Last week, when the 24-hour news cycle was obsessing about the possibility of a government shutdown, the Supreme Court handed down a little-noticed and horrendous 5-4 decision that encourages states to provide tax support for religious schools by the back door if the front door is constitutionally closed. In Arizona Christian Tuition Organization v. Winn, the court ruled that taxpayers have no standing to challenge tax credits, exemptions or deductions that support religious organization or schools. Taxpayers only have the right to sue on constitutional grounds if government officials directly appropriate state money for religious institutions or activities.

Here’s how the Arizona State Legislature got around its own state constitution, which has strong provisions barring the use of public funds by religious institutions. In 1997, legislators established a program allowing taxpayers to contribute to “school-tuition organizations” (STOs), which then use the money to pay for the tuition of students whose parents make such “donations.” The parents are then reimbursed by the state with a 100 percent tax credit for every dollar donated to an STO. Here is welfare for parents who would otherwise have to pay the entire cost of their children’s private school tuition.

In 2009, 91.4 percent of STO donations went to religious schools. Since 1997, Arizona has lost $349 million in tax revenue—which could have been spent on the state’s beleaguered public schools—as a result of this sleazy back-door subsidy for religion.

The high court overturned a ruling that has stood since 1968, Flast v. Cohen, in which the Warren court, while recognizing the general principle that taxpayers cannot sue the government simply because they object to the way the state is spending money, specifically made an exception for constitutional issues involving basic principles such as the First Amendment’s establishment clause.

Justice Anthony Kennedy, who has increasingly joined the Four Horsemen (Roberts-Alito-Thomas-Scalia), who never encountered a religious entanglement with government that they didn’t like, argued that full tax credits for religion were constitutional because the money “has not come into the tax collector’s hands.” In other words, support for religious schools would be unconstitutional if the state paid the school directly, but it becomes constitutional if the state gives the money back to the parent who has already “donated” a child’s tuition. The parent giveth to religion, and the state giveth to the parent.

Justice Elena Kagan, in a brilliant dissent, gave specific examples of the spurious nature of this logic. “Suppose a state desires to reward Jews—by, say, $500 per year—for their religious devotion,” she wrote. “Would it matter to taxpayers offended by the practice whether the reward came in the form of a government stipend or a tax credit?”

She then offered another theoretical example of a government that wished to subsidize the ownership of crucifixes by purchasing them in bulk and directly distributing them; reimbursing crucifix buyers with a check; or giving them a tax credit after they buy the crucifixes. “Now really, do taxpayers have less reason to complain if the state selects the last of these three options?” she asked.

Kagan is entirely right and the court majority is entirely wrong. As Alex J. Luchenitser, senior litagation counsel for Americans United for Separation of Church and State, observes, “One need not have a very active imagination to see how easily this ruling will allow government bodies to circumvent the constitutional principle that the government should not provide financial support to religious institutions.”

What’s particularly appalling about this decision is that it offers a blueprint to states that, until now, have been prevented from enacting voucher programs for religious schools by constitutional provisions. Many of these provisions date from the 19th century, preventing any state expenditures for religious education. More than two-thirds of states now have such provisions. If they follow the court’s directions, all the states have to do now—if their governments are controlled by people with no respect for the separation of church and state—is enact a tax credit program. State support for religious schools has been a goal of the Roman Catholic Church in America since the mid-nineteenth century and the Catholic hierarchy has been joined during the past 40 years by right-wing Protestants and many (though not all) Orthodox Jews. According to public opinion polls, the majority of American Jews remain strongly opposed to government involvement in religion, including religious schools.

To top off the good news, the Obama administration’s Justice Department, when the case was argued last November, supported the Arizona tax credit program. Although the issue in the Winn case is support for overtly religious private schools, the Justice Department’s backing of Arizona’s tax credit is certainly is in line with the president’s strong, and I believe fundamentally misguided, endorsement of charter schools. Even though charter schools are nominally public, they amount to—because they are privately managed—a privatized alternative that diverts money from public education. Obama simply does not seem to care that evidence, thus far, does not support the belief that charter school students perform better than students in ordinary public schools.

What is even more baffling for a former constitutional law professor is that Obama does not seem concerned about the fundamental disregard for the separation of church and state at the heart of Arizona’s back-door attempt to support private religious schools. Obama began his presidency with an explicit assertion of respect for secular Americans that no other president has ever offered. One can only wonder whether the relentless far-right campaign to portray him as a secret Muslim has made him reluctant to do battle with any aspect of the right-wing religious agenda.