[*PG771]A QUIET FAITH? TAXES, POLITICS, AND THE PRIVATIZATION OF RELIGION
Abstract: The government exempts religious associations from taxation and, in return, restricts their putatively political expression and activities. This exemption-and-restriction scheme invites government to interpret and categorize the means by which religious communities live out their vocations and engage the world. But government is neither well-suited nor to be trusted with this kind of line-drawing. What’s more, this invitation is dangerous to authentically religious consciousness and associations. When government communicates and enforces its own view of the nature of religion—i.e., that it is a private matter—and of its proper place—i.e., in the private sphere, not in politics—it tempts both believers and faith communities to embrace this view. The result is a privatized faith, re-shaped to suit the vision and needs of government, and a public square evacuated of religious associations capable of mediating between persons and the state and challenging prophetically the government’s claims and conduct.
Those who say that religion has nothing to do with politics do not know what religion means.1
Religion is not the church a man goes to, but the cosmos he lives in.2
Everyone remembers Chief Justice Marshall’s observation in McCulloch v. Maryland that the “power to tax involves the power to destroy.”3 And though it is tempting to join Justice Frankfurter in dis[*PG772]missing this pithy catch-phrase as a “seductive clich�” or “flourish of rhetoric,”4 Marshall did have a point. The imposition of a tax is, after all, an assertion of power and an “application of force.”5 The same is true of the decision not to tax, or to exempt from taxation. A power is no less real that is exercised selectively or indulged with restraint. The decision to exempt certain associations, persons, activities, or things from taxation presupposes and communicates the ability to do otherwise; definitional lines drawn to mark the boundaries of such exemptions implicitly assert the power to draw them differently.
Like other tax-exempt charitable organizations, religious associations may not, among other things, “participate in, or intervene in . . . any political campaign on behalf of (or in opposition to) any candidate for public office,” nor may they devote a “substantial part of [their] activities [to] carrying on propaganda or otherwise attempting to influence legislation.”6 My claim here is that the decision to exempt religious associations from federal taxation may reasonably be regarded as an assertion of power—the power, perhaps, to “destroy”—over these communities, their activities, and their expression.7
[*PG773] Strictly speaking, though, this Article is not about the churches’ conditional tax exemption, or about its history, interpretation, or application.8 I take it that the First Amendment permits government to exempt churches from taxation,9 and I am sympathetic to the doctrinal arguments that the accompanying restrictions on churches’ expression burden First Amendment freedoms.10
Instead, this Article is a reflection on just a few of the implications of the government’s claim to the power and competence to draw and police a line between religious and political expression, activities, and “spheres.”11 Both the claim itself, and the messages it sends, raise [*PG774]provocative questions about the nature of religious faith and vocation, the meaning of religious freedom, the ideological ambitions of the contemporary liberal state, and the roles played in civil society by religious and other associations that mediate between persons and government.12
After borrowing from the headlines to provide real-world context for the discussion, I turn to the invitation extended to government in the exemption-and-restriction scheme to interpret and categorize the expression and activities of religious associations. This invitation is considered in light of current events and recent judicial decisions, including the Supreme Court’s ruling in Good News Club v. Milford Central School.13 This consideration yields no dramatic constitutional arguments or sweeping policy proposals. Instead, my goal is merely to encourage an appropriate wariness about government efforts either to determine or assign the “real” meaning of what religious believers and communities say and do.14
Next, I will suggest that the churches’ conditional exemption, and the government theologizing it seems to invite, might, in Professor Bradley’s words, “most profitably [be] understood as [government] attempts to move religion into the realm of subjective preference by eliminating religious consciousness.”15 In other words, maybe the power to tax churches, to exempt them from taxation, and to attach conditions to such exemptions really does, as Chief Justice Marshall quipped, “involve[] the power to destroy” religion. Neither heavy-handed repression nor even overt hostility toward faith is required, but merely the subtly didactic power of the law. Government need only express and enforce its own view of the nature of religion—i.e., that it is a private matter—and of its proper place—i.e., in the private sphere, not in politics—and religious believers and associa[*PG775]tions may yield to the temptation to embrace, and to incorporate, this view themselves.16
Finally, and in keeping with the revival of interest in the structure and function of “civil society,”17 I offer some brief, general thoughts on the mediating role of religious associations and on how the privatization of faith might undermine that role. I will suggest that restrictions on churches’ “political” activities and expression not only undermine “religious consciousness” but also threaten to denude the terrain of public life. There is the danger that, having made their own the government’s view of religion’s place, now-humbled and no-longer-prophetic religious associations will retreat with their witness to the “private” sphere where—they now agree—they belong, leaving persons to face the state alone in the hollowed-out remains of the public square.18
Now, I should make clear at the outset that none of this is to deny that government officials distinguish between faith and politics, and between religious and other forms of expression, all the time. Indeed, the Constitution itself sometimes requires precisely this kind of careful line drawing.19 After all, the government may preach recycling, exercise, and tolerance, but it may not preach infant baptism or the Immaculate Conception; it may demand testimony in a court of law, but it may not demand recitation of the Apostle’s Creed; it wisely endorses and celebrates the achievements of the Duke and Notre Dame [*PG776]basketball teams,20 but may not endorse the religious mission and vocation of the Society of Jesus. Still, it strikes me that the Internal Revenue Code section 501(c)(3)’s exemption-and-restriction scheme is noteworthy in the extent to which it invites government to label as “propaganda” or “campaign[ing]” what are, for religious believers and communities, expressions of their faith and responses to their calling.21 It is far from clear that this is an appropriate task for the liberal state.22
Nor is the claim that religious expression and activity are outside the scope of legitimate government concern. To question the government’s ability to determine the theological significance of an activity is not to deny its power reasonably to regulate that activity. My concern, instead, is that the premises of the conditional exemption scheme, the labeling it invites, and the monitoring of the distinctions it creates will tame religion by saying what it is and identifying what it is not, tempt religion to revise its conception of itself and of its mis[*PG777]sion, and convince religious consciousness to internalize the state’s own judgment that faith simply does not belong in politics.
