43-1089(A). Anyone can form an STO, and

there are no constraints on a taxpayer’s ability to donate to an

STO of his choice. Should a taxpayer elect to direct funds to

an STO, that contribution is refunded via tax credits of up to

$500 for individual taxpayers and up to $1000 for married

couples filing jointly.3 Id.

STOs use these funds to provide scholarships and tuition

grants to students attending schools within the state. Id. § 43-

1089(G). While essentially any private school is statutorily

eligible to receive scholarship monies,4 STOs may choose

which institutions they will support, so long as they provide

funds to more than one school. Id.5 Parents then decide which

3

The distinction the panel tries to draw between a tax credit and a

deduction, see 562 F.3d at 1014-15, can have no constitutional signifi-

cance. Both result in a reduction of the money paid by the taxpayer to the

government, with the amount of the reduction going to the designated

STO. The only practical difference is that with a deduction the taxpayer

must make a co-payment of his own, whereas with a credit there is no co-

payment. Of course, this favors richer taxpayers over poorer ones, as the

former are more able to afford a personal contribution. Moreover, in a pro-

gressive tax system, deductions most favor the taxpayers with the greatest

income. Not only does the value of the deduction increase with the taxpay-

er’s marginal rate, but so does the amount of government revenue that is

diverted at the taxpayer’s behest. It is difficult to see why such a regres-

sive regime (deductions) is constitutionally superior to the egalitarian tax

credit. Cf. Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dis-

senting) (The Constitution “does not enact Mr. Herbert Spencer’s social

statics.”).

4

Schools that “discriminate on the basis of race, color, handicap, famil-

ial status or national origin” are ineligible. Id. § 43-1089(G)(2).

5

Like virtually every other tax credit system, see supra note 1, the Ari-

zona statute requires STOs to provide scholarships “without limiting avail-

ability to only students of one school.” Ariz. Rev. Stat. Ann. § 43-

14722 WINN v. ARIZONA CHRISTIAN SCHOOL

private school they would like their child to attend, and apply

for scholarships from appropriate STOs.

In sum, the state’s involvement stops with authorizing the

creation of STOs and making tax credits available. After that,

the government takes its hands off the wheel. Anyone can

create an STO. Anyone can contribute to any STO and

receive identical tax benefits. Anyone can apply for any

scholarship offered by any STO.

Shortly after Section 1089’s enactment, the Arizona

Supreme Court held that the statute, on its face, did not vio-

late the Establishment Clause. See Kotterman v. Killian, 972

P.2d 606 (Ariz. 1999). Taxpayer plaintiffs then brought this

federal action, which was dismissed by the district court under

the Tax Injunction Act. See Winn v. Killian, 307 F.3d 1011,

1013 (9th Cir. 2002). After the suit was reinstated, see id. at

1020; see also Hibbs v. Winn, 542 U.S. 88 (2004) (affirming

our opinion reversing its dismissal), the district court again

dismissed the action, this time on federal constitutional

grounds, see Winn v. Hibbs, 361 F. Supp. 2d 1117 (D. Ariz.

2005).

Plaintiffs appealed. They allege (and no one disputes) that

in practice, some STOs make their scholarships available only

to students willing to attend religiously affiliated schools.

Winn, 562 F.3d at 1006. While the majority of STOs do not

so limit their scholarships,6 plaintiffs maintain that those that

do receive the overwhelming majority of taxpayer contribu-

tions. See id. Consequently, they assert that the pool of avail-

1089(G)(3). And again, like most other schemes, see supra note 1, the

statute says STOs should allow children “to attend any qualified school of

their parents’ choice.” Id. While hardly the model of clarity, this language

has been interpreted to mean STOs satisfy the statue by providing scholar-

ships to at least two schools.

6

Twenty-five of the fifty-five existing STOs limit scholarship awards to

religious schools.

WINN v. ARIZONA CHRISTIAN SCHOOL 14723

able scholarship money is diminished for parents wishing to

send their children to secular schools. See id. Plaintiffs con-

tend that this disparity means Section 1089, as applied, imper-

missibly favors religion over nonreligion. See id.

The three-judge panel agreed and reversed the district

court’s dismissal, holding that “if plaintiffs’ allegations are

accepted as true, Section 1089 violates the Establishment

Clause.” See id. at 1013. Concluding that the nature of the tax

credit made taxpayer contributions tantamount to government

funds, the panel found that Section 1089 potentially violated

both the purpose and effects prongs of Lemon v. Kurtzman,

403 U.S. 603 (1971). See id. at 1011-23. The fact that taxpay-

ers directed the majority of available funds to religious

schools, the panel reasoned, deprived parents of a “genuinely

independent and private choice[ ]” to send their children to

secular private schools. Id. at 1013 (internal quotation marks

and citation omitted). Accordingly, Section 1089 was not a

“neutral program of private choice and a reasonable observer

could . . . conclude that the aid reaching religious schools . . .

carries with it the imprimatur of government endorsement.”

