* Assistant Professor, Notre Dame Law School. The author thanks Anthony Bellia, Patricia Bellia, Nicole Stelle Garnett, Dean John Garvey, Marci Hamilton, Steffen Johnson, Tom Shaffer, and Steven Smith for their comments and suggestions; Fred Marczyk and Diane Meyers for their usual helpful research assistance; and the staff of the Boston College Law Review—particularly Michael Marcucci, Christopher Morrison, Angela Campbell, Michael Dube, and John Gordon—for their hard work and patience.
1 Mohandas K. Gandhi, The Words of Gandhi 76 (Richard Attenborough ed. 1982) (quoted in Daniel J. Morrissey, The Separation of Church and State: An American-Catholic Perspective, 47 Cath. U. L. Rev. 1, 1 (1997)).
2 G. K. Chesterton, Irish Impressions 215 (1919).
3 17 U.S. (4 Wheat.) 316, 327 (1819); see also Murdock v. Pennsylvania, 319 U.S. 105, 112 (1943) (“The power to tax the exercise of a privilege is the power to control or suppress its enjoyment.”). Cf. Panhandle Oil Co. v. Knox, 277 U.S. 218, 223 (1928) (Holmes, J., dissenting) (“[T]his Court . . . can defeat the attempt to discriminate or otherwise go too far without wholly abolishing the power to tax. The power to tax is not the power to destroy while this Court sits.”).
4 Graves v. New York ex rel. O’Keefe, 306 U.S. 466, 489 (1939) (Frankfurter, J., concurring) (observing that “the intellectual fashion of the times indulged a free use of absolutes”).
5 Stephen L. Carter, The Free Exercise Thereof, 38 Wm. & Mary L. Rev. 1627, 1639 (1997) (“It is the application of force, not the happenstance that one is able to apply it with legitimate authority, that generates the power that destroys the specialness of religion.”).
6 26 U.S.C. § 501(c)(3) (1986). It should be noted that section 501(c)(3) is only the tip of a monstrous iceberg of tax law that affects churches. It is also one of several provisions that regulates their assertedly political activities. See Deirdre Dessingue Halloran & Kevin M. Kearney, Federal Tax Code Restrictions on Church Political Activity, 38 Cath. Law. 105, 106 & n. 3 (1998).
The history of the restrictions contained in this provision is fascinating. It appears they were adopted after almost no discussion in Congress, to advance no stated public purpose or policy, other than the silencing of then-Senator Lyndon B. Johnson’s political enemies. See generally, e.g., Anne Berrill Carroll, Religion, Politics, and the IRS: Defining the Limits of Tax Law Control on Political Expression by Churches, 76 Marq. L. Rev. 217, 228 (1992); Randy Lee, When a King Speaks of God; When God Speaks to a King: Faith, Politics, Tax-Exempt Status, and the Constitution in the Clinton Administration, 63 Law & Contemp. Probs. 391, 392 (2001); Patrick O’Daniel, More Honored in the Breach: A Historical Perspective of the Permeable IRS Prohibition on Campaigning for Churches, 42 B.C. L. Rev. 733 (2001).
7 See John Witte, Jr., Tax Exemption of Church Property: Historical Anomaly or Valid Constitutional Practice?, 64 S. Cal. L. Rev. 363, 414–15 (1991) (“To give the state the power to tax the church would for many be tantamount to giving it the power to destroy the church.”). Cf. Rex W. Huppke, Church leaders See Seizure as First Domino, The South Bend Trib., Dec. 17, 2000, at D10 (describing 16 year tax dispute between the United States and the Indianapolis Baptist Temple and the resulting seizure of the Temple’s building, and quoting its minister as saying, “[t]he church cannot be destroyed”).
8 This is an intimidating area, and I have learned a great deal from, for example, Eric J. Ablin, The Price of Not Rendering to Caesar: Restrictions on Church Participation in Political Campaigns, 13 Notre Dame J. L. Ethics & Pub. Pol’y 541, 541 (1999); Anne Berrill Carroll, supra note 6; Edward McGlynn Gaffney, Jr., On Not Rendering to Caesar: The Unconstitutionality of Tax Regulation of Activities of Religious Organizations Relating to Politics, 40 DePaul L. Rev. 1, 1 (1990); Halloran & Kearney, supra note 6; and Lee, supra note 6; and Glenn Goodwin, Note, Would Caesar Tax God? The Constitutionality of Governmental Taxation of Churches, 35 Drake L. Rev. 383, 383 (1985/1986).
9 See, e.g., Walz v. Comm’r, 397 U.S. 664, 664 (1970); Robert E. Rodes, Jr., The Last Days of Erastianism: Forms in the American Church-State Nexus, 62 Harv. Theo. Rev. 301, 317 (1969) (“Churches have been wholly or partially exempt from secular taxes since the time of Constantine at least; only the most rigorous ideologues feel that such exemption violates state or federal constitutional provisions.”). Some argue that the First Amendment, rightly understood, requires the tax exemption. See, e.g., Goodwin, supra note 8, at 384 (arguing that “exemption of churches from taxation is not merely constitutionally-permissible, it is constitutionally-required”). Cf. Everson v. Bd. of Educ., 330 U.S. 1, 11 (1947) (“The people [in Virginia], as elsewhere, reached the conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group.”).
10 For more on these arguments, and the related claim that the prohibition on putatively political activities by churches burdens is an unconstitutional condition on their tax-exempt status, see, for example Carroll, supra note 6, at 254–56; Gaffney supra note 8, at 35–39. See generally Steffen N. Johnson, Of Politics and Pulpits: A First Amendment Analysis of IRS Restrictions on the Political Activities of Religious Organizations, 42 B.C. L. Rev. 875 (2001). But see, e.g., Jimmy Swaggart Ministries v. Bd. of Equalization, 493 U.S. 378, 380 (1990) (holding that California did not violate the First Amendment by imposing sales and use tax liability on the sale of “religious materials” by religious organization); Branch Ministries v. Rossotti, 211 F.3d 137, 142–43 (D.C. Cir. 2000) (noting that church whose tax-exempt status had been revoked failed to demonstrate that its “free exercise rights ha[d] been substantially burdened”).
