Religious Institutions Should be Treated Like Their Secular Counterparts

A good deal of Supreme Court cases about the Free Exercise and the Establishment clauses of the First Amendment have been about religious institutions. These cases have all dealt with ways in which the religious intuitions should be treated differently or similarly to their secular counterparts, but there has yet to be a real consensus on what that difference/similarity should be. I believe, and this essay will show, that the only difference between the treatments of religious institutions compared to their secular counterparts should be things inherent in the fact that they are religious. That is, if it can be found that a difference of policy is necessary for religious institutions, this should be able to be shown purely from the fact that those institutions are religious. Barring this, religious institutions should be treated precisely like their secular counterparts.

Before I delve into specific ways that these institutions are treated differently, I will examine some general argument for why they should/should not be treated so. First, I think it is clear that the Free Exercise and the Establishment clauses show that, respectively, the government should neither inhibit nor promote particular religious institutions. Some would argue that this is still maintained as long as all religious institutions are treated similarly; as long as both Catholic and Buddhist monasteries are given the same tax exemption, for example, then the First Amendment is maintained. However, I think this way of reading it is both dangerous and inaccurate. What is missed is that both clauses are in effect for both specific religions and broad groupings of religions. For instance, in the same way that the government is not allowed to promote the Catholic Church, it is also prevented from promoting Christianity in general. The reasoning behind this example seems clear enough: it would be unfair to those that do not belong to a Christian church. It seems clear, as well, that the government would also be wrong in promoting only those institutions that are within the Abrahamic grouping, since this would be unfair to those that are not part of an Abrahamic religion. And it would seem just as wrong, then, for the government to promote all religions in general, since it would be unfair to those that are not part of a religion. Therefore, the First Amendment is not maintained simply by treating all religions the same; it is only maintained when religious institutions are treated like their secular counterparts, since this is the only time when both religious and non-religious people are treated equally and fairly.

Another argument that could be posed is that, because these institutions are religious, they are serving a large in good in promoting morals, or family values, or some other community service. But this is to miss the point, really; it might very well be the case that an institution promotes morals or does some community service, but if so, then the institution will be treated differently because of these things, not because it is religious. Other institutions would be just as able to have access to this special treatment as well; any institution, religious or non-religious, that are able to show that they are promoting morals or doing some service to the community would be treated in this way. If these things that the religious institutions do are really the reason why they should be treated in a special way, it seems obvious that any other institution that does the same thing should be treated in the same way. In other words, this argument does nothing except reinforce my point that religious and non-religious institutions should be treated exactly the same by the government.

If a religious institution were to be treated differently from other institutions, it would be in one of the following ways: a prohibition, a requirement, an exemption, or a privilege. Each of these ways are explained further in their own section, and I will show why none of them should be attached to a religious institution if not also attached to similar non-religious institutions. I will also examine some key case(s) in each area to show how the Supreme Court currently treats these types of exceptions from the rule.

A prohibition is “a law, order, or decree that forbids something” [1]. What I will be examining is times and ways in which religious institutions have been prohibited from doing something that other, similar institutions have been able to do. The most recent example of this is the 1992 case of the Church of Lukumi Babalu Aye v. Hialeah. In this case, a law had been enacted by the city of Hialeah that prohibited animal sacrifice. According to the opinion given by Justice Kennedy, “ordinance 87-52 defined “sacrifice” as “to unnecessarily kill, torment, torture, or mutilate an animal in a public or private ritual or ceremony not for the primary purpose of food consumption.”” What the law did, then, was to create a situation in which a secular institution, a slaughterhouse, was able to kill animals, but a religious institution, the Church of Lukumi Babalu, was not. The Supreme Court found that the law was specifically created to stifle the Santeria religion (which the Church of Lukumi Babalu practiced), and that the law only advanced the government interests when the killing of the animal was motivated by religious beliefs. For these reasons, the Supreme Court found the law to be unconstitutional.

