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[UNDER CONSTRUCTION]

Walz v. Tax Commission of City of New York,
397 U.S. 664 (1970).

Walz is a key Supreme Court case on this issue, and illustrates the inconsistency, illogic, and unconstitutional reasoning upon which religious tax exemption is justified. Read the decision yourself. (See below for the dissenting opinion of Justice Douglas.)

______________________________

BURGER, J., Opinion of the Court

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

Appellant, owner of real estate in Richmond County, New York, sought an injunction in the New York courts to prevent the New York City Tax Commission from granting property tax exemptions to religious organizations for religious properties used solely for religious worship. The exemption from state taxes is authorized by Art. 16, § 1, of the New York Constitution, which provides in relevant part:

Exemptions from taxation may be granted only by general laws. Exemptions may be altered or repealed except those exempting real or personal property used exclusively for religious, educational or [p*667] charitable purposes as defined by law and owned by any corporation or association organized or conducted exclusively for one or more of such purposes and not operating for profit. [n1]

The essence of appellant's contention was that the New York City Tax Commission's grant of an exemption to church property indirectly requires the appellant to make a contribution to religious bodies, and thereby violates provisions prohibiting establishment of religion under the First Amendment which, under the Fourteenth Amendment, is binding on the States. [n2]

Appellee's motion for summary judgment was granted, and the Appellate Division of the New York Supreme Court, and the New York Court of Appeals affirmed. We noted probable jurisdiction, 395 U.S. 957 (1969), and affirm.

Prior opinions of this Court have discussed the development and historical background of the First Amendment in detail. See Everson v. Board of Education, 330 U.S. 1 (1947); Engel v. Vitale, 370 U.S. 421 (1962). It would therefore serve no useful purpose to review in detail the background of the Establishment and Free [p*668] Exercise Clauses of the First Amendment or to restate what the Court's opinions have reflected over the years.

It is sufficient to note that, for the men who wrote the Religion Clauses of the First Amendment, the "establishment" of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity. In England, and in some Colonies at the time of the separation in 1776, the Church of England was sponsored and supported by the Crown as a state, or established, church; in other countries, "establishment" meant sponsorship by the sovereign of the Lutheran or Catholic Church. See Engel v. Vitale, 370 U.S. at 428 n. 10. See generally C. Antieau, A. Downey, & E. Roberts, Freedom from Federal Establishment (1964). The exclusivity of established churches in the 17th and 18th centuries, of course, was often carried to prohibition of other forms of worship. See Everson v. Board of Education, 330 U.S. at 9-11 ; L. Pfeffer, Church, State and Freedom 71 et seq. (1967).

The Establishment and Free Exercise Clauses of the First Amendment are not the most precisely drawn portions of the Constitution. The sweep of the absolute prohibitions in the Religion Clauses may have been calculated, but the purpose was to state an objective, not to write a statute. In attempting to articulate the scope of the two Religion Clauses, the Court's opinions reflect the limitations inherent in formulating general principles on a case by-case basis. The considerable internal inconsistency in the opinions of the Court derives from what, in retrospect, may have been too sweeping utterances on aspects of these clauses that seemed clear in relation to the particular cases, but have limited meaning as general principles.

The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a [p*669] logical extreme, would tend to clash with the other. For example, in Zorach v. Clauson, 343 U.S. 306 (1952), MR. JUSTICE DOUGLAS, writing for the Court, noted:

The First Amendment, however, does not say that, in every and all respects, there shall be a separation of Church and State. Id. at 312 . We sponsor an attitude on the part of government that shows no partiality to any one group, and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. Id. at 313 .

MR. JUSTICE HARLAN expressed something of this in his dissent in Sherbert v. Verner, 374 U.S. 398 (1963), saying that the constitutional neutrality imposed on us is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation. Id. at 422 . The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts, there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.