Nearly 30 years ago, an eminent minister insisted before Congress that:
[T]he first amendment . . . should not permit the state to tell the church when it is being “religious” and when it is not. The church must be permitted to define its own goals in society in terms of the imperatives of its religious faith. Is the Christian church somehow not being religious when it works on behalf of healing the sick, or for the rights of minorities, or as peacemaker on the international scene? No, the church itself must define the perimeters of its outreach on public policy questions.23
In a similar vein, there is a powerful scene in the film about his life in which the late Archbishop Oscar Romero learns that one of his left-leaning, rabble-rousing worker-priests has been arrested and tortured by government thugs. The formerly timid Romero bursts in on the elegant patio lunch of El Salvador’s president-elect, insisting that something be done about the violence that is consuming their country. But the president-elect coolly scolds the Archbishop, and blames the violence on the Church and its radicals, insisting that “the priests must stay out of politics.” “But,” those priests’ bishop reminds him, “there are political implications to the Gospel.” To which the president-elect responds with a smile, “we will take care of those.”24
In this scene, religion is told both where it belongs—i.e., it is told that its “implications” will be “take[n] care of” by others; its goals, imperatives, and perimeters are defined by others—and, by implication, what it is. But when religion is content merely to be what government says it is, or may or should be, then perhaps it really has been, as Justice Marshall might have predicted, “destroyed.”25
The United States has for nearly a century exempted churches—”[c]orporations . . . organized and operated exclusively for religious . . . purposes”26—from federal taxation.27 In fact, as my colleague Professor Rodes observed more than thirty years ago, “[c]hurches have been wholly or partially exempt from secular taxes since the time of Constantine at least[.]”28 Not only this, but the United States permits donors to deduct from their taxable income contributions to churches and other similarly exempt entities.29 It seems, then, that the United States has benevolently foresworn whatever “power to destroy” it might enjoy over religion, and has elected instead, by lifting tax burdens and encouraging charitable gifts, to promote a more “Erastian” relationship30 and to exploit the civic benefits of lived-out faith.31
[*PG779] But the churches’ exemption comes at a price:32 Like other tax-exempt charitable organizations, religious communities may not engage in activities and expression that concern or touch upon social realities and that are regarded by government as excessively political (or, perhaps, as insufficiently religious).33 Now, we could just regard these rules as the fair cost to churches of the tax benefits they enjoy, and perhaps also as reasonable safeguards against abuse of their tax-exempt status. Or, we could even say that these restrictions on churches impose no real burdens at all; they merely require charitable organizations “to pay for [political] activities entirely out of their own pockets, as everyone else engaging in similar activities is required to do.”34 On the other hand, it could be that the churches’ silence on political matters, and their retreat from the political arena, are no less valuable to government than the “social services” they provide and the “cultural and moral improvement of the community” to which they contribute.35 That is, we might think the tax exemption is simply the government’s way of paying churches not to talk about certain things.36
But, of course, churches have been talking about these “things” for a long time. From the revivalists of the Great Awakening who [*PG780]helped pave the way for the American Revolution, to the God-drenched abolitionist movements that sparked the Civil War; from the priests, ministers, and rabbis who appealed to the nation’s better angels during the Civil Rights movement, to the priests, ministers, and rabbis who today urge a rejection of the Culture of Death;37 from the presidential bids of Reverends Jackson and Robertson to the “God talk”38 that was a staple of the campaigns of Senator Joseph Lieberman and now-President George W. Bush—our history, traditions, and interminable public debates on the social issues are and have always been awash in religious expression, argument, and activism.
