...The Rulers who are guilty of such an encroachment [ against separation of church and state ], exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves.
...Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever? ~ James Madison, author of the First Amendment and of Memorial and Remonstrance
That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness... ~ Thomas Jefferson, The Virginia Statute for Religious Freedom
...all civil states with their officers of justice in their respective constitutions and administrations are proved essentially civil, and therefore not judges, governors, or defenders of the spiritual or Christian state and worship.
...they say that the civil power may erect and establish what form of civil government may seem in wisdom most meet, I acknowledge...that a civil government is an ordinance of God...
But from this grant I infer...that the sovereign, original, and foundation of civil power lies in the people... And, if so, that a people may erect and establish what form of government seems to them most meet for their civil condition...
And, if so, that the magistrates receive their power of governing the church from the people, undeniably it follows that a people...have...a power to govern the church, to see her do her duty, to correct her, to redress, reform, establish, etc. And if this be not to pull God and Christ and Spirit out of heaven, and subject them unto natural, sinful, inconstant men, and so consequently to Satan himself, by whom all peoples naturally are guided, let heaven and earth judge... ~ Roger Williams, A Plea for Religious Liberty
In November, 1969 a case was argued before the Supreme Court in which the appellant, Frederick Walz, sought to prevent the state of New York from exempting churches from taxation. Walz lost his case, and as a consequence it became law in the United States, that religious organizations should be exempted from paying taxes. The Chief Justice in the Case, Warren Burger ( of the famed "Warren Court" ), argued the majority decision this way:
It is sufficient to note that, for the men who wrote the Religion Clauses of the First Amendment, the "establishment" of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity. In England, and in some Colonies at the time of the separation in 1776, the Church of England was sponsored and supported by the Crown as a state, or established, church; in other countries, "establishment" meant sponsorship by the sovereign of the Lutheran or Catholic Church...The exclusivity of established churches in the 17th and 18th centuries, of course, was often carried to prohibition of other forms of worship...
The Establishment and Free Exercise Clauses of the First Amendment are not the most precisely drawn portions of the Constitution. The sweep of the absolute prohibitions in the Religion Clauses may have been calculated, but the purpose was to state an objective, not to write a statute. In attempting to articulate the scope of the two Religion Clauses, the Court's opinions reflect the limitations inherent in formulating general principles on a case by-case basis. The considerable internal inconsistency in the opinions of the Court derives from what, in retrospect, may have been too sweeping utterances on aspects of these clauses that seemed clear in relation to the particular cases, but have limited meaning as general principles.
The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a ... logical extreme, would tend to clash with the other.
Justice Berger thus argues, in strict contradiction to the logic of religious freedom as expressed by its Constitutional author and his direct influences, that the state "[ may ] force a citizen to contribute three pence only of his property for the support of any one establishment," and that it may "compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors", even to " [ deprive ] him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness...". He does this on the basis that the "utterances on...these clauses...have limited meaning" and "tend to clash" with each other.
There are a number of key aspects of Berger's decision, which beyond the questionable legal view of these Constitutional "utterances" include arguments from finance, from history, from jurisprudence, and reason. The financial argument is perhaps the most transparently false and misleading argument he makes, where he claims:
The legislative purpose of the property tax exemption is neither the advancement nor the inhibition of religion; it is neither sponsorship nor hostility...It ... has not singled out one particular church or religious group, or even churches as such; rather, it has granted exemption to all houses of religious worship ...The State has an affirmative policy that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest...
and, having argued that exemptions neither advance nor inhibit religion, goes on to say
Granting tax exemptions to churches necessarily operates to afford an indirect economic benefit, and also gives rise to some, but yet a lesser, involvement than taxing...Obviously a direct money subsidy would be a relationship pregnant with involvement and, as with most governmental grant programs, could encompass sustained and detailed administrative relationships for enforcement of statutory or administrative standards, but that is not this case...
...The grant of a tax exemption is not sponsorship, since the government does not transfer part of its revenue to churches, but simply abstains from demanding that the church support the state...The exemption creates only a minimal and remote involvement between church and state, and far less than taxation of churches. It restricts the fiscal relationship between church and state, and tends to complement and reinforce the desired separation insulating each from the other.
We tend to view the pronouncements of the Supreme Court as being not only definitive, but carefully elucidated, reasoned, and generally coherent if not necessarily agreeable. Americans do not, as a rule, consider the quality of jurisprudence in this regard so much as they side with or against its outcome. This is perhaps the opposite of the apolitical purpose to which the Court is supposedly dedicated, which should above all rely on the quality of its argument to mandate its conclusion. This being the case, it seems straightforward that those decisions which have no such mandate, for which the legal reasoning is weak or spurious or even in contradiction to the facts, ought not be considered prudential but entirely political and thus a questionable ruling especially in terms of stare decisis, or legal precedence.
I think Justice Burger's majority opinion fails to satisfy the test of a reasoned, coherent conclusion arrived at by a process of law rather than by political exigency. His financial argument is only the most obvious failure: it claims simultaneously that tax exemptions are and are not financially supportive of religion, that it does not represent the state transferring revenue to churches - just try arguing that before the IRS and see how far it gets you - and that "direct money" would be a clear violation of the First Amendment, when in fact the only sense in which tax exemptions are not a "direct" payment is in Congressional parlance - not law, not finance, and certainly not in practical effect. Further, the supposition that exempting churches from the same responsibilities owed by all other citizens somehow represents a lesser involvement by the state is to fundamentally oppose the idea of religious freedom as expressed by Jefferson, Madison, Locke, and Williams. Indeed, Burger's finding absolutely contradicts the very argument Madison made which won religious liberty its place in the Constitution, where such a law " violates equality by subjecting some to peculiar burdens, so it violates the same principle, by granting to others peculiar exemptions."
Q U E S T I O N S :
1) Would you consider it a gift if your landlord or mortgage holder forgave you your rent for a given period? Would you have extra money in your account you might not have had otherwise? Would the landlord have less than he might have otherwise had?
2) If the answer to 1) is "yes", then on what basis can tax exemptions not be considered support for religion?
3) If such exemptions are support, and if the vast majority of churches which receive them are Christian in religion, then is this not " sponsorship, financial support, and active involvement of the sovereign in religious activity"? Does this not meet Burger's own definition of the violation of the Establishment Clause?
R E F E R E N C E S :
James Madison, Memorial and Remonstrance Against Religious Assessments
Thomas Jefferson, A Plea for Religious Liberty
John Locke, A Letter Concerning [ Religious ] Toleration
Justice Warren Burger, Walz Majority Decision
B&B orig: 12/15/18
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