Id. at 1013-14 (internal quotation marks and citation omitted).7

II

I have no bone to pick with the manner in which the panel

frames the basic constitutional inquiry. We all understand that

the Establishment Clause “prevents a State from enacting

laws that have the ‘purpose’ or ‘effect’ of advancing or inhib-

iting religion.” Zelman, 536 U.S. at 648-49. More often than

7

Make no mistake about the procedural posture of this decision. True,

the case will be remanded to the district court. But the panel holds that,

“if plaintiffs’ allegations are accepted as true, Section 1089 violates the

Establishment Clause.” Winn, 562 F.3d at 1013. So far as I can tell, no one

disputes plaintiffs’ factual allegations about how the program operates in

practice. Thus, the panel leaves the district court with no choice but to

declare the program unconstitutional as applied, rendering the remand lit-

tle more than an empty formality.

14724 WINN v. ARIZONA CHRISTIAN SCHOOL

not, the Court determines whether these commands have been

violated by asking whether a “reasonable observer,” who is

“aware of the history and context underlying a challenged

program,” would conclude that the state has “endorsed” reli-

gion. Id. at 655 (internal quotation marks and citation omit-

ted).

The panel’s heavy emphasis on Zelman is also warranted.

In that case, the Supreme Court upheld an Ohio school

voucher program that provided tuition aid to Cleveland fami-

lies on the basis of need. Id. at 644-45. The vouchers were

distributed directly to parents, who could choose to use the

scholarship money at any participating private, community,

magnet, or public school. Id. at 645-46. The Court ruled that

a “neutral program of private choice, where state aid reaches

religious schools solely as a result of the numerous indepen-

dent decisions of private individuals” does not violate the

Establishment Clause. Id. at 655.

It is in the application of these standards, however, that the

three-judge panel lost the forest for the trees. In doing so, it

reached a result that simply cannot be reconciled with Zelman.8

III

The panel is correct that a law may not have the “forbidden

‘effect’ of advancing . . . religion.” Id. at 649. What the panel

seems to neglect, however, is that “[f]or a law to have forbid-

den ‘effects’ under Lemon, it must be fair to say that the gov-

ernment itself has advanced religion through its own activities

and influence.” Corp. of the Presiding Bishop of the Church

of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327,

337 (1987).9

8

As the panel focused primarily on “effects,” rather than “purpose,” I

address these two Lemon prongs out of order.

9

For example, the panel asserts that Arizona parents are presented with

a choice that “deliberately skew[s] incentives toward religious schools.”

WINN v. ARIZONA CHRISTIAN SCHOOL 14725

I must confess that I am at a loss to understand how a rea-

sonable observer—one fully informed about all matters

related to the program—could conclude that the “government

itself” has endorsed religion in this case. Multiple layers of

private, individual choice separate the state from any religious

entanglement: the “government itself” is at least four times

removed from any aid to religious organizations. First, an

individual or group of individuals must choose to create an

STO. Second, that STO must then decide to provide scholar-

ships to religious schools. Third, taxpayers have to contribute

to the STO in question. Finally, parents need to apply for a

scholarship for their student. In every respect and at every

level, these are purely private choices, not government policy.

Under such circumstances, “government cannot, or at least

cannot easily, grant special favors that might lead to a reli-

gious establishment.” Zelman, 536 U.S. at 652-53 (internal

quotation marks and citation omitted). Only after passing

through choice piled upon choice do government funds reach

religious organizations. That is not government endorsement:

that is government nonchalance.10

See Winn, 562 F.3d at 1013 (quoting Zelman, 536 U.S. at 650). The actual

quotation from Zelman, however, includes a key qualifier: it condemns

only programs where “the State deliberately skewed incentives toward

religious schools.” 536 U.S. at 650 (emphasis added). Since only state

action can violate the Establishment Clause, the panel’s omission is tell-

ing.

10

The panel makes much of the fact that Zelman discussed aid flowing

“directly” to parents. I submit that the Supreme Court used such terminol-

ogy for two reasons. First, that was the case before the Court: it had no

reason to pontificate on systems involving additional levels of private

choice. Second, the language emphasized that the voucher program did not

involve constitutionally problematic “direct” aid to religious institutions.

The panel turns this language into a rallying cry to suggest that by filter-

ing aid through multiple levels of private choice—rather than a single

level—the state endorses religion. But that makes no sense. How can

increasing the separation between state and religion result in heightened

government endorsement?

14726 WINN v. ARIZONA CHRISTIAN SCHOOL

To illustrate my point, consider the following hypothetical.