Of course, forceful assertions that religion should “stay out of politics”39 are nearly as deeply rooted in our traditions, and so we should not be surprised by the frequent allegations that particular religious groups who have entered the political fray are abusing their tax-exempt status.40 In Branch Ministries v. Rossotti, for example, the United States Court of Appeals for the District of Columbia Circuit affirmed the IRS’s decision to—”for the first time in its history”—revoke “a bona fide church’s tax-exempt status because of its involvement in politics.”41 In 1992, the Church had placed full-page advertisements in USA Today and The Washington Times urging Christians not to vote for then-candidate Bill Clinton because of his positions on certain social and moral issues.42 Not only were these ads found to be [*PG781]unlawful, they were criticized as unseemly meddling by religious institutions in political affairs and as an ominous indication of the “rise of the Christian right.”43
Political activities by churches, and complaints about them, were staples of the 2000 election season.44 Consider just two examples: In California, voters in the March 2000 primary elections were treated to that State’s usual orgy of direct democracy. One of the nearly two dozen ballot measures up for consideration was Proposition 22, also known as the “Knight Initiative,” which declared “[o]nly marriage between a man and a woman is valid or recognized in California.”45 Early on in the campaign season it was observed in the press that the Initiative was receiving support from, inter alia, the Church of Jesus Christ of Latter-day Saints (LDS).46 These financial and other forms of support prompted some politicians and watchdog groups to demand an examination of the LDS’s tax-exempt status.47 San Francisco Board [*PG782]of Supervisors member Mark Leno urged the IRS to investigate, while the Gay and Lesbian Political Action Committee insisted that LDS’s active support “transgresse[d] the autonomy of church and state”48 and was “a gross abuse of their tax-exempt status.”49 On the other hand, such criticisms prompted one legal commentator to decry “the effort to silence churches” and “to exclude religious institutions and voices from the public place.”50
A year earlier, on the other side of the country, Americans United for the Separation of Church and State had threatened to challenge the tax-exempt status of the Catholic Archdiocese of Philadelphia after the Archdiocese announced plans to distribute a voter guide that addressed, among other things, candidates’ views on abortion, school vouchers, and gay rights.51 In a letter to Philadelphia’s Cardinal Bevilacqua, Americans United’s Rev. Barry Lynn instructed the Cardinal that such “political materials” were likely in “violation of federal tax law that prohibits partisan political activity by houses of worship,” and reminded him that churches “are absolutely prohibited from intervening in political campaigns.”52 “Churches must stay out of partisan politics,” Lynn urged, “and refrain from attempting to influence the outcome of elections. It’s not only illegal, it runs counter to the mission of America’s faith communities.”53 Not so, insisted [*PG783]the Archdiocese: “The only responsible course of action for the Catholic Church is to participate in the debate started by others.”54
The point of these few stories is to set up the more general reflections that follow. As we have seen, religion is often, and perhaps increasingly, told to “stay out of politics,” but is this really desirable, or even possible? With respect to Rev. Lynn’s admonition, is it engagement with the world, or is it privatized quietism, that runs “counter to the mission of America’s faith communities”? Can demands that religious associations and believers concern themselves only with spiritual, private matters, and assumptions that such demands are reasonable and realistic, be squared either with our history or with the prophetic, evangelical, and world-transforming zeal that for so many animates their faith and motivates their actions?55
Another scene from Romero: El Salvador’s Catholic military vicar is objecting to Romero’s decision to hold a funeral mass in the Cathedral for a priest and two campesinos murdered by the death squads. “The Church’s job is to preach the Gospel,” the vicar insists, but “this is going to be interpreted as a political statement.” Romero responds, “I am not trying to make a political statement. I want to draw our people together.”56
I stated at the outset that the exemption-and-restriction scheme requires government to impose its own meaning on the expression and activities of mediating institutions.57 This scheme invites government to label as something else—as electioneering, endorsement, lobbying, etc.—what may be, for a religious association, worship, evangelism, or prophecy. The above episcopal disagreement from Romero illustrates the point nicely: How is government to decide what is really being said—or even what, for its own limited purposes, is being said—in and through the activities of religious believers in a community?