11 See Santa Fe Indep. School Dist. v. Doe, 530 U.S. 290, 310 (2000) (noting that the “transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere”) (quoting Lee v. Weisman, 505 U.S. 577, 589 (1992)); see also Lemon v. Kurtzman, 403 U.S. 602, 614 (1971) (“The objective is to prevent, as far as possible, the intrusion of either into the precincts of the other.”).
12 See generally Richard W. Garnett, The Story of Henry Adams’s Soul: Education and the Expression of Associations, 85 Minn. L. Rev. 1841, 1849–56 (2001) (discussing role of religious and other mediating institutions in forming persons and shaping values).
13 121 S. Ct. 2093 (2001).
14 For a fascinating discussion of a similar problem in a different context, see Tuan N. Samahon, Note, The Religion Clauses and Political Asylum: Religious Persecution Claims and the Religious Membership-Conversion Imposter Problem, 88 Geo. L.J. 2211 (2000) (discussing the United States’s efforts to detect fraudulent conversions by persons seeking asylum).
15 Gerard V. Bradley, Dogmatomachy: A “Privatization” Theory of the Religion Clause Cases, 30 St. Louis U.L.J. 275, 277 (1986).
16 See Bradley, supra note 15, at 276–77 (“The Court is now clearly committed to articulating and enforcing a normative scheme of ‘private’ religion.”). But see Richard S. Myers, The Supreme Court and the Privatization of Religion, 41 Cath. U. L. Rev. 19, 22 (1991) (arguing that “Bradley’s argument overstates the success of the privatization thesis in influencing First Amendment doctrine”).
17 See generally, e.g., Symposium, Legal and Constitutional Implications of the Calls to Revive Civil Society, 75 Chi.-Kent L. Rev. 289 (2000) [hereinafter Symposium].
18 And, as Thomas More put it in The Man for All Seasons, “[do we] really think [we] could stand upright in the winds that would blow then?” Robert Bolt, A Man for All Seasons 66 (Vintage Int’l 1990) (1960).
19 Cf., Good News, 121 S. Ct. at 2111 n.3 (Scalia, J., concurring) (“We have drawn a . . . distinction . . . between religious speech generally and speech about religion—but only with regard to restrictions the State must place on its own speech, where pervasive state monitoring is unproblematic.”). Relatedly, courts considering free-exercise claims are required, as a matter of course, to determine the sincerity, though of course not the merits, of claimants’ religious beliefs. See, e.g., Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 714 (1981) (“The determination of what is a religious belief or practice is more often than not a difficult and delicate task. . . . However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”).
20 See, e.g., Bush Salutes NCAA Champions, A.P. Online, Apr. 23, 2001, available at 2001 WL 18930977 (“President Bush saluted NCAA basketball champs from Duke and Notre Dame at the White House Monday.”).
21 26 U.S.C. § 501(c)(3) (1986). It could be objected here that for government to label as “political” (or as “propaganda” or “campaigning”) a religious communities’ expression or activity is not, in fact, to say that such expression or activity is not or no longer religious. In other words, the conditional-exemption scheme does not invite government to distinguish religious from political speech, or the religious from the political sphere; it simply requires government, for its own limited purposes, and not as the truth of the matter, to identify certain conduct or expression as—whatever else it may be—also “political.” This is an important point—one that could reasonably be raised at many points in this Article—and I thank my colleagues Patricia Bellia and Nicole Stelle Garnett for raising it.
In response, it strikes me that while it is true that the government labeling required by the exemption scheme could be treated not as an “either/or,” “religious or political?” but as more of a “but also” determination, it is in fact regarded, by government, churches, and the public, as the latter. See, e.g., Press Release, Roman Catholic Archdiocese of Philadelphia Should Drop Plan to Produce Voter Guides, Says Americans United (Mar. 31, 1999), available at http://www.au.org/press/pr331922.htm (last visited May 14, 2001) (quoting Rev. Barry Lynn’s statement that “[c]hurches must stay out of partisan politics” because “it runs counter to the mission of America’s faith communities”). I would also respond by insisting that even a “but also” determination by government sends the message, and endorses the view, that religious faith is a private matter, for the private sphere, and ought not (for any number of reasons) insert itself into politics. As I discuss in more detail below, I am troubled by the implications and effects of this message.
22 Cf. Presbyterian Church v. Mary Elizabeth Blue Hull Mem. Presbyterian Church, 393 U.S. 440, 450 (1969) (noting that the Constitution “forbids civil courts from playing . . . a role” in “the interpretation of particular church doctrines”); United States v. Ballard, 322 U.S. 78, 95 (1944) (Jackson, J., dissenting) (“I would dismiss the indictment and have done with this business of judicially examining other people’s faiths.”).
23 Legislative Activity By Certain Types of Exempt Organizations: Hearings Before the House Ways and Means Committee, 92d Cong., 2d Sess. 99, 305 (1972) (quoted in Gaffney, supra note 8, at 20).
24 Romero (Vidmark /Trimark 1989).
25 Cf. Stephen L. Carter, The Culture of Disbelief 147 (1993) (“[I]f the state is able to manipulate the content of religious doctrine through its power to extend or deny the favored tax treatment, then religions are already well down the road to compromising their autonomy.”); Thomas L. Shaffer, Faith Tends To Subvert Legal Order, 66 Fordham L. Rev. 1089, 1089 (1998) (“Faith must always resist acculturation, or it will have nothing to say to the world or to the culture.”) (quoting John F. Kavanaugh, The Word Encountered 8 (1996)).