Assume the exact statutory scheme embodied in Section

1089: anyone can create an STO, anyone can donate to an

STO, and STOs can limit their scholarships to particular types

of schools. Now imagine that only agnostics decide to create

STOs. Imagine further that every STO refuses to provide

tuition assistance to religious schools. In short, assume there

is absolutely no money available for parents who want to send

their children to a religious school. Would the parents be jus-

tified in accusing the government of depriving their children

of school funds? Of course not.

The foregoing example plainly shows that in this case, any

“endorsement” of religion arising from the disbursement of

state funds to religious entities turns wholly and completely

on the independent, uncoerced choices of private individuals.

The system Arizona created could just as easily have resulted

in a total dearth of funding for religious organizations as

opposed to the surfeit allegedly available. This feast or famine

is utterly out of the state’s hands. It simply cannot be, as the

panel claims, that the “scholarship program . . . skews aid in

favor of religious schools.” Winn, 562 F.3d at 1013 (emphasis

added). The “program” does no such thing: any “skew[ing]”

that occurs takes place because of private, not government

action. It is axiomatic that such action cannot violate the

Establishment Clause.

A

The panel however, believes that under this multi-tiered

system, choice is the culprit, not the savior. After all, plain-

tiffs allege that it is “the choice delegated to taxpayers” which

“channels a disproportionate amount of government aid to

sectarian STOs [that] limit their scholarships to use at reli-

gious schools.” Id. Zelman, the panel maintains, focused on

parental choice. Id. at 1018. Here, however, that choice is pur-

ported impermissibly to be “constrained” by the decisions of

taxpayers and STOs. Id. at 1016. In other words, the choices

WINN v. ARIZONA CHRISTIAN SCHOOL 14727

of others deprive parents of their own “independent and pri-

vate choice[ ].” Id. at 1013 (internal quotation marks and cita-

tion omitted). They might want to send their children to

secular private schools, but scholarships are not readily avail-

able for that purpose. Moreover, the panel claims the alleged

abundance of funds from religious STOs creates an incentive

for these parents to enroll their children in religious schools.

Id. at 1017-18. The panel therefore holds that Section 1089

“fails to provide genuine opportunities for . . . parents to

select secular educational options for their school-age chil-

dren.” Id. at 1018 (internal quotation marks and citation omit-

ted).

I admit that the panel’s conclusion with respect to the pur-

ported lack of parental choice finds support in Zelman. The

problem is, that support comes from Justice Souter’s dissent,

not the opinion of the Court. Several aspects of the majority’s

reasoning in that case make the Winn panel’s conclusion

infirm.

1

By focusing generally on the scope of parental choice, the

Winn panel, like the Zelman dissent, is barking up the wrong

tree. The question is not whether a parent’s choice is some-

how limited or constrained, the question is whether the gov-

ernment has somehow limited or constrained the choice.

In Zelman, Justice Souter accused the majority of allowing

external factors to “influenc[e] choices in a way that aims the

money in a religious direction.” 536 U.S. at 703 (Souter, J.,

dissenting). Of the fifty-six private schools that participated in

the Cleveland voucher program, he noted, forty-six were reli-

gious. Id. In his mind, this lack of a “wide array of private

nonreligious options” suggested that any “choice” was not

genuine. See id. at 703-06. Rather, he believed parents’ deci-

sionmaking process was skewed by “the fact that too few non-

religious school desks are available and few but religious

14728 WINN v. ARIZONA CHRISTIAN SCHOOL

schools can afford to accept more than a handful of voucher

students.” Id. at 707. “For the overwhelming number of chil-

dren in the voucher scheme,” he concluded, “the only alterna-

tive to the public schools is religious.” Id. He was not swayed

by the fact that these constraints were unrelated to state

action: “a Hobson’s choice is not a choice, whatever the rea-

son for being Hobsonian.” Id. In sum, Justice Souter would

have struck down the Ohio voucher program because parents’

choice was influenced by factors beyond their control.

Obviously, Justice Souter’s position did not carry the day.

“That 46 of the 56 private schools now participating in the

program are religious schools,” the majority explained, “does

not condemn it as a violation of the Establishment Clause.”

Id. at 655 (majority opinion). For one thing, the Court noted

that the imbalance was not a function of government action.

See id. at 656-57. Moreover, “[t]o attribute constitutional sig-

nificance” to the availability of secular options, “would lead

to the absurd result that a neutral school-choice program

might be permissible in . . . some states [with a high concen-

tration of secular schools], but not in other States [where reli-

gious schools are plentiful].” Id. at 657.11 To avoid this

absurdity, the majority held that “[t]he constitutionality of a

neutral educational aid program simply does not turn on

whether and why, in a particular area, at a particular time,12

most private schools are run by religious organizations, or

11

Earlier, I listed several state programs jeopardized by the panel’s hold-

ing. See supra note 1. Under the panel’s reasoning, those schemes could

be constitutional if taxpayers decided to provide more funds to secular,

rather than religious STOs. An identical program might then be constitu-

tional in one state and unconstitutional in another.