By way of illustration, recall the exchange between Justices Scalia and Thomas in Capitol Square Review and Advisory Board. v. Pinette.58 In that case, the Court held that it was not an unconstitutional “establishment” of religion for Ohio to permit a private party (the Ku Klux Klan) to “display an unattended religious symbol” (a Latin cross) in a “traditional public forum located next to its seat of government.”59 After all, Justice Scalia observed, such “private religious speech, far from being a First Amendment orphan, is as fully protected . . . as secular private expression.”60 What’s more, he maintained, constitutionally protected “private religious speech” does not become a constitutionally proscribed establishment or endorsement of religion simply by its proximity to a government building.61
Justice Thomas wrote separately. Although he agreed that the Klan’s expression was protected, he maintained that the cross display [*PG785]was best viewed as “a political act, not a Christian one.”62 Thomas noted, “[t]he Klan had a primarily nonreligious purpose in erecting the cross,” and, indeed, “this case may not have truly involved the Establishment Clause” at all.63 While I suspect that Justice Thomas was correct about this, the question remains, how could he know? For Christians, the cross is, of course, a symbol and an expression of the most profound mysteries of their faith; for the Klan, though, it is more reasonably regarded as a vehicle for threats, intimidation, and the political posturing of nativists, racists, and bigots.64 Similarly, a swastika tattooed on an angry skinhead probably says, and is intended to say, something very different than one displayed by a devout Hindu.65 And when Mother Teresa held her rosary in public, she was, it seems fair to say, saying something quite different than whatever it is that Madonna Ciccone says when she wears rosary beads while performing.66
The Court’s recent decisions in Boy Scouts of America v. Dale67 and Mitchell v. Helms68 touch on similar problems. In Dale, the issue was whether a state law ban on dismissing an assistant scoutmaster because he is gay unconstitutionally burdened the Scouts’ First Amendment right of expressive association.69 The general rule, the Justices agreed, is that “an expressive association may exclude an unwanted member if to include him would significantly undermine its expressive capabilities,” or would alter, distort, or commandeer the content [*PG786]of the messages expressed.70 In order to decide, then, whether the anti-discrimination norms embodied in the State’s law had to yield to the Scouts’ freedoms of association and expression, the Court had to determine, first, what the Scouts’ message actually was.
The Supreme Court of New Jersey had determined that, because promotion of “the view that homosexuality is immoral” was not a “shared goal of Boy Scout members,” the application of the State’s anti-discrimination law in Mr. Dale’s case would not “affect in any significant way [the Boy Scouts’] existing members’ ability to carry out their various purposes.”71 That is, because the Scouts’ purpose and message were not really what the Scouts said they were, the state-law requirement that it not discriminate against gay members and leaders would neither burden nor alter that message.72
But the Court disagreed. Like the New Jersey court, Chief Justice Rehnquist asked “whether the forced inclusion of Dale as an assistant scoutmaster would significantly affect the Boy Scouts’ ability to advocate public or private viewpoints,” and he acknowledged that “[t]his inquiry necessarily requires us first to explore, to a limited extent, the nature of the Boy Scouts’ view of homosexuality.”73 The Dale majority was reluctant, though, to second-guess the Scouts with respect to the content or consistency of its message or the extent to which that message would be burdened or altered by having a gay man as an assistant scoutmaster: Just “[a]s we give deference to an association’s assertions regarding the nature of its expression,” the Chief Justice insisted, “we must also give deference to an association’s view of what would impair its expression.”74 And so, the Court accepted—pretty much at face value—the Scouts’ assertion that it teaches, and that one of its pur[*PG787]poses is to teach, certain things about the morality of human sexuality, one of which is that homosexuality is wrong.75
Having arrived at this interpretation, the Court then concluded that New Jersey’s public accommodations law threatened to co-opt the Scouts’ expression and muddy its clarity by forcing it “to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexuality as a legitimate form of behavior.”76 For present purposes, though, the point is that before the Court could decide whether the anti-discrimination laws unconstitutionally burdened the Scouts’ freedom of expressive association, it first had to identify and interpret its expression.
At first glance, Mitchell v. Helms is an entirely different case, presenting entirely different questions. There, the Court decided that the federal “Chapter 2” program—through which government-owned educational materials and equipment are loaned to public, private, and parochial schools—does not violate the First Amendment.77 A legal stumbling block for the program had been the Court’s focus in previous school-aid cases on whether or not the schools in question were “pervasively sectarian.”78
Justice Thomas would have “buried” this inquiry.79 As he pointed out, not only had the pervasively-sectarian inquiry too often served as a way to launder anti-Catholic biases,80 the inquiry itself was “offensive”: “[C]ourts should refrain . . . from trolling through a person’s or institution’s religious beliefs,” and from searching for signs that the [*PG788]school “take[s] . . . [its] religion seriously, . . . [or] think[s] that . . . religion should affect the whole of . . . [our] lives.”81
Justice Thomas’s aversion to such “trolling” brings us back to the line-drawing required by the conditional-exemption scheme. If, as he suggests, caution is appropriate when courts examine the beliefs and practices of an aid-receiving educational institution for evidence of excessive or insufficiently compartmentalized religiosity, it seems warranted as well when government attempts to separate out and measure the politics—or, again, the insufficiently compartmentalized religiosity—in a religious association’s activities and expression.