This shows a few things. First, it shows that, at this time, the Court has different rules for dealing with laws that are specifically created to stifle a religion, and those that only incidentally do so. That is, it has different rules for laws that are created to prohibit a religious institution from doing something that secular institutions are able to do. According to a Freedom Forum discussion on the case [2], “a law that is designed to restrict religious practices will be upheld only if it is justified by a compelling interest and is narrowly tailored to advance that interest. A law that is neutral towards religion and of general applicability, however, need not be justified by a compelling governmental interest, even if the law incidentally burdens a particular religious practice.” What this seems to say is that laws that prevent religious institutions from doing things that secular institutions do must have a “compelling interest” behind them, while those that treat them equally need no such interests. Second, it shows that even if there is a “compelling interest”, the religious institution should be restricted as little as possible while still satisfying that interest. That is, the law must be narrowly tailored so that only those specific actions and situations in which the compelling interests are violated should be prohibited, and nothing more. This seems unfair, however; why should it only be religious institutions that are afforded this protection? I will examine this question in the privilege section, so I will close this section by concluding that the Court has found it unconstitutional to create laws specifically designed to prohibit a religious institution from doing something secular institutions are able to do without very good reason. It is unconstitutional, in these cases, to treat religious institutions different from their secular counterparts.

A requirement is, basically, something that is required. In this case, what I am referring to is something that a religious institution is required to do that similar, secular institutions are not. The most common form of this is a requirement that a church prove that it is, in fact, religious. This proof is generally a requirement for some exemption or privilege. One such case is discussed in Cantwell v. Connecticut. In this case, a Connecticut statute was in place that required certification by the state for any person/group that wanted to solicit money from others in their county. This certificate would be given if the group was shown to be religious, charity, or philanthropic. As such, if a group were not charitable or philanthropic, it would be required of them to prove that they are religious. Such a religious test, the Court found, is unconstitutional. Essentially what the Court is saying, then, is that such a requirement is unfair and unconstitutional.

Really, this particular way of treating religious and non-religious groups differently has not been a very prevalent one. As stated above, it is generally used as part of either a privilege or an exemption. Perhaps this is because it is so painfully obvious that a special requirement for a religious institution would be unconstitutional. If a law were to be made requiring, say, a religious tax of all religious institutions, it would be struck down quickly by the Supreme Court. Similarly, if a statute required all churches to provide 60 hours of community service per year, it would be struck down. Note, though, that if this requirement was just requisite in order to be consider philanthropic (and therefore gaining any privileges associated with being so), it would be upheld. Again, then, it seems to be the case that religious institutions should be treated no differently than their secular counterparts.

An exemption can be defined as “immunity from an obligation or duty” [3]. That is, a religious institution is granted an exemption when it is not required to do something that secular institutions are required to do. One of the most famous forms of this has been the tax exemption that churches are able to get. According to Justice Burger, writing for the Court in Walz v. Tax Commission of City of New York, all 50 states, as well as the federal government, have this exemption. His arguments for why this should be so, however, are unconvincing. Essentially, he states that the government and the church should interact as little as possible, and that as far as taxes are concerned, exempting a church from paying taxes is less interaction than making it pay them. As stated above, however, I feel this is quite unconvincing. First, he fails to show how government interaction with a church could qualify as inhibiting it in any way. Second, he fails to see the major problem that was expressed in the “requirement” section of this essay: that any such exemption brings with it a requirement that the institution prove that it is religious, and therefore a situation in which the government is in a position to approve or disapprove of certain religions. This is quite dangerous for those churches that are not part of the mainstream. As Justice Douglas writes in his dissent to Burger, “one of the best ways to 'establish' one or more religions is to subsidize them, which a tax exemption does.”

It is quite clear that a tax on preaching would be unconstitutional, as this would specifically target and inhibit religion. However, it is not clear that a tax on the preacher’s income would be such an inhibition. Across the board on these issues it has been clear that if a statute, or in this case a tax, is broad and applies to all people, it is not unconstitutional if applied to a religious institution. And yet Burger treats it as if it is very much unconstitutional, without giving any solid reasons for treating it as such.