Each value judgment under the Religion Clauses must therefore turn on whether particular acts in question are intended to establish or interfere with religious beliefs and practices or have the effect of doing so. Adherence to the policy of neutrality that derives from an accommodation of the Establishment and Free Exercise Clauses [p*670] has prevented the kind of involvement that would tip the balance toward government control of churches or governmental restraint on religious practice.

______________________________

JUSTICE DOUGLAS DISSENT

DOUGLAS, J., Dissenting Opinion

MR. JUSTICE DOUGLAS, dissenting.

Petitioner is the owner of real property in New York, and is a Christian. But he is not a member of any of the religious organizations, "rejecting them as hostile." The New York statute exempts from taxation real property "owned by a corporation or association organized exclusively for . . . religious . . . purposes" and used "exclusively for carrying out" such purposes. [n1] Yet nonbelievers who own realty are taxed at the usual rate. The question in the case therefore is whether believers -- organized in church groups -- can be made exempt from real estate taxes merely because they are believers, while nonbelievers, whether organized or not, must pay the real estate taxes.

My Brother HARLAN says he "would suppose" that the tax exemption extends to "groups whose avowed tenets may be anti-theological, atheistic, or agnostic." Ante at 697 . If it does, then the line between believers and nonbelievers has not been drawn. But, with all respect, there is not even a suggestion in the present record that the statute covers property used exclusively by organizations for "anti-theological purposes," "atheistic purposes," or "agnostic purposes."

In Torcaso v. Watkins, 367 U.S. 488, we held that [p*701] a State could not bar an atheist from public office in light of the freedom of belief and religion guaranteed by the First and Fourteenth Amendments. Neither the State nor the Federal Government, we said, can constitutionally pass laws or impose requirements which aid all religions as against nonbelievers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs. Id. at 495 .

That principle should govern this case. There is a line between what a State may do in encouraging "religious" activities, Zorach v. Clauson, 343 U.S. 306 , and what a State may not do by using its resources to promote "religious" activities, McCollum v. Board of Education, 333 U.S. 203 , or bestowing benefits because of them. Yet that line may not always be clear. Closing public schools on Sunday is in the former category; subsidizing churches, in my view, is in the latter. Indeed, I would suppose that, in common understanding, one of the best ways to "establish" one or more religions is to subsidize them, which a tax exemption does. The State may not do that any more than it may prefer "those who believe in no religion over those who do believe." Zorach v. Clauson, supra, at 314 .In affirming this judgment, the Court largely overlooks the revolution initiated by the adoption of the Fourteenth Amendment. That revolution involved the imposition of new and far-reaching constitutional restraints on the States. Nationalization of many civil liberties has been the consequence of the Fourteenth Amendment, reversing the historic position that the foundations of those liberties rested largely in state law.

The process of the "selective incorporation" of various provisions of the Bill of Rights into the Fourteenth Amendment, although often provoking lively disagreement [p*702] at large as well as among the members of this Court, has been a steady one. It started in 1897 with Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, in which the Court held that the Fourteenth Amendment precluded a State from taking private property for public use without payment of just compensation, as provided in the Fifth Amendment. The first direct holding as to the incorporation of the First Amendment into the Fourteenth occurred in 1931, in Stromberg v. California, 283 U.S. 359 , a case involving the right of free speech, although that holding in Stromberg had been foreshadowed in 1925 by the Court's opinion in Gitlow v. New York, 268 U.S. 652 . As regards the religious guarantees of the First Amendment, the Free Exercise Clause was expressly deemed incorporated into the Fourteenth Amendment in 1940 in Cantwell v. Connecticut, 310 U.S. 296 , although that holding had been foreshadowed in 1923 and 1934 by the Court's dicta in Meyer v. Nebraska, 262 U.S. 390 , 399 , and Hamilton v. Regents, 293 U.S. 245, 262. The Establishment Clause was not incorporated in the Fourteenth Amendment until Everson v. Board of Education, 330 U.S. 1 , was decided in 1947.