Another illustration: About five years ago, the Department of Defense prohibited military chaplains from urging parishioners to join a postcard campaign calling for the override of President Clinton’s veto of the partial-birth-abortion ban.82 The Department insisted that such exhortations would violate departmental regulations as well as federal laws governing lobbying activities by government employees.83 Father Vincent Rigdon, a Catholic priest, joined by the Muslim American Military Association, a rabbi with the Air Force, and others, objected to the order, insisting that those he served “have a right to a real chaplain, not a tame one, and to real homilies, not censored ones.”84
Judge Stanley Sporkin, of the United States District Court for the District of Columbia, agreed with Father Rigdon. He concluded, among other things, that the military directive prohibiting chaplains from encouraging churchgoers to participate in the pro-life postcard [*PG789]campaign “muzzl[ed] . . . religious guidance” in violation of the First Amendment.85 Of particular interest, though, is the fact that Judge Sporkin explicitly rejected the government’s claim that Father Rigdon’s pro-life expression was “really ‘political,’ not religious.” After all, the court noted, the government had not provided any “basis for the Court in this case to distinguish the political from the religious.”86 He continued:
Father Rigdon’s desire to urge his Catholic parishioners to contact Congress on legislation that would limit what he and many other Catholics believe to be an immoral practice . . . is no less religious in character than telling parishioners that it is their Catholic duty to protect every potential human life by not having abortions and by encouraging others to follow suit. Writing to Congress is but one way in which Catholics can fulfill this duty, and it coincidentally involves communicating with the political branches of government.
What’s more, Judge Sporkin insisted, “[e]ven assuming, arguendo, that Father Rigdon’s intended speech is in some sense political, 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.”87 Judge Sporkin would have shared, I suspect, Justice Thomas’s expressed reluctance in Mitchell to “troll[] through a person’s or institution’s religious beliefs,” searching warily for signs that these beliefs are being [*PG790]taken too seriously, accumulating excessive “political overtones,” and bursting the barriers of the private sphere where they belong.88
Consider, finally, the Supreme Court’s recent decision in Good News Club v. Milford Central School.89 The case involved Milford’s “Community Use of School Facilities Policy,” which permits Milford residents and local groups to use school facilities for “social, civic and recreational meetings and entertainment events and other uses pertaining to the welfare of the community, provided that such uses shall be nonexclusive and shall be open to the general public.”90 Policies like this are common, make good sense, and serve the common good. By opening public property to private groups, they support the web of mediating institutions and associations—the “little platoons” of democracy—that is essential to a diverse and thriving civil society. But the Milford Policy did not permit all “uses pertaining to the welfare of the community” in school facilities; it stated that “[s]chool premises shall not be used by any individual or organization for religious purposes.”91
The Good News Club is a “nondenominational,” “community-based Christian youth organization open to children between the ages of six and twelve” whose “stated purpose is to instruct children in family values and morals from a Christian perspective.”92 When the Club asked permission to use the school cafeteria for one hour a week, its request was denied. As the Milford Superintendent explained, “[y]our group’s request to use the school facilities indicated such use would be for the purpose of ‘hearing a bible lesson and memorizing scripture.’ I understand such proposed uses would be the equivalent of religious worship, which is prohibited under [the] policy, rather than the expression of religious views or values on a secular subject matter.”93
[*PG791] The Club then filed a civil rights lawsuit, claiming that Milford’s refusal violated, among other things, the free speech rights of the Club and its members. The Club evidently conceded that Milford could prohibit the use of its facilities for “religious purposes”; it simply insisted that its activities were “secular in nature,” much like those of the Boy Scouts or the 4-H Club. “The only difference,” the Club contended, was that the Club “conveys its message ‘from a Christian perspective by using Bible stories, games, scripture, and religious songs.’”94 Therefore, Milford’s exclusion of the Club amounted to unconstitutional “viewpoint discrimination.”95
The district court agreed with Milford that the “Club’s activities are more appropriately classified as religious instruction and worship,”96 and rejected the Club’s First Amendment challenge.97 Along the way, the court provided a “detailed discussion of the Club’s activities,” one resembling, one might think, the “trolling” disapproved in Mitchell. The court emphasized, for example, that Club meetings typically involve prayer and “formal instruction” in a “classroom-type setting”; that “central to [the Club’s] ‘perspective’ is the children’s acceptance of Jesus Christ into their lives” and the view that “you need the Lord Jesus to help you to be able to give you the power actually to live a moral life”; that the Bible is used to instruct children in this perspective; that “unsaved” children are “invite[d]” by the teacher “to trust the Lord Jesus to be your Savior from sin”; and that children are “read ‘missionary stories’ that ‘spread the gospel’ and encourage Bible study.”98 These activities, the court concluded, were “characteristic of formal religious instruction” as well as “worship activities that inculcate Christian religion and values.”99 The Club’s purposes, the court stated, are to “pass along Christian faith and morality”; to emphasize the “importance of having a relationship with Christ”; to “invite” children to “accept Jesus Christ into their lives”; and to “challenge” them to “follow God’s word.”100 In the end, the court [*PG792]concluded, “Good News is a religious youth organization whose proposed use deals specifically with religious subject matter—and not . . . merely a religious perspective on secular subject matter.”101
