Interesting article here (if not one I fully agree with) on municipalities looking more closely at facilities owned by organizations and trying to determine which ones are legitimate religious efforts, to be exempted from taxation, vs. which ones are simple commercial efforts, to be be treated (and taxed) like any other business.
Protection of religious freedom has traditionally been strong in this country (if myopically focused mostly on Christian denominations) as part of the long memory of discrimination and state suppression of heterodoxy in Europe. The problem is how to define that intersection between church and state; what represents legitimate religious expression, and who gets to decide. Both parts of the equation — an avaricious or intolerant state, an unscrupulous or triumphalist believer — have an incentive to tilt the scales in their favor; or, if one is to be charitable, there may be a legitimate conflict of understanding over what is an integral part of property used for religious reasons and what is not.
What's complicated things still further than municipalities scrambling for every last property tax dollar is the debate over religious freedom from other directions. The ACA and birth control coverage. Anti-discrimination laws against gays vs religious disdain for them. In all of these cases, the courts are getting dragged into defining what is a religious belief, and what religious beliefs are deferred to by the state. That carries dangers of overreach in both directions, requiring a delicate balancing act between the three parties involved: the believer, the one whose life is affected by those beliefs, and the state, and consistently applied balancing acts are not a strength of most human political systems.
I have my own biases in the matter, tending toward the state limiting the impact of one person's religious beliefs on another, but what that limitation should be, and what rises to the level of sufficient impact for the state to intervene isn't always so clear, and when it's "simply" a battle between the state and the believer, it gets even more dicey, given the power the state has to oppress.
I guess the last take-away here is that this is not just a debate between greedy city assessors and innocent faith communities; the overall religious freedom debate is being pushed forward in other ways by people pushing forward assertions about how religious freedom trumps any number of other social institutions and laws. The principles established in one branch of the debate will almost certainly come into play in the other, and folk who are boldly asserting how their religious freedom involves every action they take and every social interaction they have may be the ones themselves who force the courts to put stricter limits on that very freedom they claim.
Who Should Define Religion: Believers or Bureaucrats?
The Massachusetts Supreme Court will decide whether a local shrine should be tax-exempt—a decision that could have broad implications for faith organizations in America.
Taxation should not be tied to the definition of religion, it should instead be tied to the definition of charity.
Taxation of religious entities and 1st Amendment religion rights cases like re the ACA and LGBT+ aren't really the same areas of law (2 different Constitutional Clauses, and courts follow 2 different legal analyses). But in neither type is it an issue of who gets to "decide" what religious belief is.
The general issue is to what extent are the activities of a religious entity connected to their religious nature. Neither area of legal analysis looks at defining religious belief of the party at issue. (I'm happy to explain this legal area more, if you want.)
The end of the article touches on a policy (as opposed to legal) consideration govts ought to pay attention to: to what extent is the activity one where govt (i.e., the taxpayer) will end up taking up the slack, because the religious entity can no longer afford to do it, or to do it as much.
Ulterior motives to stick it to religion could end up costing the community real dollars in the end. The motives of the local tax-'em advocates are worth an objective look too.
+andrew mcmillan For better or worse (and for historic reasons that actually made a lot of sense), religion, as an authentic or organized expression of personal conscience in private and in a corporate setting, is protected from taxation in a fashion similar to charity. In part this stems from churches doing charitable work. In part it stems from the ability of the state to use taxation to crush religious communities.
+Anne-Marie Clark It's true that legally the two are separate issues, but from a social / cultural perspective, they fall into a similar bucket: defining what actions (or property, etc.) are an intrinsic part of a religious expression, and therefore subject to a much higher test before the government can act against them.
Also (and I'll betray a degree of legal ignorance here), wasn't RFRA originally set up around churches and zoning laws, etc., but used as part of the rationale in Hobby Lobby and the like?
+Dave Hill I agree that it has historically been the case that religion has had this special status, I just disagree that we should use "because it's traditional" as a reason for it's continuation.
+Dave Hill I searched a bit to try to find out more about the case, but didn't find actual legal filings. I did find this, which suggests this is more of a plain old tax fight and a local-govt entity that doesn't quite have its ducks in a row or bit off more than it could handle. If you see more about the case itself, or the eventual decision by the court, let me know, and I'll try to look for more. I'm interested, because my local area has a Catholic shrine pretty much exactly like this one.