12

The “at a particular time” reference is especially significant. As dis-

cussed above, nothing in Section 1089 precludes any Arizona taxpayer,

tomorrow, from suddenly deciding to fund exclusively secular STOs. See

supra pp. 14709-11. The Supreme Court has twice declined to strike down

laws on the basis of such moving targets. See Zelman, 536 U.S. at 657-58;

Muller v. Allen, 463 U.S. 388, 401 (1983).

WINN v. ARIZONA CHRISTIAN SCHOOL 14729

most recipients choose to use the aid at a religious school.” Id.

at 658.13

I see no meaningful distinction between the situation in

Zelman and the facts of this case. Both cases involve alleged

“constraints” on access to a scarce secular resource—

“nonreligious [private] school desks.” In Zelman, only ten of

the participating schools were secular. Id. at 656. Parents were

thus “constrained” by third-party decisions to fund religious,

rather than secular schools. Here, while thirty out of fifty-five

STOs offer scholarships to secular schools, the majority of

program funds are allegedly concentrated in religious STOs.

Parents are thus “constrained” by the decisions of some STOs

to limit their scholarships to religious institutions, and tax-

payer choices to direct their funds to those STOs. The key

point is that in neither Zelman nor the case at hand are the

purported “constraints” government-induced. There is simply

no constitutionally significant distinction between a system

where—for reasons unattributable to state action—money is

available, but there are a limited number of schools to receive

it, and a system where schools may be available, but there is

a limited amount of money to spend. Under either scenario,

as Justice Souter bemoaned, “[f]or the overwhelming number

of children in the [program], the only alternative to the public

schools is religious.” Id. at 707 (Souter, J., dissenting).

I can go on. In Zelman, voucher funds could be used at par-

ticipating public schools in districts adjacent to Cleveland. Id.

at 645 (majority opinion). However, no such school “elected

to participate.” Id. at 647. Parental choice was therefore “con-

strained” by the decisions of out-of-district public school

13

The Court went on to explain that it is “irrelevant . . . to the constitu-

tionality” of a government aid program that “a vast majority of program

benefits went to religious schools.” Zelman, 536 U.S. at 658. The panel

distinguishes this point, claiming that the Zelman did not involve a situa-

tion where parental choice was “constrained.” Winn, 562 F.3d at 1017

n.14. As demonstrated below, that is simply not the case. See infra pp.

14728-31.

14730 WINN v. ARIZONA CHRISTIAN SCHOOL

administrators. Similarly, Ohio did not require private secular

schools to accept vouchers: they chose to do so. See id. at 656

n.4. Citing overcrowding or a desire for independence from

government funds, these schools could just as easily have

decided to opt out of the program. Alternatively, they could

have, for whatever reason, decided to close up shop. In either

scenario, parents again would be left with a reduced “choice”

to send their children to private, secular schools. Did the Zel-

man Court strike down the Ohio program for impermissibly

“delegating” such decisions to school administrators? Was

parental choice held to be unduly “constrained”? Of course

not. Instead, the Court said that the availability of a private

secular education, “in a particular area, at a particular time,”

was irrelevant to the constitutional inquiry. See Zelman, 536

U.S. at 656-60; supra pp. 14728.14

Ultimately, the panel seems to assume that parents must

have the same access to “nonreligious [private] school desks”

as they do to religious private school desks. But that was cer-

tainly not the case in Zelman, and the Ohio voucher program

was upheld. Indeed, such result is unattainable in any program

where the government is neutral with respect to religion and

nonreligion. If the government takes the constitutionally

required hands-off approach, external factors will define the

playing field. Contrary to the panel’s conclusion, the constitu-

tional inquiry “simply does not turn” on whatever influence

these factors might exert on parents. Zelman, 536 U.S. at 658.

14

The Zelman Court’s comment that the “preponderance of religiously

affiliated private schools certainly did not arise as a result of the [voucher]

program” is also instructive. 536 U.S. at 656-57. The Court stated that the

imbalance was “a phenomenon common to many American cities.” Id. at

657. In other words, the disparity was caused not by government action,

but rather by private predilections. The same can be said about the exis-

tence of religiously affiliated STOs and the disproportionate share of tax-

payer contributions they receive. The concentration of funds in religious

entities—and the resulting “constraint” on parental choice—“certainly did

not arise as a result of” any state action, but rather as a consequence of pri-

vate decisions. See supra pp. 14724-26.