The United States Court of Appeals for the Second Circuit affirmed. It rejected the Club’s viewpoint discrimination argument because, like the district court, it concluded, “the Good News Club is doing something other than simply teaching moral values.”102 It expressed confidence that it “is not difficult for school authorities to make the distinction between the discussion of secular subjects from a religious viewpoint and the discussion of religious material through religious instruction and prayer,” and agreed that “the activities of the Club fall clearly on the side of religious instruction and prayer.”103 As the Second Circuit saw it, the Club did not merely express a “viewpoint on morality”—”morality” being a “secular subject”—or teach that a “relationship with God is necessary to make moral values meaningful”; it also “focused on teaching children how to cultivate their relationship with God through Jesus Christ,” a “quintessentially religious” project.104
In my view,105 the Second Circuit’s confidence that it is “not difficult for school authorities to make the distinction between the discussion of secular subjects from a religious viewpoint and the discussion of religious material through religious instruction and prayer” was quite misplaced.106 Judge Jacobs, in dissent, put the matter well: “When the subject matter is morals and character, it is quixotic to attempt a distinction between religious viewpoints and religious subject matters[,]”107 and “[w]henever public officials . . . evaluate private speech ‘to discern [its] underlying philosophic assumptions respect[*PG793]ing religious theory and belief,’ the result is ‘a denial of the right of free speech.’”108 This is because, again, courts and governments lack the competence and cannot reasonably be trusted to identify that precise point where private expression crosses an imagined Rubicon of religiosity separating religious viewpoints on secular subjects—such as morals—from religious instruction and worship.109
Subsequently, the Supreme Court reversed the Second Circuit’s decision, with six Justices agreeing that it violated the First Amendment’s viewpoint-neutrality requirement to deny the Club equal access to Milford’s facilities.110 Interestingly, though, Justice Thomas’s opinion for the majority had little to say about the wisdom or constitutionality of government efforts to draw the line between religious worship, on the one hand, and the religious perspective, on the other.111 Instead, the Court stated that even “quintessentially relig[*PG794]ious” expression can, for First Amendment purposes, be “characterized properly as the teaching of morals and character development from a particular viewpoint.”112 The Court saw “no logical difference in kind between the invocation of Christianity by the Club and the invocation of teamwork, loyalty, or patriotism by other associations to provide a framework for their lessons,” and refused to conclude that “reliance on Christian principles taints moral and character instruction in a way that other foundations for thought or viewpoints do not.”113
Although the Good News Court reversed the Second Circuit’s decision, its conclusion, in a footnote, that the Club’s activities were not “mere religious worship, divorced from any teaching of moral values,” suggests the same misplaced confidence in courts’ powers of theological interpretation as did the ruling of the Court of Appeals.114 What criteria, we might ask, would the Court have used to identify “mere religious worship” that was “divorced from any teaching of moral values” or—returning to the tax exemption—from other “secular” matters, like “politics”? Justice Stevens’s dissent raises similar, and perhaps even thornier, problems. His fear was not that the Club’s activities might have crossed the line between discussion from a religious viewpoint and “worship,” but instead the boundary between such discussion and “religious proselytizing.”115 But again, how is government possibly to identify the point at which a religious speaker starts [*PG795]caring too much about what she says, or trying too hard to convince her listeners?116
I cannot provide here the detailed discussion that Good News deserves and will certainly provoke. For my purposes, though, the point to be emphasized is this: At the heart of the Good News case is the same constitutional and theological problem that lurks in the prohibitions on “political” activities by tax-exempt entities. That is, the opinions in Good News, like the statutory restrictions on churches’ political activities, call for caution. They should prompt us to wonder how government is able to distinguish religious purposes from secular ones, worship from perspective, discussion from proselytization. In other words, Justice Souter’s admission in the graduation-prayer case, Lee v. Weisman, seems particularly appropriate here: “I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible,” than “comparative theology.”117
I have tried to show that for government to identify and police a boundary between religious activities and political activities is a trickier task than the Second Circuit was able to admit in Good News v. Milford Central School. To which one response might be, “Yes, it is hard, but so what?” That the line is hard to draw is not, in itself, a compelling reason not to draw it, particularly in light of the government’s asserted interests in enforcing it.118 Are there any other drawbacks, besides difficulty?
