Free? exercise.

• Author: Hamilton, Marci A.
• Position: Free exercise of religion and the First Amendment; government support of religion

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

--James Madison(1)

INTRODUCTION

The United States is in the midst of the greatest wealth transfer from government to religious entities in its history.(2) The shift has been incremental and has occurred on a number of distinct fronts, and therefore has not been apparent to the casual observer. Because of the case and controversy requirement, which focuses the attention of judges and Justices on one case at a time, it is also a shift that may have been unnoticed by the judiciary and those who observe it.(3) Yet it has been a fast ride down a slippery slope about which James Madison warned over two hundred years ago. This slippery slope principle enunciated by Madison is reprinted in the epigraph at the beginning of this Article, and stands at least in part for the principle that small amounts of government aid open the door to greater amounts.

Although the courts are permitted to decide only one case at a time, in the Establishment Clause context, they typically and appropriately have considered the contemporaneous balance of power between church and state.(4) There has been an instinctual search for a balance that simultaneously empowers church and state while deterring both from overreaching. This is no easy task, but its paradoxical nature is built into the Constitution by the pairing of the Free Exercise and Establishment Clauses in the First Amendment.(5) This principle of balance has led the Court away from a dogmatic reading of the Clauses: The free exercise of religion does not give carte blanche to religion to supersede all laws.(6) And the Establishment Clause has not been read to preclude church-state relations in all circumstances.(7) I have argued previously that this search for a balance of power is the most true to constitutional intent, because it recognizes the Framers' fundamental insight that the two most authoritarian structures of human existence--religion and the state--are not static structures. Nor is the power they hold. Instead, the power they wield is malleable, and the Framers rightly assumed that both would attempt to stretch their powers in unpredictable ways.(8) Therefore, achieving a balance of power is the best that the courts can do, and bright-line rules are invitations to abuse.

Some of the most successful grabs for power are those that are hard to detect, e.g., incremental additions. A stream of financial advantages has been flowing from government to religion since the Court decided its first Establishment Clause case, Everson v. Board of Education, where it held that the government could provide school buses for children going to religious schools.(9) The current has picked up speed in recent years and has turned a trickle of government benefits into a torrent. Indeed, we have reached a point where one distinguished scholar has noted: "The [nonprofit] sector is thereby marked by a mutual dependence between government and nonprofit organizations. Neither can get along without the other."(10) The time has come to assess the state of the balance today.

In a move that would delight the deconstructionists, the word "free" in the Free Exercise Clause has been transformed from meaning "liberty" or "freedom" to its more literal denotation: costless. Thus, for religious advocates the clause has come to mean "costless exercise." Cost-free exercise can be achieved through two means: 1) relieving religious entities of all costs imposed on them by the law, from taxes and zoning requirements to clergy malpractice costs; and 2) obtaining government funds for their needs and missions. Both constitute a real transfer of wealth from government to religion.(11) As of 2001, religious entities have triumphed on both fronts.

A key problem of wealth transfer to religion lies in the structure of the Constitution: accountability. The Constitution is structured in such a way that no center of power is supposed to spin off into its own orbit.(12) Rather, each governmental entity is to be checked by other governmental structures--the federal branches mutually and the federal government by the states. Church and State also are mutually checking. All governmental entities are accountable to 'the people in some fashion, even though the people do not directly control them.(13)

Government accountability is achieved in part through the Constitution's institution of an information jurisprudence that requires a two-way communication pathway between the government and the people.(14) For example, under the Publications Clauses, Congress has an obligation to report on its proceedings and to account to the people where their tax dollars are going and how they are being spent.(15) This principle of accountability is in tension with most government aid to religion, because religion rightly resists such public inquiries into its affairs.(16) A key element to the appropriateness--and even success-of such transfers will lie in achieving accountability for the expenditure of public funds while respecting religious autonomy.

For example, religious entities have asserted a right to be autonomous of the government,(17) and have resisted financial disclosures(18) and government entanglement with their financial affairs.(19) They also have argued that government accounting requirements water down their religious mission by forcing them to separate those portions that receive government money from the other aspects of their religious organization.(20)

Because the government is restrained from delving into the books of religious institutions, the Constitution's core value of accountability regarding expenditures is inevitably frustrated, with the likely result being a struggle between religious aid recipients and the principle of accountability. As with government aid to art, the safest constitutional answer to the conundrum is to forbid government aid to the First Amendment-protected activity.(21) Just as artists' receipt of government money compromises their independence and power to challenge government hegemony,(22) religion's power and integrity is compromised by government funds, especially when those funds underwrite their mission.(23)

Far from moving toward a diminution in such funding, however, the arguments in support are proliferating. The argument is increasingly made that religious entities have a right to such wealth transfers from the government. For example, faith-healing groups, like the Christian Scientists, have argued for a right to funds from Medicare.(24) Representatives of organized religions have argued to Congress that land use and zoning regulations impose a cost that violates Free Exercise principles and therefore there should be a right to trump such laws.(25) In 1990, Jimmy Swaggart Ministries argued (unsuccessfully) that it had a right to avoid sales taxes applied to nonreligious products.(26) Professor Michael McConnell, representing parents of children attending private schools, argued to the United States Supreme Court in Mitchell v. Helms for a right to computers and other school support.(27) In addition to religious entities, both political parties are now embracing vouchers for sectarian schools and charitable choice programs that funnel government money into core, mission activities.(28) Then-candidate George W. Bush, during his acceptance speech for the Republican Party presidential nomination, went so far as to say that government cannot handle welfare but rather can be only a financial partner to religious organizations who can.(29) As President, he has made federal aid to faith-based organizations a centerpiece of his agenda.

During and after the framing of the Constitution, James Madison repeatedly warned of the dangers of state support for religious education and entities.(30) Many state constitutions banned state support for sectarian schools, and still contain such provisions.(31) Indeed, the recent Florida voucher plan stumbled on just such a provision.(32) In 1962, Leo Pfeffer declared that "every test of public opinion discloses that a substantial majority oppose federal aid to parochial schools."(33) In 1963, a church/state lawyer writing for a collection of essays on separation of church and state asserted the following:

There is no unequivocal popular consensus for public financing of church schools. On the contrary, virtually every state has retained long-standing prohibitions against the use of tax funds for the construction or maintenance of sectarian schools. Congress has never directly appropriated money for such a purpose, and while supporters of federal aid to parochial schools have combined with those opposed to federal aid for other reasons to block federal aid to the public schools, it seems clear that at congressional and executive hearings and conferences the sense of the public and the authorities has consistently been that church schools shall not be publicly financed.(34) Almost forty years later, the people of the states have continued to reject public referenda for vouchers.(35) But various groups continue to lobby for vouchers and some local and state government officials continue to treat them as desirable.

Attitudes toward wealth transfers to religion have not been constant: the case for tax exemption has waxed and waned over time.(36) In 1999, President Clinton extolled the House's passage of the Religious Liberty Protection Act,(37) which would have lifted a significant measure of the financial burden of zoning regulations from religious institutions, while in 1875, President Ulysses S. Grant proposed legislation...