WINN v. ARIZONA CHRISTIAN SCHOOL 14731

Again, provided there is “no evidence that the State deliber-

ately skewed incentives toward religious schools,” there is no

Establishment Clause violation. Id. at 650 (emphasis added);

see supra pp. 14723-26. As the Arizona tax credit program is

just as much a program of “true private choice” as the pro-

gram in Zelman, 536 U.S. at 649, the panel erred in reinstat-

ing the constitutional challenge.15

2

In rejecting Justice Souter’s position, the Zelman majority

also emphasized that he was asking the wrong question.

Rather than focusing narrowly on the challenged voucher pro-

gram, the majority explained that the “Establishment Clause

question is whether Ohio is coercing parents into sending

their children to religious schools, and that question must be

answered by evaluating all options Ohio provides Cleveland

schoolchildren, only one of which is to obtain a [voucher].”

Id. at 655-56. Because the Winn panel adopts Justice Souter’s

overly restrictive approach, rather than assessing “all options”

available to Arizona students, its result is similarly flawed.16

Indeed, the panel overtly limited its parental-choice inquiry

to “the range of educational choices the STO-administered

scholarship programs offer.” Winn, 562 F.3d at 1018. It “re-

ject[ed] the suggestion that the mere existence of the public

school system guarantees that any scholarship program pro-

vides for genuine private choice.” Id. While the latter state-

ment may be true, it is also something of a non sequitur. No

one claims the existence of a public school system grants a

15

For this reason, the Winn panel’s reliance on Committee for Public

Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973), is mis-

placed. See Zelman, 536 U.S. at 661-62.

16

Interestingly, the Supreme Court decided to italicize “all options” in

Zelman, and “government itself” in Amos. Maybe the justices thought

these requirements were important. Zelman, 536 U.S. at 655-56; Amos,

483 U.S. at 337.

14732 WINN v. ARIZONA CHRISTIAN SCHOOL

state license to ignore the Establishment Clause. The question,

as Zelman instructs, is whether Arizona is “coercing parents

into sending their children to religious schools,” a question

which must be answered by evaluating “all options” Arizona

provides its schoolchildren. 536 U.S. at 655-56.

The panel did not even engage in this inquiry. Had it done

so, it would have discovered that Section 1089 is but one of

a “range of educational choices” available to parents of

school-aged children. Id. at 655; see also Kotterman, 972 P.2d

at 611 (noting that the “Arizona Legislature has, in recent

years, expanded the options available in public education”

and listing some of those options). Arizona’s public schools

must provide for open enrollment, allowing parents to send

their children, tuition-free, to schools of their choice. Ariz.

Rev. Stat. Ann. § 15-816.01(A). Tax credits are available for

donations to public schools for “extracurricular activities or

character education.” Ariz. Rev. Stat. Ann. § 43-1089.01. An

extensive system of charter schools “provide[s] additional

academic choices for parents and pupils.” Id. § 15-181.17

Homeschooling is permitted and protected. Id. §§ 15-745,

802-03. Indeed, Section 1089 itself offers parents yet another

alternative: they can create their own STO and solicit dona-

tions for use at secular private schools. These alternative edu-

cational opportunities mirror those the Court took into

consideration in Zelman. See 536 U.S. at 655 (“Cleveland

schoolchildren enjoy a range of educational choices: They

may remain in public school as before, remain in public

school with publicly funded tutoring aid, obtain a scholarship

and choose a religious school, obtain a scholarship and choose

a nonreligious private school, enroll in a community school,

or enroll in a magnet school.”).18

17

Out of the 4,000 plus charters schools across the country, 478 are in

Arizona. See Arizona Charter Schools Association,

http://www.azcharters.org/pages/schools-basic-statistics (last visited July

25, 2009).

18

As the district court observed, parents are actually discouraged from

sending their children to private religious schools. “An Arizona student

WINN v. ARIZONA CHRISTIAN SCHOOL 14733

This is no Hobson’s choice. Far from “coercing” parents

into sending their children to religious schools, Arizona pro-

vides a wide variety of secular alternatives. “Any objective

observer familiar with the full history and context of [Section

1089] would reasonably view it as one aspect of a broader

undertaking . . . .” Id. at 655. By shutting its eyes to the host

of options available to Arizona parents, the panel’s opinion

directly conflicts with Zelman.19

B

As demonstrated by the foregoing arguments, the Arizona

program provides parents with “true private choice.” That

established, the panel’s discussion of taxpayer choice

becomes surplusage. Indeed, is its curious focus on “taxpayer

choice” an apt analogy at all? I suggest that Winn’s reliance

on Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982), is

utterly mistaken.