Those developments in the last 30 years have had unsettling effects. It was, for example, not until 1962 that state-sponsored, sectarian prayers were held to violate the Establishment Clause. Engel v. Vitale, 370 U.S. 421 . That decision brought many protests, for the habit of putting one sect's prayer in public schools had long been practiced. Yet if the Catholics, controlling one school board, could put their prayer into one group of public schools, the Mormons, Baptists, Moslems, Presbyterians, and others could do the same once they got control. And so the seeds of Establishment would grow, and a secular institution would be used to serve a sectarian end. [p*703] Engel was as disruptive of traditional state practices as was Stromberg. Prior to Stromberg, a State could arrest an unpopular person who made a rousing speech on the charge of disorderly conduct. Since Stromberg, that has been unconstitutional. And so the revolution occasioned by the Fourteenth Amendment has progressed as Article after Article in the Bill of Rights has been incorporated in it and made applicable to the States.

Hence, the question in the present case makes irrelevant the "two centuries of uninterrupted freedom from taxation," referred to by the Court. Ante at 678 . If history be our guide, then tax exemption of church property in this country is indeed highly suspect, as it arose in the early days when the church was an agency of the state. See W. Torpey, Judicial Doctrines of Religious Rights in America 171 (1948). The question here, though, concerns the meaning of the Establishment Clause and the Free Exercise Clause made applicable to the States for only a few decades, at best.

With all due respect, the governing principle is not controlled by Everson v. Board of Education, supra. Everson involved the use of public funds to bus children to parochial as well as to public schools. Parochial schools teach religion, yet they are also educational institutions offering courses competitive with public schools. They prepare students for the professions and for activities in all walks of life. Education in the secular sense was combined with religious indoctrination at the parochial schools involved in Everson. Even so, the Everson decision was five to four, and, though one of the five, I have since had grave doubts about it, because I have become convinced that grants to institutions teaching a sectarian creed violate the Establishment Clause. See Engel v. Vitale, supra, at 443-444 (Douglas, J., concurring). [p*704]

This case, however, is quite different. Education is not involved. The financial support rendered here is to the church, the place of worship. A tax exemption is a subsidy. Is my Brother BRENNAN correct in saying that we would hold that state or federal grants to churches, say, to construct the edifice itself would be unconstitutional? What is the difference between that kind of subsidy and the present subsidy? [n2]

The problem takes us back where Madison was in 1784 and 1785, when he battled the Assessment Bill [n3] in Virginia. That bill levied a tax for the support of Christian churches, leaving to each taxpayer the choice as to "what society of Christians" he wanted the tax paid, and, absent such designation, the tax was to go for education. Even so, Madison was unrelenting in his opposition. As stated by Mr. Justice Rutledge:

The modified Assessment Bill passed second reading in December, 1784, and was all but enacted. [p*705] Madison and his followers, however, maneuvered deferment of final consideration until November, 1785. And before the Assembly reconvened in the fall, he issued his historic Memorial and Remonstrance. Everson v. Board of Education, supra, at 37 (dissenting opinion).

The Remonstrance [n4] stirred up such a storm of popular protest that the Assessment Bill was defeated. [n5]

______________________________

The Burger Court had a clear mandate to uphold the constitution, but instead relied on all manner of nonsense to uphold a forgone conclusion: that a particular range of religious sects are, de facto, good. No athiestic, agnostic, pagan, or female-deity oriented organizations enjoy carte blanche tax subsidy (nor are these exemptions defended with so much zeal). Justice Scalia demonstrates that twisted logic and religious preference reign Supreme to this day. (See, e.g., Locke, Governor or Wisconsin et al. v. Davey, (2004)).

tax exemption for religious organizations has troubled patriots and conscientious, religious citizens alike since the birth of our great nation. It doesn't have to continue. Like the end of slavery, and womens suffrage, our days of tax bondage to the church are numbered.

For an index with brief summaries of other U.S. tax cases concerning religious exemptions see http://atheism.about.com/library/decisions/indexes/bldec_TaxIndex.htm

see also:http://religiousfreedom.lib.virginia.edu/court/ for a broader overview of court decisions involving religion in America.

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