A Recipe for Making Up The Law

Published June 1, 2000

Do U.S. Supreme Court Justices always think logically? Not according to school choice opponents who challenged Illinois’ 1999 education tax credit law on behalf of Barbara B. Toney and others.

The Illinois Education Association and various other organizations filed suit last year in Sangamon County Circuit Court, charging that the state’s 1999 tax credit law violated four provisions of the Illinois Constitution. In responding to this challenge, the defendants pointed out that the U.S. Supreme Court had upheld a similar Minnesota tax deduction law in Mueller v. Allen (1983), finding that the deduction satisfied the three-pronged Lemon constitutionality test in terms of purpose, effect, and implementation.

Applying the Lemon test, the U.S. Supreme Court found that the Minnesota law had a secular legislative purpose; that its principal effect was neither to advance nor inhibit religion; and that it did not foster excessive entanglement between government and religion. Since the Minnesota deduction was available to parents of both private and public school students, the Court found the fact that more private school families took advantage of the program was a matter of parental choice.

The plaintiffs in the Illinois Toney case argued that the U.S. Supreme Court ruling in Mueller was “badly reasoned.” Sangamon County Circuit Court Judge Thomas Appleton disagreed, noting that accepting plaintiffs’ argument would “permit the thousands of individual trial court judges throughout the nation to make up the law they may like as they go.” He refused to engage in such an exercise.