26 26 U.S.C. § 501(c)(3)(1986). See generally, e.g., Branch Ministries v. Rossotti, 211 F.3d 137, 139–40 (D.C. Cir. 2000) (outlining religious organizations’ tax status).
27 Ablin, supra note 8, at 547 (“Since the first modern internal revenue law in 1913, churches have been tax exempt.”). The States have, by and large, followed a similar course. See, e.g., Goodwin, supra note 8, at 383 (“All fifty states and the federal government have statutory provisions exempting churches from various forms of taxation.”) (citing P. Ferrara, Religion and the Constitution: A Reinterpretation 53 (1983)); see also Walz v. Comm’r, 397 U.S. 664, 676 (1970) (“All of the 50 States provide for tax exemption of places of worship, most of them doing so by constitutional guarantees. For so long as federal income taxes have had any potential impact on churches—over 75 years—religious organizations have been expressly exempt from the tax.”). See generally, Bruce R. Hopkins, The Law of Tax-Exempt Organizations (6th ed. 1992) (discussing the history of charitable organizations’ tax exemptions).
28 Rodes, supra note 9, at 317. Cf. Rosenberger v. Rectors & Visitors of the Univ. of Va., 515 U.S. 819, 859 (1995) (Thomas, J., concurring) (noting that property-tax exemptions “have been in place for over 200 years without disruption to the interests represented by the Establishment Clause”). For a more detailed discussion, see generally Johnson, supra note 10.
29 26 U.S.C. § 170(a)(1984).
30 Thomas L. Shaffer, Erastian and Sectarian Arguments in Religiously Affiliated American Law Schools, 45 Stan. L. Rev. 1859, 1865 (1993) (noting that, in the Erastian view of the Church—named for a 16th century Swiss physician—the Church “contributes its human and material resources to the goals of the state, and also acts as a religious witness to public discussion of moral issues. It prays for the foreign policy of the state; it blesses the army’s tanks in time of war; and it carries the national flag in its liturgical processions.”). See generally, e.g., Rodes, supra note 9.
31 See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 13 n.2 (1989) (noting that, in Walz, “the State might reasonably have determined that religious groups generally contribute to the cultural and moral improvement of the community, perform useful social services, and enhance a desirable pluralism of viewpoint and enterprise, just as do the host of other nonprofit organizations that qualified for the exemption”); id. at 12 (observing that the exemption at issue in Walz “possessed the legitimate secular purpose and effect of contributing to the community’s moral and intellectual diversity and encouraging private groups to undertake projects that advanced the community’s well-being and that would otherwise have to be funded by tax revenues or left undone”).
32 See Carter, supra note 25, at 147–52 (1993) (describing the “tradeoff” between the exemption for churches and the restrictions on their “political” activities as a “Faustian bargain”); Joseph S. Klapach, Note, Thou Shalt Not Politic: A Principled Approach to Section 501(c)(3)’s Prohibition of Political Campaign Activity, 84 Cornell L. Rev. 504, 505 (1999) (“Before a charity can save the world, enlighten the masses, or promote spiritual harmony, it first must make a deal with the devil.”).
33 See Gaffney, supra note 8, at 2–3 (noting that “the Internal Revenue Code and many state statutes modeled on the federal tax code impose significant restraints on . . . religious communities”). Professor Gaffney described these restrictions as part of the “regulation of the religious activities of churches that touch on political matters.” Id. at 29. As Gaffney observes, “it would be a lot easier to refer to [these restrictions] as [dealing with] the ‘political activity’ of religious organizations,” but this would “misunderstand the profoundly religious character and motivation of the activity.” Id. at 29 n.116. I am not suggesting that the federal tax laws require churches to make sure all their activities are sober and pious (Youth-group ski trips?). I do think, though, that the exemption scheme incorporates an assumption that churches’ activities become less authentically religious as they become more (to government) recognizably political.
34 Cammarano v. United States, 358 U.S. 498, 513 (1959).
35 Texas Monthly, 489 U.S. at 13 n.2.
36 See Lee, supra note 6, at 434 (“Section 501(c)(3) . . . pays churches through tax-exempt status to be silent on issues deemed by the state to be political.”).
37 See generally Pope John Paul II, Evangelium vitae [The Gospel of Life] (1995), available at http://www.vatican.va/holy_father/john_paul_ii/encyclicals/documents/hf_jp-ii_enc_25031995_evangelium-vitae_en.html. (last visited Sept. 20, 2001).
38 See, e.g., Cal Thomas, Liberals Afraid of John Ashcroft, Balt. Sun, Jan. 17, 2001, at 13A (“During the last presidential campaign, there was much ‘God-talk’ from Vice President Al Gore and his running mate, Joe Lieberman.”); Interview by Lisa Simeone with Wendy Kaminer, Weekend All Things Considered, Dec. 17, 2000, available at 2000 WL 21464562 (“[W]e certainly heard a lot of ‘God’ talk during the presidential campaign, perhaps from Joe Lieberman more than anyone else.”).
39 See, e.g., Sandy Grady, Holy Candidates—Chill That Religious Prose, The Portland Oregonian, Sept. 1, 2000, at B1 (“Chill the sermons, Holy Joe. You too, Dubya. If we wanted a gospel thumper, we’d elect Billy Graham. God belongs in the heart, not on the stump.”); Jonathan Kirsch, A Cautionary View of Mixing Politics and Religion, L.A. Times, Oct. 7, 2000, at B2 (noting that the B’Nai B’rith Anti-Defamation League had urged Senator Joseph Lieberman to “keep religion out of politics”).