The thrust of the panel’s reasoning is that taxpayer choice

may attend any public school without cost . . . . In contrast, the average

scholarship paid by STOs in 2003 was $1,222, a sum unlikely to cover all

of the costs of private school attendance.” Winn, 361 F. Supp. 2d at 1121

(citations and footnote omitted); see also Zelman, 536 U.S. at 654

(“Families . . . have a financial disincentive to choose a private religious

school over other schools. Parents that choose to . . . enroll their children

in a private school . . . must copay a portion of the school’s tuition. Fami-

lies that choose a community school, magnet school, or traditional public

school pay nothing. [This] clearly dispel[s] the claim that the program

creates financial incentives for parents to choose a sectarian school.”

(internal quotation marks, alterations, and citation omitted)).

19

The concurrence argues that this reading of Zelman is inconsistent

with Nyquist. Concurrence at 14712-13. The Court invalidated the New

York tax program at issue in Nyquist because its tuition reimbursements

were designed “ ‘explicitly to offer . . . an incentive to parents to send their

children to sectarian schools.’ ” Zelman, 536 U.S. at 662 (quoting Nyquist,

413 U.S. at 782-83). As I have explained above, the plethora of choices

available to Arizona parents demonstrates that Section 1089 has no effect

of incentivizing religious schools over sectarian schools.

14734 WINN v. ARIZONA CHRISTIAN SCHOOL

is not a valid substitute for the parental choice allegedly at the

core of Zelman. I am not certain, however, that parental

choice was as central to the reasoning of Zelman as the panel

would have it. While that opinion does repeatedly refer to aid

“recipients,” see Winn, 562 F.3d at 1018 (listing citations), at

other times, it refers only to private, nongovernmental choice,

see, e.g., Zelman, 536 U.S. at 649 (describing programs where

“government aid reaches religious schools only as a result of

the genuine and independent choices of private individuals”);

id. at 655 (stating that “no reasonable observer” would find

government endorsement where “state aid reaches religious

schools solely as a result of the numerous independent deci-

sions of private individuals”). Significantly, Zelman seems

most concerned about preventing the state from reaching out

to “grant special favors that might lead to a religious estab-

lishment.” Id. at 652-53 (internal quotation marks and citation

omitted). So long as “favors” are doled out independent of

state action, the Establishment Clause—which again, prohib-

its the “government itself” from endorsing religion—is not

offended.

I further submit that under the endorsement test, any level

of attenuation between government action and aid to religion

necessarily reduces the likelihood that a “reasonable observ-

er” will find impermissible government approbation. There

can be no doubt that taxpayer choice contributes to that atten-

uation. Thus, the panel’s analysis of whether the choice Sec-

tion 1089 provides to taxpayers ensures that “ ‘the circuit

between government and religion was broken’ ” is beside the

point. Winn, 562 F.3d at 1021 (quoting Zelman, 536 U.S. at

652). The self-evident fact is that by “delegating” the choice

to taxpayers, the government already broke the circuit.

Nonetheless, the panel contends a reasonable observer

would consider two factors when deciding whether a program

of individual choice violates the Establishment Clause: the

“role the person making the choice occupies in the structure

of the program,” id. at 1020, and “whether the choice dele-

WINN v. ARIZONA CHRISTIAN SCHOOL 14735

gated . . . has the effect of promoting, or hindering, the pro-

gram’s secular purpose,” id. at 1021. Regarding the former,

the panel determined there was “no ‘effective means of guar-

anteeing’ ” that taxpayers would exercise their choice “ ‘ex-

clusively for secular, neutral, and nonideological purposes.’ ”

Id. at 1020 (quoting Larkin, 459 U.S. at 125). Parents, on the

other hand, have “incentives to apply the program’s aid based

on their children’s educational interests instead of on sectarian

considerations.” Id. at 1021. As for the latter, the panel con-

cluded that taxpayers thwarted the secular purpose of the stat-

ute insofar as their contributions narrowed the range of

available educational alternatives. Id. at 1022.

One could see how a reasonable observer in Larkin could

perceive government endorsement of religion from the “role

the [entity] making the choice” played in the scheme. Maybe

I am stating the obvious, but a large part of that perception

might rest on the fact that in Larkin, the state delegated legis-

lative authority—the ability to veto liquor licenses—to

churches. See 459 U.S. at 125. I say again: churches. Under

such circumstances it is completely unsurprising that a rea-

sonable observer would conclude that this “joint exercise of

legislative authority by Church and State provides a signifi-

cant symbolic benefit to religion in the minds of some.” Id.

at 125-26. To what pervasively sectarian organization has

Arizona “delegated” the choice at issue in this case? The Ari-

zona taxpayer.20 When perceived endorsement of religion is at

issue, state cooperation with churches is a far cry from state

cooperation with taxpayers.21

20

Additionally, the authority delegated in Larkin was absolute veto

power in an area of traditional government functioning. 459 U.S. at 125.