See info at http://turnto10.com/news/local/la-salette-other-religious-groups-make-case-before-sjc-to-remain-tax-exempt
Regarding your question about RFRA, no, the original (federal) RFRA (1993) was a reaction to a SCOTUS employment case (Smith), authored by Scalia, ironically, that said that a guy that got fired for using a drug (peyote — used in his Native American spiritual practice) could be denied unemployment benefits from the govt, mostly because the govt hadn't intended the benefits-rule law to be about religion.
Bill Clinton and a Democratic-majority Congress passed that original federal RFRA, that made it harder than that for govt to win cases, so that little guys' religious practices were more protected from govt intrusion than Scalia thought they should be. Ironic, huh?
Then Oregon (where the peyote case happened, and where I live and practice law) passed a law so the peyote was then ok.
Also, +Dave Hill , here's a good, concise summary on the Constitutional issue:
http://law.justia.com/constitution/us/amendment-01/05-tax-exemptions-of-religious-property.html
Tax Exemptions of Religious Property
Tax Exemptions of Religious Property.—Every State and the District of Columbia provide for tax exemptions for religious institutions, and the history of such exemptions goes back to the time of our establishment as a polity. The only expression by a Supreme Court Justice prior to 1970 was by Justice Brennan, who deemed tax exemptions constitutional because the benefit conferred was incidental to the religious character of the institutions concerned.178 Then, in 1970, a nearly unanimous Court sustained a state exemption from real or personal property taxation of “property used exclusively for religious, educational or charitable purposes” owned by a corporation or association which was conducted exclusively for one or more of these purposes and did not operate for profit.179 The first prong of a two-prong argument saw the Court adopting Justice Brennan’s rationale. Using the secular purpose and effect test, Chief Justice Burger noted that the purpose of the exemption was not to single out churches for special favor; instead, the exemption applied to a broad category of associations having many common features and all dedicated to social betterment. Thus, churches as well as museums, hospitals, libraries, charitable organizations, professional associations, and the like, all non-profit, and all having a beneficial and stabilizing influence in community life, were to be encouraged by being treated specially in the tax laws. The primary effect of the exemptions was not to aid religion; the primary effect was secular and any assistance to religion was merely incidental.180
For the second prong, the Court created a new test, the entanglement test,181 by which to judge the program. There was some entanglement whether there were exemptions or not, Chief Justice Burger continued, but with exemptions there was minimal involvement. But termination of exemptions would deeply involve government in the internal affairs of religious bodies, because evaluation of religious properties for tax purposes would be required and there would be tax liens and foreclosures and litigation concerning such matters.182
178 “If religious institutions benefit, it is in spite of rather than because of their religious character. For religious institutions simply share benefits which government makes generally available to educational, charitable, and eleemosynary groups.” Abington School Dist. v. Schempp, 374 U.S. 203, 301 (1963) (concurring opinion).
179 Walz v. Tax Comm'n, 397 U.S. 664 (1970). Justice Douglas dissented.
180 397 U.S. at 672-74.
181 See discussion under “Court Tests Applied to Legislation Affecting Religion,” supra.
182 397 U.S. at 674-76.
While the general issue is now settled, it is to be expected that variations of the exemption upheld in Walz will present the Court with an opportunity to elaborate the field still further.183 For example, the Court determined that a sales tax exemption applicable only to religious publications constituted a violation of the Establishment Clause,184 and, on the other hand, that application of a general sales and use tax provision to religious publications violates neither the Establishment Clause nor the Free Exercise Clause.185
183 For example, the Court subsequently accepted for review a case concerning property tax exemption for church property used as a commercial parking lot, but state law was changed, denying exemption for purely commercial property and requiring a pro rata exemption for mixed use, and the Court remanded so that the change in the law could be considered. Differderfer v. Central Baptist Church, 404 U.S. 412 (1972).
184 Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) .
185 Jimmy Swaggart Ministries v. California Bd. of Equalization, 493 U.S. 378 (1990). Similarly, there is no constitutional impediment to straightforward application of 26 U.S.C. § 170 to disallow a charitable contribution for payments to a church found to represent a reciprocal exchange rather than a contribution or gift. Hernandez v. Commissioner, 490 U.S. 680 (1989).
+Anne-Marie Clark Thanks for the info.
I may have been thinking of City of Boerne v. Flores, 521 U.S. 507 (1997), which did involve a RFRA suit by a church wanting to enlarge a church that was considered a state historic building. In that case, SCOTUS struck down the applicability of RFRA to state law, which in turn led to the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000.
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