40 For example, Americans United for the Separation of Church and State investigates vigorously and reports alleged violations of the restrictions on political speech by religious organizations. For more information, see http://www.au.org (last visited May 14, 2001).
41 211 F.3d 137, 139 (D.C. Cir. 2000).
42 Id. at 140. More particularly, the ads carried the headline, “Christians Beware,” and “asserted that then-Governor Clinton’s positions concerning abortion, homosexuality, and the distribution of condoms . . . violated Biblical precepts.” Id. Because “Bill Clinton is promoting policies that are in rebellion to God’s laws,” the ad asked, “how then can we vote for Bill Clinton?” Branch Ministries v. Rossotti, 40 F. Supp. 2d 15, 17 (D.D.C. 1999); see also Anthony Lewis, Christian Right Wants it Both Ways: Playing Politics is OK, but Don’t Expect Exemption from Taxes, N.Y. Times, Dec. 1, 1992, at A15. At the bottom of the ad was the provocative statement, “[t]ax-deductible donations for this advertisement gladly accepted.” Branch Ministries, 211 F.3d at 140. For a copy of the ad, see Lee, supra, note 6 at 437. In upholding the revocation, the Court of Appeals rejected, inter alia, the Church’s claim that the revocation violated the First Amendment, noting both that “the Church does not maintain that a withdrawal from electoral politics would violate its beliefs,” and that “Congress has not violated [an organization’s] First Amendment rights by declining to subsidize its First Amendment activities.” Branch Ministries, 211 F.3d at 142, 143.
43 See, e.g., Peter Applebome, Religious Right Intensifies Campaign for Bush, N.Y. Times, Oct. 31, 1992, at A1; Lewis, supra note 42, at A15.
44 See generally, e.g., Lee, supra, note 6, at 392–404 (recounting incidents and episodes from the 2000 election cycle).
45 The proposal passed easily. Carol Ness, Prop 22 Passage Forces Gays to Regroup, S.F. Examiner, Mar. 8, 2000, at A1.
46 Jenifer Warren, 21 Initiatives Await Voters on State’s March Ballot, L.A. Times, Oct. 31, 1999, at A18; see also Martin Kasindorf, No to Gay Marriage, Yes to Feinstein and Campbell, U.S.A. Today, Mar. 8, 2000, at 12A (“The state GOP, the Mormon Church and Catholic bishops backed the proposition. Democrats and leaders of the state’s Methodist, Episcopal and Presbyterian churches backed the ‘No on Knight’ side.”); Robert Salladay, Mormons Now Target California: Church Asks Members to Back State Ballot Initiative, S.F. Examiner, July 4, 1999, at A1 (noting also that the LDS was actively and financially involved in recent same-sex-marriage related political campaigns in Alaska and Hawaii).
47 See Carrie A. Moore, California Polls: A Prop 22 Win, Deseret News (Salt Lake City, Utah), Mar. 5, 2000, at A1 (noting that “[t]he LDS Church has refrained from donating money to support the initiative, choosing to encourage its membership to support the proposal with time and money”); Carrie A. Moore, Tax Threat Against Church Assailed, Deseret News(Salt Lake City, Utah), July 10, 1999, at E1 (noting that a “letter was sent to church leaders throughout the state” which was “read to individual adult members” and which “asked for their voluntary support of [the Knight Initiative]”) [hereinafter Tax Threat].
48 Tax Threat, supra note 47.
49 Edward Epstein, Supervisor Hits Mormons for Politicking, S.F. Chron., July 7, 1999, at A13.
50 Tax Threat, supra note 47. Leno insisted, though, in a letter to the San Francisco Examiner, that:
[His] concern was not the church’s advocacy for passage of the Knight initiative. . . . Churches and other religious groups in this country have a long and proud history of participation in the discourse of social policy. What did raise questions for me was whether a charitable organization such as the Mormon church can ask its members for their money as well as their vote in support of a political campaign.
Mark Leno, Letter to the Editor, Why Leno Questions Mormon Role in Anti-Gay-Marriage Issue, S.F. Examiner, July 26, 1999, at A14.
51 See generally, Phila. Archdiocese Is Sued Over Planned Voters’ Guide, Pitt. Post-Gazette, Apr. 3, 1999, at A7. Cf. U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 74 (1988) (reversing ruling holding Catholic Conference in contempt for failure to comply with discovery requests in action seeking to revoke tax-exempt status of the Roman Catholic Church because of its pro-life activities).
52 Letter from Barry Lynn to Cardinal Bevilacqua (March 31, 1999), available at http://www.au.org/press/pr331let.htm (last visited May 14, 2001).
53 Press Release, Roman Catholic Archdiocese of Philadelphia Should Drop Plan to Produce Voter Guides, Says Americans United (March 31, 1999), available at http://www. au.org/press/pr331922.htm (last visited May 14, 2001). Cf. Romero, supra, note 24 (“There are political implications to the Gospel.” “We will take care of those.”).
54 Rob Boston, Philadelphia Story, 52 Church & State 7, 7 (May 1, 1999), available at http://www.au.org/churchstate/cs5992.htm (last visited June 30, 2001).
55 See, e.g., Carroll, supra note 8, at 226 (“As Garry Wills has pointed out, the political involvement of black churches has deep roots running straight back to the miliastic theology of the Christianized slaves.”). Of course, a religious community might refuse, for theological reasons rooted in its own traditions, to engage in political disputes or to influence political decisions. But such a community’s lack of interest in politics is viewed by its members as the proper response to God’s calling and revelation, not as an arrangement with, or an acquiescing to, government. My colleague, Tom Shaffer, has thought and written extensively about these matters. See, e.g., Thomas L. Shaffer, Review Essay, Stephen Carter and Religion in America, 62 U. Cin. L. Rev. 1601, 1609–12 (1993) (describing and discussing the “Gathered Church”).