Here, each individual taxpayer exercises only a modicum of control over

the allocation of scholarship funds.

21

Board of Education of Kiryas Joel Village School District v. Grumet,

512 U.S. 687 (1994), does not support the panel’s analysis. In Larkin, leg-

islative authority was delegated to churches. In Kiryas Joel, the state cre-

ated a school district such that a particular religious group would have

“exclusive control of the political subdivision.” 512 U.S. at 698-99. Both

actions displayed overt religious bias. “Delegation” to the Arizona tax-

payer does not.

14736 WINN v. ARIZONA CHRISTIAN SCHOOL

Moreover, I disagree with the panel’s conclusion that par-

ents are somehow less motivated to promote religious objec-

tives than taxpayers generally. As anyone who has grown up

in a religious household will tell you, schooling decisions are

as frequently made on the basis of religious considerations as

they are on purely secular academic grounds. At the very

least, sectarian considerations factor into the equation of what

is in the child’s best interests educationally. Thus, whether it

resides with the taxpayer or the parent, once the choice is

made available, the state has no “effective means of guaran-

teeing” that it will be exercised “exclusively for secular, neu-

tral, and nonideological purposes.” Id. at 125 (internal

quotation marks and citation omitted). By contrast with

engaging in pseudo-psychological inquires into motivation,

under Zelman, we need only satisfy ourselves that the choice,

whatever it is, is made by a private actor, not by the govern-

ment.

With respect to taxpayers’ ability to “thwart” the secular

purpose of the statute, as discussed above, actors in any pro-

gram of true private choice will have this ability. See supra

pp. 14728-30. In Zelman, for example, the purpose of provid-

ing a broad range of educational opportunities was “thwarted”

by the decisions of neighboring public-school administrators

to decline program vouchers. See supra pp. 14729-30. The

goal could be similarly “thwarted” if secular private school

administrators decided to pull out of the program. See supra

pp. 14729-30—. An inherent reality of true private choice

programs cannot condemn Section 1089.

Ultimately, the panel appears to argue that Arizona’s

scheme is flawed because it essentially delegates to a private

entity something the state could not constitutionally achieve

by the exercise of its own powers; here, the promotion of reli-

gious education. See Winn, 562 F.3d at 1020; see also id. at

1021 (citing Norwood v. Harrison, 413 U.S. 455, 465 (1973)).

That may well be true, but as the panel’s own citation indi-

cates, for that to be the case, the state must somehow “induce,

WINN v. ARIZONA CHRISTIAN SCHOOL 14737

encourage or promote private persons to accomplish what it

is constitutionally forbidden to accomplish.” Norwood, 413

U.S. at 465 (emphases added). At the risk of beating a dead

horse, I repeat that the state here has done nothing to cajole

parents, STOs, or taxpayers into supporting religious educa-

tion. The state has simply said, if you donate to the STO of

your choice, you get a tax credit. Such action in no way

induces, encourages, or promotes private parties to aid reli-

gion.22

IV

The panel also holds that plaintiffs have alleged facts sug-

gesting Section 1089 was not “enacted for . . . [a] valid secu-

lar purpose.” Winn, 562 F.3d at 1011 (internal quotation

marks and citation omitted). The panel reaches this conclu-

sion despite conceding that the statute is facially neutral with

respect to religion. See id. at 1011-12. Nothing in the legisla-

tive history suggests that the driving force behind the bill was

anything other than the desire to provide “equal access to a

wide range of schooling options for students of every income

level.” Id.; see also Mueller, 463 U.S. at 395 (“A state’s deci-

sion to defray the cost of educational expenses incurred by

parents—regardless of the type of schools their children

attend—evidences a purpose that is both secular and under-

standable.”). Nonetheless, the panel maintains that plaintiffs

could prove, based on how Section 1089 operates in practice,

that this “secular and valid” purpose is a sham. Winn, 562

F.3d at 1011-12.

From its citation to McCreary County v. ACLU, 545 U.S.

22

The concurrence asserts that “[t]he effect of these taxpayer choices . . .

may be to harm the ability of aspiring scholarship recipients to obtain a

scholarship available for use at a secular school.” Concurrence at 14716.

I fail to see how Section 1089—which permits tax deductions for gifts to

both religious and secular scholarship funds—harms a student’s ability to

obtain a scholarship to a secular school.

14738 WINN v. ARIZONA CHRISTIAN SCHOOL

844 (2005), the panel seems to argue that the very enactment

of Section 1089 “bespoke” a religious purpose. Winn, 562

F.3d at 1012. But how can this be so? McCreary does say that

government action can be so “patently religious” that its non-

secular nature is evident. 545 U.S. at 862. The examples pro-

vided, however, are situations where the state mandated Bible

study, the teaching of creationism, and prayer in schools. Id.

at 862-63. Setting up a tax credit program to provide scholar-

ships to children generally is hardly of the same ilk.

