The denial of en banc review however produced 40-pages of opinions. Eight judges joined in Judge O'Scannlain's 23-page dissent. He wrote in part:
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 legislative efforts in four states within our circuit to create similar programs. 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.....Responding with their own 17-page opinion, the three judges on the original panel (with a fourth indicating agreement) argued that "the program alleged here neither makes scholarships available to parents on a religiously neutral basis nor gives them a true private choice as to where to utilize the scholarships." Giving to taxpayers the choice of allocating their contributions to religious schools was not enough to break the circuit between government and religion. AP reports on the decision. [Thanks to Bob Ritter for the lead.]
I am at a loss to understand how a reasonable 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.....
UPDATE: The Institute for Justice Arizona Chapter which supports the tax credits and represents several clients in the case says it will seek Supreme Court review of the 9th Circuit's decision. The Arizona Attorney General's office has not yet decided whether it too will appeal to the Supreme Court. (Arizona Republic, Oct. 22).