56 Romero, supra note 24.
57 Cf. Boy Scouts of Am. v. Dale, 530 U.S. 640, 650–51 (2000); Mitchell v. Helms, 530 U.S. 793, 828 (2000) (“[T]he inquiry into the recipient’s religious views required by a focus on whether a school is pervasively sectarian is not only unnecessary but also offensive. It is well established, in numerous other contexts, that courts should refrain from trolling through a person’s or institution’s religious beliefs.”).
58 515 U.S. 753, 756, 760, 762–71 (1995).
59 Id. at 756.
60 Id. at 760.
61 Id. at 762–70 (plurality op.). Justice O’Connor agreed, though she did not join Justice Scalia in “limit[ing] application of the endorsement test to ‘expression by the government itself . . . or else government action alleged to discriminate in favor of private religious expression or activity.’” Id. at 774 (O’Connor, J., concurring in part and concurring in the judgment). In her view, rather, “when the reasonable observer would view a government practice [e.g., permitting private religious speech near the seat of government] as endorsing religion . . . it is [the Court’s] duty to hold the practice invalid.” Id. at 777 (O’Connor, J., concurring in part and concurring in the judgment).
62 Id. at 770 (Thomas, J., concurring); see also id. at 771 (Thomas, J., concurring) (“[T]o the extent that the Klan had a message to communicate in Capitol Square, it was primarily a political one.”).
63 Id. at 771 (Thomas, J., concurring).
64 See id. at 770–71 (Thomas, J., concurring).
65 Compare, e.g., Abdon M. Pallasch, Hindu Files Suit to Challenge Swastika Firing, Chi. Trib., Aug. 6, 1998, at 4 (describing a workplace incident involving a swastika as a Hindu religious symbol), and Kaushal v. Hyatt Regency Woodfield, 1999 WL 436585 *1, *3 (N.D. Ill. 1999) (“While the swastika may have a revered place in the [Hindu] religious world . . . it is also one of the most offensive and condemned symbols in much of the United States and the western world.”), with, e.g., American History X (New Line Productions, Inc., 1998).
66 Cf., e.g., People ex rel. Vollmar v. Stanley, 255 P. 610, 617 (Colo. 1927) (“[I]t is not easier but probably harder to determine what is or is not religious than what is or is not sectarian. What parts of Longfellow or Holmes are religious? Is the Hymn to the Night or the Chambered Nautilus or Lincoln’s Second Inaugural religious or not?”), overruled by Conrad v. City and County of Denver, 656 P.2d 662, 662 (Colo. 1982).
67 530 U.S. 640 (2000).
68 530 U.S. 793 (2000).
69 Dale, 530 U.S. at 644.
70 The Supreme Court 1999 Term—Leading Cases—Freedom of Association, 114 Harv. L. Rev. 259, 259 (2000) (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 609 (1984); N.Y. Club Ass’n v. City of New York, 487 U.S. 1, 1 (1988); Bd. of Dirs. of Rotary Int’l v. Rotary Club, 481 U.S. 537, 537 (1987)).
71 Dale, 530 U.S. at 647 (internal quotations and citations omitted); see also id. at 650–51 (“The New Jersey Supreme Court analyzed the Boy Scouts’ beliefs and found that the ‘exclusion of members solely on the basis of their sexual orientation is inconsistent with Boy Scouts’ commitment to a diverse and ‘representative’ membership . . . [and] contradicts Boy Scouts’ overarching objective to reach ‘all eligible youth.’”) (citation omitted).
72 See generally Dale v. Boy Scouts of Am., 734 A.2d 1196, 1228–29 (N.J. 1999), rev’d 530 U.S. 640 (2000).
73 Dale, 530 U.S. at 650.
74 Id. at 651–55; see also id. at 653–57.
75 Id. at 653. But see id. at 669–78 (Stevens, J., dissenting) (concluding that the record contained insufficient evidence of a coherent position on the matter).
76 Id. at 653.
77 See Mitchell, 530 U.S. at 808.
78 530 U.S. at 826 (plurality op.) (“The dissent is correct that there was a period when this factor mattered, particularly if the pervasively sectarian school was a primary or secondary school.”).
79 Id. at 829 (“In short, nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of this Court bar it. This doctrine, born of bigotry, should be buried now.”).
80 Id. at 828–29 (noting that “hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow”). See generally, e.g., Richard A. Baer, Jr., The Supreme Court’s Discriminatory Use of the Term “Sectarian,” 6 J. L. & Pol. 449, (1990).
It is worth noting that the United States Court of Appeals for the Fourth Circuit recently ruled, in an opinion by Chief Judge Wilkinson, that Mitchell had, in fact, “buried” the presumption that government aid to “pervasively sectarian” schools is unconstitutional. Columbia Union Coll. v. Oliver, 254 F.3d 496, 504 (4th Cir. 2001). In an abundance of caution, though, the court went on to affirm, as not clearly erroneous, the district court’s finding that the College is not, in fact, pervasively sectarian. Id. at 508–09.
81 Mitchell, 530 U.S. at 827–28.
82 Rigdon v. Perry, 962 F. Supp. 150, 152 (D.D.C. 1997). The Catholic bishops had inaugurated in the spring of 1996 a “Project Life Postcard Campaign,” which “consisted of Catholic priests throughout the country preaching to their parishioners against an abortion procedure known . . . colloquially as ‘partial birth abortion.’” Rigdon, 962 F. Supp. at 150, 152; see also Toni Locy, Which Boss to Obey—Church or Air Force?, The Seattle Times, Oct. 9, 1996, at A10.
