Gay Activists Threaten Church Tax-Exempt Status
Berg, Thomas C.
TCBERG at stthomas.edu
Wed Jun 9 16:12:41 PDT 2004
I won't quarrel about Rust, which I'm not fond of as a constitutional
decision in the first place -- as Marty originally noted, it gives too
little consideration to the spillover cost involved in segregating
constitutionally protected activity into an entirely different entity or
facility from the subsidized one.
I appreciate Alan's point about the restrictions on candidate
electioneering. But I don't think that his argument carries over to the
restriction on lobbying concerning issues or legislation, which is what
began this thread. Government speaks on those issues, and it can only speak
in secular terms and rationales, at least if the Establishment Clause is
interpreted vigorously. There thus remains an issue about a distortion of
the public sphere in favor of the secular.
As I said, one might respond to that secularization of the public sphere in
various ways. One response would be special concern for protecting
religious speech in public; another is special concern for protecting
conscientious religious exercise. My intuition is that the latter would
tend to favor publicly active faiths, and maybe larger ones, while the
latter would tend to benefit more private faiths and smaller ones.
But the thing that one shouldn't do is complain about "special protection"
for religion without taking into account the special limits placed on
religion in the context of government speech and rationales.
From: A.E. Brownstein [mailto:aebrownstein at ucdavis.edu]
Sent: Wed 6/9/2004 4:56 PM
To: Law & Religion issues for Law Academics
Subject: RE: Gay Activists Threaten Church Tax-Exempt Status
Sorry to be late in responding to Tom's post, but I was out of town.
On the first point, Tom and I share very different intuitions. If we are
basing claims on the relationship between duty or function and message, I
would think a physician in a family planning clinic has a at least as
strong if not a stronger claim to the right to inform patients about
medical choices germane to the specific health issues which brought to
patient to his or her office as a member of the clergy does to utilize his
or her pulpit for electioneering purposes.
On the broader question Tom raises, I certainly agree that some sense of
balance, or quid pro quo offsets, or neutrality influences the relationship
between religion specific accommodations or exemptions grounded on free
exercise concerns and religion specific limitations grounded on
Establishment clause concerns. Working out how that ledger is to be
balanced is no easy job -- although Tom is correct that I think it is
better accomplished by exempting religious practices and institutions from
government interference and control while maintaining a regime of viewpoint
neutrality with regard to public and political expression.
But however one ultimately works that issue out, I think the case for
providing religious leaders speech exemptions for partisan electioneering
is extremely weak. Unlike moral, policy, or ethical issues, where the
Establishment Clause limits religious expression by government while
permitting the expression of secular perspectives by state agencies, there
is considerable uniformity with regard to the ban on partisan
electioneering. Government agencies and institutions are prohibited from
using their resources and status to support political candidates (at least
in their official capacities) just as they are prohibited from using their
resources and status to support religious messages. On this issue, there is
no Establishment Clause distortion to correct or offset because government
does not play a partisan expressive role. Secular messages supporting
particular candidates get no preference over religious messages supporting
candidates because government agencies and institutions do not officially
support candidates for election.
At 01:46 PM 6/6/2004 -0500, you wrote:
>I'm not sure that the doctors in Rust had the same kind of claim that they
>needed to speak in their capacity in the funded program. The Court said
>that the Title X programs did not purport to be giving general medical
>advice -- while churches may and do propose to speak as a unitary matter on
>all aspects of life. There also is a good argument for some distinction
>between tax exemptions and affirmative government aid (the distinction
>recognized in Walz v. Tax Commission).
>But let me raise a broader issue, which I think Alan and I have discussed
>list before. Why must we hold that religious speech may *never -- no
>what the circumstances --* receive any protection that comparable secular
>speech does not receive? Why can't truly privately-initiated religious
>speech sometimes receive more protection than secular counterparts, if
>is otherwise a strong case for such protection? (A "strong case" might
>include, e.g., a distinctive feature of religion like a doctrinally
>polity; a major burden on the religious speech; and no compelling reason to
>restrict the speech.) The answer, reflected in Alan's previous posts, is
>that greater protection would distort the marketplace of ideas in favor of
>religious speech. But isn't there already some distortion of the
>marketplace of ideas *against* religious speech because of the fact that
>many entities of government -- which are of course significant participants
>in political and ideological debate -- cannot espouse any religious ideas,
>or any explicitly religious arguments for their proposed public policies?
