CHURCH TAXES AND THE ORIGINAL UNDERSTANDING OF THE ESTABLISHMENT CLAUSE.

• Author: Storslee, Mark

INTRODUCTION 112 I. CHURCH TAXES As COERCED TITHES 120 A. The Debate in Virginia 120 B. The Origins of the Argument 136 II. CHURCH TAXES AND RELIGIOUS SCHOOLS 150 A. The Former Anglican Colonies 150 B. The Middle States 157 C. The Federal Government 163 III. IDENTIFYING CHURCH TAXES 169 A. The Role of Earmarks 170 B. The Role of Individual Coercion 175 IV. SUMMARY OF THE EVIDENCE AND IMPLICATIONS 182 CONCLUSION 192 INTRODUCTION

No one likes paying for causes they find objectionable. The thought of subsidizing activities one does not like seems galling at best, an assault on freedom of conscience at worst. And given that fact, it is no wonder that the Supreme Court long ago read the Establishment Clause as containing a rule to that effect. In Everson v. Board of Education, Justice Hugo Black famously said that because the Clause forbids forcing citizens to pay for religion they oppose, "[n]o tax in any amount, large or small, can be levied to support any religious activities or institutions... whatever form they may adopt to teach or practice religion." (1) In short, the Establishment Clause meant government could not "aid" religion, especially by subsidizing religious activity. (2)

In Everson itself, the Court stopped short of applying the no-aid theory as broadly as its rhetoric suggested and upheld a program paying for bus rides to both secular and religious schools. (3) But it eventually adopted the theory wholesale. In Lemon v. Kurtzman, the Court held that the Establishment Clause forbade any government aid that had the "primary effect" of supporting religion. (4) The main upshot was a ban on funding for K-12 religious schools, no matter the government's purpose in providing funds. But as the century progressed, problems piled up.

The first one involved the Free Exercise Clause. As interpreted in Lemon, the no-aid theory categorically forbade government from financing the religious activities of private citizens. Yet both before and after Lemon, the Court held that the Free Exercise Clause required providing things like unemployment benefits to citizens whose religious practice had made them ineligible. (5) The no-aid theory thus seemed to imply that the Establishment Clause forbade exactly what the Free Exercise Clause required. (6)

There were also difficulties in application. The no-aid theory prohibited any aid that subsidized religious activity regardless of the government's purpose. (7) As a result, it required asking about the use of aid, and specifically whether the aid could be "diverted" to religious activities. (8) But because almost any form of aid can be applied toward something religious, the outcomes in the cases depended almost entirely on what different coalitions of Justices were willing to imagine in terms of use. Over time, that situation produced some strikingly unpersuasive distinctions. Paying for textbooks was permissible, but paying for maps was not. (9) Subsidizing rides to religious schools was acceptable, but rides from those schools to museums was not. (10) Paying for special education teachers in religious schools to diagnose learning difficulties was allowed, but paying for them to treat those difficulties was not. (11) In the aggregate, the results made the no-aid theory look like a guessing game, not a sound legal rule.

There was also a more fundamental problem. The no-aid theory rested on the idea that taxpayers should not be required to pay for religious activities they oppose. But in point of fact, all aid by its nature is fungible. Providing any form of aid to churches or even individual religious citizens predictably subsidizes religious activities because it leaves those groups with more money to spend on religion. (12) And as a result, the no-aid theory implied that even benefits like police and fire protection for churches were unconstitutional. To be sure, no Justice was willing to go that far. But it was difficult to explain why, at least if 'no aid' meant what it said. (13) And that fact, combined with the theory's harsh results, made it seem callous and even hostile toward religious citizens.