83 Rigdon, 962 F. Supp. at 153. The Department also argued, among other things, that the ban was required because otherwise those in the pews might confuse their ministers’ exhortations with orders from a superior officer. See generally Toni Locy, Military Chaplains’ Rights Upheld; Ban on Urging Antiabortion Letters to Congress Faulted by Court, The Wash. Post, Apr. 7, 1997, at A19; Timothy Lynch, Dereliction of Duty: The Constitutional Record of President Clinton, 27 Cap. U. L. Rev. 783, 789–90 (1999).
84 Lynch, supra note 83, at 790 (quoting Doug Landow, Military Yardstick of Religious Freedom?, Wash. Times, Aug. 14, 1996, at A19). Another plaintiff in the case, Rabbi David Kaye, noted that “it is impossible, indeed incoherent, to separate moral teachings from Judaism. And when a law is immoral, [he] believe[d] that as a Rabbi [he] [could] not remain silent.” Further, he insisted, “as a Rabbi, I must tell my Congregation that this abomination must not be allowed to continue in a society that calls itself just.” Rigdon, 962 F. Supp. at 154.
85 Rigdon, 962 F. Supp. at 163–64. “What we have here,” Judge Sporkin concluded, “is the government’s attempt to override the Constitution and the laws of the land by a directive that clearly interferes with military chaplains’ free-exercise and free-speech rights, as well as those of their congregants.” Id. at 165; see also Toni Locy, supra note 83, at A19. Kevin Hasson of the Becket Fund for Religious Liberty, and counsel for the objecting clergy remarked, “In over 200 years, our government has never before attempted to censor a sermon. I hope Judge Sporkin’s opinion makes this first attempt . . . [its] last.” Tony Snow, Judge Rejects Clinton Attack on Military Chaplains’ Free Speech Rights, St. Louis Post-Dispatch, Apr. 21, 1997, at B7.
Judge Sporkin also concluded that it did not violate federal law or regulations for military chaplains to encourage congregants to weigh in on pending legislation, and that—even if it did—such a prohibition would violate the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1(a), (b). Rigdon, 962 F. Supp. at 156–62.
86 Rigdon, 962 F. Supp. at 164.
87 Id. (quoting Widmar v. Vincent, 454 U.S. 263, 270 n.7 (1981) (refusing to distinguish “religious worship” from “speech about religion” and insisting that “even if the distinction drew an arguably principled line, it is highly doubtful that it would lie within the judicial competence to administer”)).
88 See Alan Wolfe, Ye of Little Faith, Commonweal, Nov. 3, 2000, at 29 (reviewing and quoting Stephen L. Carter, God’s Name in Vain: The Rights and Wrongs of Religion in Politics (2000) (“Religion has no sphere. It possesses no natural bounds. It is not amenable to being pent up.”)). Cf. Lemon v. Kurtzman, 403 U.S. 602, 623 (1971) (noting the asserted “hazards of religion’s intruding into the political arena”).
89 121 S. Ct. 2093 (2001).
90 Good News Club v. Milford Cent. School, 21 F. Supp. 2d 147, 150 (N.D.N.Y. 1998).
91 Id. Milford’s Policy was adopted pursuant to section 414 of the New York Education Law, which “authorizes local school boards to adopt reasonable regulations for the use of school facilities.” Id. at 149 n.2 (quoting section 414).
92 Id. at 149.
93 Id. at n.3 (quoting Letter of Robert McGruder, Oct. 3, 1996).
94 Id. at 154.
95 Good News, 21 F. Supp. 2d at 154.
96 Id. (“A careful analysis of the Club’s activities reveals that its subject matter is decidedly religious in nature, and not merely a discussion of secular matters from a religious perspective that is otherwise permitted under the District’s use policies.”).
97 Id. at 160 (“[T]he District’s denial of Good News’ requests to use . . . [Milford’s] facilities was consistent with its prior practice and use and thus constitutionally sound.”).
98 Id. at 154–57 (summarizing “genre” of Club’s activities); see also Good News Club v. Milford Cent. School, 202 F.3d 502, 504–07 (2d Cir. 2000).
99 Id. at 157.
100 Good News, 21 F. Supp. 2d. at 157–58.
101 Id. at 160.
102 Good News, 202 F.3d at 510.
103 Id.
104 Id. Cf. Good News/Good Sports Club v. Ladue, 28 F.3d 1501, 1517–18 (8th Cir. 1994) (Bright, J., dissenting) (“[T]he Club is fundamentally a Christian organization, the primary purpose of which is to instill and reinforce Christian faith and values. . . . The Scouts, by contrast, are a secular organization.”).
105 I was a co-author of an amicus curiae brief filed in the United States Supreme Court by the Christian Legal Society and the Union of Orthodox Jewish Congregations of America in support of the Good News Club.
106 Cf. Rigdon, 962 F. Supp. at 164 (noting that “it is not the role of this Court to draw fine distinctions between degrees of religious speech and to hold that religious speech is protected but religious speech with so-called political overtones is not”); see also Widmar, 454 U.S. at 270 n.6 (refusing to distinguish “religious worship” from “speech about religion” and insisting that “even if the distinction drew an arguably principled line, it is highly doubtful that it would lie within the judicial competence to administer”).
107 Good News, 202 F.3d at 512 (Jacobs, J., dissenting).
108 Id. at 515 (quoting Rosenberger v. Rectors & Visitors of the Univ. of Va., 515 U.S. 819, 845 (1995)).
109 See, e.g., Good News, 121 S. Ct. at 2110–11 (Scalia, J., concurring) (“If the distinction did have content, it would be beyond the courts’ competence to administer. . . . And if courts . . . were competent, applying the distinction would require state monitoring of private, religious speech with a degree of pervasiveness that we have previously found unacceptable.”); Widmar, 454 U.S. at 272 n.11 (“We agree . . . that the University would risk greater ‘entanglement’ by attempting to enforce its exclusion of ‘religious worship’ and ‘religious speech.’ Initially, the University would need to determine which words and activities fall within ‘religious worship and religious teaching.’ This alone could prove ‘an impossible task in an age where many and various beliefs meet the constitutional definition of religion.’”) (citations omitted).