Justice Scalia might counter, as he did in Good News, by pointing to the entanglements between religion and government that would accompany comparative-theology-driven boundary maintenance by [*PG796]courts between faith and activism.119 Others might agree with the Mitchell v. Helms plurality, and reject as “offensive” the government “trolling” through beliefs that must inevitably accompany such maintenance.120 Still others might worry, citing the decision in Dale v. Boy Scouts of America, that by inspecting associations’ activities in order to identify their true import or significance, government might intrude on the freedom of expressive association.121
Let me suggest, though, another counter-response to the “so what?” question: By determining for its own purposes the meaning of religious communities’ statements and activities, and by enforcing the distinctions it draws, government subtly reshapes religious consciousness itself.122 In other words, by telling religion what it may say, really is saying, or will be deemed to have said, and by telling faith where it belongs, government molds religion’s own sense of what it is.123
Now, the Supreme Court has told us time and again—it is practically black-letter law—that “[our] Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice.”124 In the 2000 Term’s “football prayer” case, for example, a comfortable majority of the Justices reaffirmed that the “transmission of religious beliefs and worship” is a “responsibility and a choice committed to the private sphere.”125
Similar pronouncements led my colleague, Professor Bradley, to suggest in another context that “[t]he Court is now clearly committed to articulating and enforcing a normative scheme of ‘private’ religion.”126 Indeed, he argues powerfully that the Court’s post-Everson v. [*PG797]Board of Education cases “are most profitably understood as judicial attempts to move religion into the realm of subjective preference by eliminating religious consciousness.”127 In marked contrast to James Madison’s “high-stakes constitutional gamble”—his “hope[] to achieve manageable conflict fueled by diversity and freedom,” in religion as in other matters—the Court turned to privatization “as the ‘final solution’ to the problem of religious faction.”128 Its ambition—not merely the unintended effect of its decisions—is not only to confine the potentially subversive messages of religion to a “nonpublic ghetto,”129 but also to revise and privatize the messages themselves. Having acquiesced to judicial declarations that it is a private matter, and accepted that its authority is entirely subjective, religious consciousness is unable to resist the conclusion that its claims to public truth are “implausible nonsense,” and therefore cannot help but concede the field of public life and morality to government.130
Although I cannot flesh out the argument here, it strikes me that the exemption-and-restriction scheme, the line-drawing it invites, and the assumptions it reflects might also be “profitably understood” as part of a “normative scheme of ‘private’ religion.” To be clear, this privatization of religion is not simply its institutional disestablishment or an entirely appropriate respect on government’s part for individual freedom of conscience and the autonomy of religious institutions.131 Nor is the claim only that the exemption privatizes religion by deterring political activism and silencing political advocacy by religious believers and communities. It is, instead, that the exemption scheme and its administration subtly re-form religion’s conception of itself. Government evaluates and characterizes what churches say and do, and decides both what it will recognize as religious and what it will [*PG798]label as political.132 The identification of certain activities by religious associations as inappropriate irruptions of faith into the political sphere, and the criteria used to identify such irruptions, allow government to tame religion, and to “blunt [its] political saliency,” by identifying what it is not.133
If this is correct, then the privatization of religion is its re-making by government and its transformation from a comprehensive and demanding account of the world to a therapeutic “cocoon wrapped around the solitary individual.”134 It is a state-sponsored change in religious believers’ own notions of what their faith means and what it requires. It is the process by which government domesticates the churches’ evangelical vocation and convinces religion to see itself as a socially impotent force that does not belong in politics. The government tells faith communities that religion is a private matter, and, eventually, they come to believe it. But as the theologian Johann Metz has observed, the “eschatological promises of biblical tradition—liberty, peace, justice, reconciliation—cannot be made private. They force one ever anew into social responsibility.”135 And so, when religion—whether because of the didactic effects of the tax law, or for any other reason—becomes content to be what government says it is or should be, then maybe, in Chief Justice Marshall’s words, it really has been “destroyed.”136
The administration of the churches’ conditional tax exemption embroils government in the difficult business of distinguishing worship and ministry from electioneering and political advocacy. In marking these boundaries, government sends the message and reinforces the belief that religion is a private matter, of private import, for [*PG799]the private sphere. And, eventually, religion embraces and incorporates this view.