Given these difficulties, it is no surprise that the Court has turned to an alternative principle. In Everson, Justice Black had said that notwithstanding the no-aid theory, "the state [ought] to be... neutral in its relations with groups of religious believers and non-believers," and that government cannot exclude citizens "because of their faith, or lack of it, from receiving the benefits of public welfare legislation." (14) Justice Black did not elaborate on the normative force behind that statement, but it follows easily enough. Money and other state benefits are valuable to everyone: they influence people's choices and act as powerful tools to encourage and discourage behavior. Where religious entities provide public goods, funding them on equal terms with other providers does not encourage religion; it simply compensates these groups for a public service. But refusing to fund them solely because of religion is a penalty on religious practice. It discourages religion and undermines the Constitution's promise that government will remain neutral with respect to citizens' religious choices.

During the past two decades, the Court's cases have gradually moved closer to that view. Under current doctrine, government may provide money directly to churches and religious schools that deliver secular goods so long as it restricts the aid to secular uses. (15) The Court has also held that states may include religious schools in voucher programs so long the decision to fund them is the result of "true private choice" exercised by "individual recipients" like parents. (16) And most recently, in Espinoza v. Montana Department of Revenue, the Court held that state funding for private religious schools is not just permissible, but required in instances where the government chooses to fund comparable secular recipients. (17)

The Court's movement away from a broad no-aid theory and toward a principle of "neutrality" is now well-entrenched as a matter of precedent. Yet the Court has done little to explain how its current approach to funding under the Religion Clauses is consistent with Founding-era history. In Everson, both the majority and the dissent insisted that the history from Virginia--and especially famous statements by Thomas Jefferson and James Madison--demonstrated that the Establishment Clause stripped government of "all power... to support, or otherwise to assist any or all religions." (18) And critics of the Court's current jurisprudence continue to argue as much. According to Justice Sonia Sotomayor, for instance, the Court's modern funding jurisprudence has "no basis in the history to which the Court has repeatedly turned to inform its understanding of the Establishment Clause." (19)

Numerous scholars also agree. According to Professor Noah Feldman, the Court has "adopt[ed] a position almost squarely the opposite of the original intent of the Establishment Clause," since the Clause was meant to "guard against the possibility that a citizen's tax dollars would be used to support religious teachings with which he might possibly disagree." (20) Likewise, Richard Fallon argues that the Court's doctrine has been too lax, since "the backdrop of history" proves that the Establishment Clause "protects each of us against being taxed... to support a religion to which we do not subscribe." (21) Caroline Corbin contends the Court's insistence on neutrality is flawed, since "no reasonable person of [the Founding] era would dispute that it violated freedom of conscience to be conscripted into financially supporting a religion not one's own." (22) And many others have expressed similar views. (23)

In Espinoza, the Court took an tentative step toward answering these criticisms, observing in a brief paragraph that Founding-era Americans had provided at least some funding for religious schools. (24) That development was notable--never before had a majority of the Supreme Court offered any historical justification for its movement away from the no-aid theory. But it was also incomplete. As Justice Stephen Breyer observed in dissent, Espinoza's discussion of the historical evidence was too limited to demonstrate a clear pattern of practice, much less a principled one. (25) Nor have individual Justices filled the void. The only attempt--a solo concurrence written by Justice Clarence Thomas more than two decades ago--confined its discussion almost entirely to an exposition of James Madison's views, and did not purport to offer anything like a comprehensive analysis of the issue. (26)

The Court's failure to offer a historical explanation for its doctrine about funding for religious organizations is troubling, especially for a jurisprudence that claims to be focused on "historical practices and understandings." (27) But this Article suggests--contrary to critics and most scholars--that Founding-era history and the Court's funding jurisprudence are not actually at odds. More specifically, it suggests that the supposed divergence between Founding-era history and the Court's modern funding cases arises almost entirely from a misunderstanding of the historical record.

Since Everson, it has been widely assumed that the Founding generation believed that government was forbidden from forcing taxpayers to subsidize religious activity. On further inspection, however, that interpretation of the evidence is unconvincing. Although broad arguments against paying for religion sometimes appeared in debates over church taxes, the evidence suggests they did little to move public opinion. Rather, such arguments were frequently criticized as calling into question all taxation to support the public good, and were easily evaded by making church tax schemes more tolerant. (28) But even more importantly, the idea that taxpayers can never be required to pay for someone else's religious activity does not...