110 Good News, 121 S. Ct. at 2100; see also id. at 2109 (Scalia, J., concurring) (“This is blatant viewpoint discrimination.”). Five Justices also concluded that exclusion was not required by the Establishment Clause. Id. at 2103–07. Justice Breyer also agreed that, “viewing the disputed facts . . . favorably to the Club . . . [Milford] has not shown an Establishment Clause violation.” Id. at 2112 (Breyer, J., concurring in part). He emphasized, though, his view that “both parties . . . should have a fair opportunity to fill the evidentiary gap in light of today’s opinion.” Id. (Breyer, J., concurring in part).
111 Indeed, in Justice Thomas’s view, the Second Circuit never actually determined that the Club’s activities were “religious worship”; rather, it simply compared the Club’s activities to worship. Good News, 121 S. Ct. at 2102 n. 4. Cf. Good News, 202 F.3d at 510 (“[W]e believe that the school authorities, after thorough inquiry and deliberation, correctly determined that the activities of the Club fall clearly on the side of religious instruction and prayer.”); (“It is difficult to see how the Club’s activities differ materially from the ‘religious worship’ described [in other cases].”). Id. Justices Souter and Ginsburg, on the other hand, were of the view that “[i]t is beyond question that Good News intends to use the public school premises not for the mere discussion of a subject from a particular, Christian point of view, but for an evangelical service of worship[.]” Good News, 121 S. Ct. at 2117 (Souter, J., dissenting); see also Rosenberger, 515 U.S. at 867 (Souter, J., dissenting) (“This writing is no merely descriptive examination of religious doctrine. . . . Nor is it merely the expression of editorial opinion. . . . It is straightforward exhortation to enter into a relationship with God as revealed in Jesus Christ[.]”). They also dismissed as “semantic” Justices Thomas’s conclusion that the Second Circuit never actually determined that the Club’s activities were “worship.” Good News, 121 S. Ct. at 2117 n.3 (Souter, J., dissenting).
112 Good News, 121 S. Ct. at 2102.
113 Id.
114 Id. at 2102 n.4.
115 Id. at 2113 (Stevens, J., dissenting). In his view, “just as a school may allow meetings to discuss current events from a political perspective without also allowing organized political recruitment, so too can a school allow discussion of topics such as moral development from a religious (or nonreligious) perspective without thereby opening its forum to religious proselytizing or worship.” Id. But see id. at 2109 (Scalia, J., concurring) (arguing that it is “blatant viewpoint discrimination” to say that “[t]he Club may not . . . independently discuss the religious premise on which its views are based . . . [and] may not seek to persuade the children that the premise is true”); id. at 2110 (Scalia, J., concurring) (“The right to present a viewpoint based on religion carrie[s] with it the right to defend the premise.”).
116 Even if government officials could identify this point, it is not clear why they should be able to act upon it. After all, “[e]ffectiveness in presenting a viewpoint rests on the persuasiveness with which the speaker defends his premise[.]” Id. at 2109 (Scalia, J., concurring); see also Rosenberger, 515 U.S. at 844 (“Were the dissent’s view to become law, it would require the University . . . to scrutinize the content of student speech, lest the expression in question . . . contain too great a religious content.”).
117 505 U.S. 577, 616–17 (1992) (Souter, J., concurring).
118 See, e.g., Good News Club v. Milford Cent. School, 121 S. Ct. 2093, 2114 (2001) (Stevens, J., dissenting) (“The line between the various categories of religious speech may be difficult to draw, but I think that the distinctions are valid, and that a school . . . must be permitted to draw them.”).
119 Id. at 2111 (Scalia, J., concurring); see also, e.g., Lemon v. Kurtzman, 403 U.S. 602, 620 (1971) (“This kind of state inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids.”).
120 530 U.S. 793, 828 (2000).
121 See 530 U.S. 640, 653–57 (2000).
122 Cf. Bradley, supra note 15, at 277 (arguing that the Court’s Religion Clause jurisprudence is “most profitably understood as [a] judicial attempt to move religion into the realm of subjective preference by eliminating religious consciousness”).
123 See Edward McGlynn Gaffney, Jr., Hostility to Religion, American Style, 42 DePaul L. Rev. 263, 268 (1992) (noting that some read the Establishment Clause as having been designed to “keep religion its place; that is, out of the public discourse to the greatest extent possible”).
124 Lemon, 403 U.S. at 625 (Douglas, J., concurring); see also, e.g., Everson v. Bd. of Educ., 330 U.S. 1, 52 (1947) (Rutledge, J., dissenting) (noting that the “religious function” is “altogether private”).
125 Santa Fe Indep. School Dist. v. Doe, 530 U.S. 290, 310 (2000) (quoting Lee v. Weisman, 505 U.S. 577, 589 (1992)).
126 See Bradley, supra note 15, at 276–77.
127 Bradley, supra note 15, at 277; see also Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. Chi. L. Rev. 195, 211 (1992) (“[N]ot all divisive and controversial questions have been privatized by the Constitution; only religious questions have.”).
128 Bradley, supra note 15, at 276, 277; see also id. at 330 (“The sad[] truth may be that the Court indeed perceives itself as doing the dirty but indispensable work of saving the republic from faith unchained and are, thus, sadly obliged to reject Madison’s gallant gamble.”).
129 Id. at 280.
130 Id.; see also id. at 297 (stating that “privatization” thesis is that “if religion possesses any objective truth claims at all, they are not public truths”).