To the extent the panel claims that the manner in which

Section 1089 has been implemented reveals the stated secular

purpose to be a sham, their arguments are similarly unpersua-

sive. First, the Supreme Court has recognized that a “legisla-

ture’s stated reasons will generally get deference,” deference

only abandoned in “those unusual cases where the claim was

an apparent sham.” Id. at 864-65. Nothing in the plaintiffs

allegations suggest this is one of those “unusual cases,” and

as setting up a tax credit program is not a “patently religious”

act, there is nothing “apparent” about any purported sham.

Second, the implementation inquiry centers on actions taken

by the government. See id. at 862 (stating that the inquiry

turns on the “traditional external signs that show up in the

text, legislative history, and implementation of the statute, or

comparable official act”) (internal quotation marks and cita-

tions omitted); id. at 870-74 (questioning the government’s

newly proffered purposes after it altered a Ten Command-

ments display in an attempt to mitigate previously stated sec-

tarian purposes). Here, the alleged impropriety arises from

taxpayer, not government action. Third, the panel’s holding

turns on plaintiff’s allegation that “in practice STOs are per-

mitted to restrict the use of their scholarships to use at certain

religious schools.” Winn, 562 F.3d at 1012. But that result is

apparent from the statute itself, which is satisfied so long as

STOs provide scholarships to two or more schools, see supra

note 5, a fact plaintiffs themselves recognize in their com-

WINN v. ARIZONA CHRISTIAN SCHOOL 14739

plaint. That an STO may independently decide to limit its

scholarships does not make a religious purpose “apparent.”23

Ultimately, the crux of the panel’s purpose holding turns on

matters previously discussed under the effects prong: a non-

secular purpose could be inferred from the fact that, at a given

moment, the bulk of scholarship money is available only for

use at religious schools. But as detailed above, money flows

to religious institutions entirely at the whim of nongovern-

mental actors: taxpayers or STOs. The legislature could

hardly have had the “purpose” of endorsing religion when it

set up a plan that, for all it knew, could have resulted in abso-

lutely no funding for religious entities. See supra pp.

14723-26. This moving target is irrelevant to the Establish-

ment Clause inquiry. See supra pp. 14727-31.

V

The layer upon layer of private choice built into this pro-

gram ensures that “the circuit between government and reli-

gion [is] broken.” Zelman, 536 U.S. at 652. Try as it may, the

panel cannot complete such circuit. Ultimately, nothing in the

panel opinion grapples with the fact that Arizona does nothing

to encourage, to promote, or otherwise to incentivize private

actors to direct aid to religious schools. Nothing explains how

“the government itself has advanced religion through its own

activities and influence.” Amos, 483 U.S. at 337. Nothing

points to any “evidence that the State deliberately skewed

incentives toward religious schools.” Zelman, 536 U.S. at 650

(emphasis added). Nothing shows how Section 1089 enables

Arizona to “grant special favors that might lead to a religious

establishment.” Id. at 652-53 (internal quotation marks and

citation omitted).

23

Additionally, any inquiry into purpose must look at context. See

McCreary, 545 U.S. at 862, 864, 866. As discussed above, Section 1089

was enacted amidst a broader effort to increase alternative educational

opportunities. See supra pp. 14730-33; see also Kotterman, 972 P.2d at

611.

14740 WINN v. ARIZONA CHRISTIAN SCHOOL

But the three-judge panel can hardly be faulted for these

omissions: it cannot manufacture what does not exist.24 What

does exist is a tax credit system that relies entirely on private

choice. Individuals choose to create an STO. STOs choose to

limit their funds to certain schools. Taxpayers choose to

donate. Parents choose to apply for scholarships. In truth,

everyone in Arizona has a choice—everyone except the gov-

ernment. No reasonable observer would think this lengthy

chain of choice suggests the government has endorsed reli-

gion.

Because the three-judge panel’s decision strays from estab-

lished Supreme Court precedent, and because it jeopardizes

the educational opportunities of thousands of children who

enjoy the benefits of Section 1089 and related programs

across the nation, I must respectfully dissent from our court’s

regrettable failure to rehear this case en banc.

24

Cf. Compassion in Dying v. Washington, 85 F.3d 1440, 1446-47 (9th

Cir. 1996) (Trott, J., dissenting from denial of rehearing en banc) (“No

magician—not David Copperfield, not even Harry Houdini—can produce

a rabbit from a hat unless the rabbit is in the hat to begin with. Moreover,

if a hat does not contain such an animal, a magician cannot claim that any-

thing he is able to produce from it is in fact a rabbit, no matter how sincere

he may be or how great his forensic skills. All of this has something to do

with basic physics.”).

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