This privatization point leads to another, final, concern: That the government’s assignment of its own meanings to what churches do, and what government and law say about the place of religion in public life, threaten to further denude the “public square”137 and weaken the much-remarked structures of civil society.138 In other words, it is not only religious consciousness that suffers when faith is told its place. Rather, the privatization of faith and its retreat to the sphere assigned to it by the state will likely be accompanied by a similar retreat of authentically religious associations and by the hollowing out of civil society.139 When government constructs a boundary between religion (which is private) and public life; and when religious people and associations embrace and internalize this boundary, we should not be surprised when the churches stop functioning as intermediate institutions. Having taken their cue from the state as to what they should be, religious associations retreat to private life, to subjectivity. But a church that accepts its banishment from civil society, and whose mission is more therapeutic than transforming, cannot really be expected to serve as a buffer, to mediate between persons and the state, or to compete with the liberal state for our values and loyalties.140
This retreat is troubling, first, because even though faith ultimately inheres in persons, it also depends on institutions and associations for its transmission. History demonstrates that faith can flourish in times of persecution; nonetheless, it requires mediating associations to thrive, if only to filter and counter competing messages.141 Retreat is also regrettable because, as Professor Gaffney has suggested, “being in trouble with the State is one of the marks or sure signs of [*PG800]the church’s authenticity.”142 But a church that has retreated, and whose consciousness has been remade to cohere with state-drawn lines between spheres, is less likely to get into such trouble with government. And finally, the retreat of religious associations to the private sphere suggests an ill-founded confidence that government will not follow. But it will. The privatization of religion is a one-way “ratchet that stems the flow of religious current into the public sphere, but does not slow the incursion of political norms into the private realm.”143
We should not think that this hollowing out of civil society is bad only for religion. A free and liberal society, and the goods for which it aims, depend on a busy and crowded public square. They require—because the formation of citizens requires—the activity and voices of independent associations. They require mediating institutions to serve as social scaffolding and to “contribute[] to the public good by inculcating ideas of public and private virtue.”144 And they do this—perhaps counter-intuitively—sometimes by obstructing, rather than cooperating with, the government’s projects; they compete with, and do not merely echo or amplify, the state’s voice in the formation of persons. The classical liberal hope, remember, is that this kind of competition is more likely than state-sponsored homogenization to nurture civic virtue and produce citizens oriented toward the common good.145
Religious communities are crucial sources for the kind of counter-speech that liberal governments should expect and free societies [*PG801]require.146 The alternative is, literally, monotony.147 Recall here the president-elect’s retort to Archbishop Romero, when reminded that “there are political implications to the Gospel”: “We will take care of those,” he said.148 And surely they will. But the task of identifying those political implications, and of monitoring whatever distinctions there might be between these mere implications and the Gospel itself, is a theological task. It is not something the state can be trusted to “take care of,” though we should expect it to embrace eagerly the opportunity to harmonize, if not monotonize, these implications. I suspect, though, that “the Gospel” implies, and authentic religious consciousness should produce, some dissonance.
This brings us back to Professor Lee’s observation that the conditional tax exemption is, at bottom, the government’s way of paying churches not to talk about certain things.149 But perhaps the most important way that intermediate associations do what it is that civil-society revivalists want them to do is precisely to “talk about certain things.” Again, these associations mediate; they serve as vehicles for concerted activity by individuals, and for amplified expression to government and to the world. They also, like government, express and transmit messages of their own. We are shaped by mediating associations, even as we shape our world through them.150 These associations are at their best, it seems to me, precisely when they “talk about certain things” that government is not talking about, or is talking against. After privatization and retreat, their absence is felt most keenly in the monotonous, homogenizing sameness of the government’s own efforts to create the citizens it needs.
At this point, it would be fair to ask what solutions I propose for the problems I posit. It strikes me as sound policy for government not to impose tax burdens on associations and organizations whose pur[*PG802]pose is not to generate income and that contribute to the polity in ways other than wealth-generation. Notwithstanding the concerns I have expressed, I do not mean to suggest that government restrictions on tax-exempt organizations’ election-related activities are always unreasonable or unjustifiable.151 Likewise, I recognize that it would be difficult to remove such restrictions for religious associations, while retraining them for other tax-exempt organizations.152
In the end, I have no solution to propose other than caution. My hope for this admittedly diffuse Article is merely that it will prompt further reflection about the interpretation and categorization by government of what religious associations say and do. A more particular goal, perhaps, has been to highlight the dangers posed to authentically religious consciousness, to religious associations, to civil society—and, indeed, to persons—by government efforts to define for religious believers what is religious and what is political activity.153 As I suggested at the outset, maybe Chief Justice Marshall had a point; maybe his observation about the destructive character of the power to tax was more than a mere “seductive clich�.” Our government exercises its power to tax precisely by conditionally exempting churches from taxation. It labels their expression and activity according to its own terms and, in so doing, “destroy[s]” authentically religious consciousness and undermines the mediating structures of civil society.
There is a scene in the Book of Kings where Elijah the Prophet confronts King Ahab, who, we are told, “did more to provoke the LORD, the God of Israel, to anger than all the kings of Israel who [*PG803]were before him.”154 Ahab meets Elijah—wearily, I imagine—with this greeting, “Is that you, O Disturber of the Peace?”155 I cannot help thinking that this is how religious believers, associations, and expression should be greeted—at least sometimes—by the government. If they are not, maybe something is wrong. It strikes me that a radically privatized and insufficiently irritating faith is not all that it is called to be.156
In a similar vein, Charles Peguy, in his The Mystery of the Charity of Joan of Arc, observes that Christ “had been a good workman,” “a good carpenter,” “a good son,” “a quiet young man,” and “a good citizen . . . easy to govern . . . until the day he had begun his mission.”157 And then, Peguy continues, he “introduced disorder” and “disturbed the world.”158 Religious faith should “disturb[] the world” and religious communities should expect to be bothered by government. In Professor Shaffer’s words, faith is “nothing until it can be allowed to mess up American democratic, constitutional, legal, professional commitment.”159 Whatever tranquility government promises from privatization is, in the end, not worth the cost to discipleship.