131 See generally, e.g., Second Vatican Ecumenical Council, Dignitatis humanae [Declaration on Religious Liberty] ¶ 2 (1965) (insisting upon the freedom of conscience in matters of religion, and grounding freedom in the dignity of the human person) available at http://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-ii_decl_ 19651207_dignitatis-humanae_en.html (last visited Sept. 20, 2001).
132 See Bradley, supra note 15, at 276–77.
133 Id. at 277, 279 (“What is ‘religion’? How does it descriptively irrupt into ‘politics,’ and what follows from these irruptions? And, most importantly, by what criteria are those effects judged desirable or undesirable?”).
134 Id. at 293.
135 Johannes B. Metz, Theology of the World 153 (Glen-Doepel trans., 1969); see also Bradley, supra note 15, at 277 (arguing that “religious consciousness” is “the conviction that religion contains objectively true insights into human social existence”); id. at 329 (“Political norms have no necessary influence on religious communities, yet religion’s encompassing account of existence necessarily influences the polis.”).
136 See Bradley, supra note 15, at 293 (“It is not easy to see how religion . . . can be compartmentalized within a ‘private’ area, much less prosper there.”).
137 See generally Richard John Neuhaus, The Naked Public Square: Religion and Democracy in America (2d ed. 1986).
138 See generally, Symposium, supra note 17.
139 I do not mean, with this talk of privatization and retreat, to ignore the endless (and tedious) expressions of civil religion, ceremonial deism, “American Shinto,” and treacly piety that, all admit, are staples of our cultural life. See John Witte, Jr., Religion and the American Constitutional Experiment: Essential Rights and Liberties 236 (2000).
140 See Garnett, supra note 12, at 1853 (“[A]ssociations are about social structure as much as self-expression. They get in the way just as they facilitate. They are the hedgerows of civil society. They are wrenches in the works of whatever hegemonizing ambitions government might be tempted to indulge.”).
141 This is not to say that the function of religious communities is simply to mediate and compete in civil society. For example, many Christian denominations and traditions speak of the Church as “the body of Christ.” See, e.g., 1 Corinthians 12:1–31; The Catechism of the Catholic Church ¶¶ 787–795 (“The Church-Body of Christ”) (1994).
142 Gaffney, supra note 123, at 303.
143 Bradley, supra note 15, at 324. Cf. Bob Jones Univ. v. U.S., 461 U.S. 574, 593 (1983) (denying tax-exempt status to private school that discriminated, for assertedly religious reasons, on the basis of race, because such discrimination is against “public policy”). I am reminded here, for example, of contemporary scholars whose support for private-school choice programs reflects, at least in part, a hope that tuition vouchers will serve as a vehicle for additional regulation in the service of “liberal public values.” See, e.g., Stephen Macedo, Constituting Civil Society: School Vouchers, Religious Non-Profit Organizations, and Liberal Public Values, 75 Chi.-Kent L. Rev. 417, 430–42, 450–51 (2000).
144 Michael W. McConnell, The New Establishmentarianism, 75 Chi.-Kent L. Rev. 453, 455 (2000).
145 Id. at 475 (“The great solution to the republican problem was to promote public virtue indirectly, by protecting freedom of speech, association, and religion, and leaving the nation’s communities of belief free to inculcate their ideas of the good life, each in their own way.”). Thus, odd as it might sound, the tax-exemption scheme might have things backward. As my colleague Anthony Bellia remarked, maybe a government that sees its purpose as the promotion of the common good in a free society should not only exempt its non-commercial, mediating institutions from the burdens of taxation, it should want these same associations to participate in and contribute to the political process.
146 For an engaging discussion of the “loyalty” demanded by mediating associations—religious communities, in particular, see generally Stephen L. Carter, The Dissent of the Governed: A Meditation on Law, Religion, and Loyalty (1998).
147 That said, I agree with George Weigel that it would be a mistake to reduce the Church to a mediating institution with a message, or a “voluntary association with a cause.” George Weigel, Papacy and Power, First Things, Feb. 2001 at 18, 25 (stating that the Church “is the institutional embodiment of truth claims”).
148 Romero, supra note 24.
149 Lee, supra note 6, at 434 (“Section 501(c)(3) . . . pays churches through tax-exempt status to be silent on issues deemed by the state to be political.”).
150 See Garnett, supra note 12, at 1849–56.
151 See generally, e.g., Johnson, supra note 10 (discussing government’s interest in preventing circumvention of campaign-finance laws and in not requiring taxpayers to “subsidize” political expression to which they object). Cf. Edward A. Zelinsky, Are Tax “Benefits” for Religious Institutions Constitutionally Dependent on Benefits for Secular Entities?” 42 B.C. L. Rev. 805, 841 (2001) (“In the final analysis, tax exemption does not subsidize churches, but leaves them alone.”).
152 The question whether the Constitution would permit—or, perhaps, whether it requires—such unequal treatment of religious and non-religious nonprofits, again, goes beyond the scope of this Article. See, e.g., Gaffney, supra note 8, at 35–39 (arguing that the restrictions on churches’ putatively political activities are unconstitutional conditions); Goodwin, supra note 8, at 384 (arguing that “exemption of churches from taxation is not merely constitutionally-permissible, it is constitutionally-required”).
153 See Bradley, supra note 17, at 330 (noting the “dehumanization implicit in the separation of individual existence into political, economic, religious, and cultural performances, each severally and tightly controlled by internally generated norms”).
154 1 Kings 18:17.
155 Id.
156 See Shaffer, supra note 30, at 1875 (noting that privatized religion “will not likely attract or deserve words such as deviant or subversive, because it will so often be talked out of confronting power”).
157 Charles Peguy, Mystery of the Charity of Joan of Arc 114 (Pantheon 1950).
158 Id at 115.
159 Thomas L. Shaffer, Maybe a Lawyer Can Be a Servant. If Not . . . , 27 Tex. Tech. L. Rev. 1345, 1348 (1996).