As in prior cases involving government and religion, the justices appear to be deeply split. The court’s liberals generally are highly suspicious of interactions between government and religion, while the conservatives are less suspicious.
When Bender made his point about tax credit money being government money, several conservative justices challenged the assertion.
“That is a great leap,” Justice Antonin Scalia said. “Any money the government doesn’t take from me because it gives me a deduction is government money?”
Bender said there is a difference between a tax deduction which is made with the taxpayer’s own money and a tax credit, which merely reduces the total amount already owed on a tax bill. “Here the taxpayer owes that money to the government,” Bender said.
“The money in this case is not a charitable contribution,” he added.
“This is a very important philosophical point here,” Justice Samuel Alito said. “You think that all the money belongs to the government except to the extent that it deigns to allow private people to keep some of it?”
“No,” Bender replied. He said if the tax credit is taken from money already due, any donation to the tuition program is a payment with government funds.
Justice Anthony Kennedy, a potential decisive vote in the case, said he had “some difficulty” with the idea that an individual spending money the government doesn’t take as a tax is nonetheless still government money.