>Governments can explicitly espouse secular ideas and rationales, but not
>religious ones. (That I took to be Alan's position in the discussion that
>arose out of the Pledge case, and I assume it is the position of many if
>most people who think that religious speech should get no more protection
>than secular speech.)
>Although governments also cannot espouse explicitly anti-religious views,
>seems to me that this is less of a burden on the "anti-religious", because
>secular views logically overlap more with anti-religious views than with
>religious views. The person who rejects religious views as a basis for
>addressing issues usually affirmatively relies on secular views instead,
>therefore can be quite happy with secular arguments by government --
>the serious religious believer has to think that to speak about issues in
>wholly secular terms misses an important element.
>There are good reasons, in my view, to keep the government out of
>espousing religious views and religious perspectives. But we should also
>recognize that this restriction itself affects the marketplace of ideas,
>with an increasing effect as the restriction becomes more and more
>unbending. Perhaps this fact requires or allows some special concern that
>private entities *not* be restricted in espousing religious views in the
>ideological marketplace. Two central sentences in Lee v. Weisman, taken
>together, might summarize this outlook: "In religious debate or expression
>the government is not a prime participant, for the Framers deemed religious
>establishment antithetical to the freedom of all." "The design of the
>Constitution is that preservation and transmission of religious beliefs and
>worship is a responsibility and a choice committed to the private sphere,
>which itself is promised freedom to pursue that mission." Along with the
>distinctive restriction on government transmission of religious beliefs
>comes a distinctive promise to private religious entities that they can
>transmit their beliefs -- logically, quite independent of whether secular
>beliefs and perspectives can be transmitted.
>I don't have a theory worked out about how far this distinctive protection
>-- this compensation for the disability on government religious speech --
>can or should go. Perhaps it shouldn't apply to political speech such as
>lobbying or electioneering; perhaps it should be limited to religiously
>grounded conduct as opposed to speech, as I think Alan might respond. All
>I'm saying is that the governing assumption that religious speech by
>entities must always be treated no better than secular speech needs to be
>explicitly defended -- as against the claim that the marketplace of ideas
>already skewed by the bar on government explicitly espousing religious
>From: A.E. Brownstein [mailto:aebrownstein at ucdavis.edu
<mailto:aebrownstein at ucdavis.edu> ]
>Sent: Fri 6/4/2004 12:44 PM
>To: Law & Religion issues for Law Academics
>Subject: RE: Gay Activists Threaten Church Tax-Exempt Status
>Thanks, Tom. Your post and Doug's are helpful (at least to me). I think you
>are both right that a religious leader technically on the payroll of a
>(c)(4) organization who delivered regular partisan political sermons from
>the church pulpit or through pastoral letters would raise questions from
>But it seems to me that this alters the discussion a bit. The focus is not
>so much on an individual's role as a spiritual leader, but on the location,
>format, and forum in which they engage in political activities.
>I certainly agree that any government control over what occurs in a
>religious service in a house of worship raises free exercise issues. It is
>far less clear to me those issues can be resolved in the manner you
>Here, free exercise and free speech values are intractably intermingled.
>And if the focus is location and forum, then the range of analogies from a
>free speech perspective is far broader than you suggest. I am not sure
>there is any sound basis for limiting this issue from a speech perspective
>to the ability of non-profits to engage in partisan political activities.
>The question should be whether it is constitutionally problematic for
>government to require segregation of organizations engaged in subsidized or
>non-subsidized expressive activities whenever there is a distinct normative
>claim for operating in a more unitary format. Clearly, the physicians in
>Rust could raise such an argument about their normative duties as doctors
>-- and other professionals would have similar arguments.
>Also, I don't see how grounding the discriminatory rule you propose on a
>unique, normative distinction that in practical terms applies only to
>religious institutions resolves the viewpoint discrimination issue here. If
>courts are unwilling to recognize distinctive aspects of religion as a
>basis for permitting government to discriminate against religious speakers,
>I find it difficult to accept that the position that distinctive aspects of
>religion can be used to justify discrimination in favor of religious
>speakers. Accommodations that do not directly involve expressive
>activities, like the draft cases, raise very different questions and are
>more easily justified through formal generalizations.
>Accommodations of religion that distinctively empower religious messages
>and political influence raise particularly problematic concerns.
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