As a lawyer, you appreciate that there’s often more than one way of looking at a case. You routinely see assessments you don’t agree with, but you can see how a reasonable legal analyst could come to a different conclusion.
Then you have the New York Times. Occasionally they write something so off the wall that you wonder if the writer has a law degree. They did it after the 2008 case D.C. v. Heller, which held—as 75% of Americans believe—that the Second Amendment secures an individual right to keep and bear arms, and so government cannot completely ban a law-abiding citizen from having a handgun in his home.
The Times was horrified, arguing that the Constitution saying “the right of the people to keep and bear arms shall not be infringed” somehow does not mean anyone has the right to have a gun, and calling the Court’s decision “a radical break” from precedent.
Now they’re apoplectic over the Supreme Court’s recent decision dismissing an ACLU lawsuit against an Arizona Christian School Tuition Organization. As I wrote for the Examiner, this holding in the recent Winn case correctly applied Supreme Court precedent on who has standing to sue in federal court when they have suffered no personal injury.
The case said the plaintiffs lacked standing to challenge a tax credit offered to people who donate to tuition organizations for private schools—religious or secular. Their decision was perfectly consistent with a truly bad decision from 1968, Flast v. Cohen, holding taxpayers could sue for alleged Establishment Clause violations if the government spends money on religion.
The Times says of Winn that it “all but overrules” Flast. In reality, it leaves Flast exactly where it was. Justice Kagan dissented in an opinion that is so broad that it would render unconstitutional the tax deduction you receive for donating to churches or other religious 501(c)3’s. NYT hailed that dissent.
It’s revealing that the New York Times never addressed the extremely-disturbing point that revoking that deduction would crush tens of thousands of churches. The only question is whether they just didn’t understand the implications of Kagan’s dissent, or if instead they share the view that donations should not be deductable, but don’t want to announce the fact to their readers.