It could very well be the case that churches should be able to have this tax exemption that they have enjoyed for so long. A similar exemption is available for libraries, hospitals, charitable organizations, etc. As Justice Douglas points out, though, this exemption should not be given because of its status as a church, but rather as a non-profit, charitable institution. Some churches now given the exemption would not qualify for the other exemption; not all churches are really charitable institutions. But why should non-believers support churches that are doing nothing for the community they are living in? Supporting those institutions, including churches, that support the community seems quite fair, but other institutions seem, basically, to be undeserving of this support.

This example, I think, shows the direction of change that I think needs to be made in the government’s relationship to religious institutions. Essentially, I think that the government should not be concerned with the fact that an institution is religious or not, but rather to its other aspects. If it is philanthropic, treat it like any other philanthropic institution. If it is scholarly, treat it like any other scholarly institution. The fact that the institution also performs religious rituals and hosts sermons should be completely irrelevant, and therefore not taken into account when the government is deciding on policies regarding that institution.

The Supreme Court has not required states to create exemptions for churches in their laws, but neither has it made unconstitutional exemptions they choose to create. In Oregon v. Smith, Oregon had a law that prohibited the ingestion of peyote. Many states had this law, and of these most had an exemption for religious institutions. Oregon, however did not, but neither Oregon nor the other states’ policies regarding this were deemed unconstitutional. Thus, it would seem that the Supreme Court has allowed states to exempt or not exempt religious institutions as they please, with no interference needed. This policy, I think, should be changed as well. If, indeed, I have shown that to exempt a religious institution purely because it is religious, and not for some other property of the institution, is to be held as unconstitutional, then all religion-based exemptions by the states for religious institutions must also be held unconstitutional. In this issue, as with the others, it is clear that religious institutions should be treated no differently than their secular counterparts.

The last issue is that of privileges. These are things that a religious institution is allowed to do that other institutions are not. One example of this is the Oregon v. Smith case. In exempting the church from a prohibition, in effect the church would be given a privilege. In the Cantwell v. Connecticut case, what is being dealt with is a privilege as well. This case is the more clear of the two, and so I shall examine it more closely.

In this case, a group is able to solicit for funds only if it is charitable, philanthropic, or religious. In other words, charitable, philanthropic, or religious groups are given the privilege of being able to solicit funds; any other group would be fined for doing so. The purpose of this law was so that unscrupulous people could not pretend to be working for an agency that they were not; the law was to protect citizens from being duped into contributing to a group that wasn’t really as charitable as they pretended to be.

But, really, how could religion be part of this law? With charities, the government could confirm that the group really did give money to animal shelters (for example), and would therefore qualify as a genuine charity. But what is a “genuine” religion? Is it only genuine if it has 500 members? Is it only genuine if it has a “supreme being” that is worshipped (which would bar Buddhism)? It seems obvious that the government would end up having to define religion, and therefore exclude some groups that would think of themselves as religious.

But a deeper question here is why religious groups should be able to do this at all. If anti-abortion groups, for example, are not able to solicit funds for their group, why should religious groups? Both are fundamentally organized to express viewpoints and beliefs. Even a group like DARE, or MADD, or any other group that tries to provide information and resources so stop drug abuse, drunk driving, etc. would not be allowed to solicit under that statute. Why, then, should religious institutions? It seems clear enough that in many ways these institutions are similar enough that if one is granted this privilege, all of them should. If a religion is truly philanthropic, then it would get the privilege by virtue of that; if it were truly charitable, again, it would receive the privilege. If it is being given the privilege by virtue of the fact that it is promoting morals within the community, then that should be the property that gives the privilege, not the religious property. Any other institution that contributes to the morality of the community would then also get the privilege. The religious aspect of an institution should, as stated already, be completely irrelevant. As with the other three issues presented, a religious institution should be treated precisely like other, secular institutions.

In the beginning of my essay, I stated that the only difference between religious institutions and secular institutions should be those that are derived by the fact that they are religious. What I mean by that is that it is clear that, when hiring a priest, discrimination by religion is perfectly valid. That feature of the applicant really is a requirement for being a priest. Other, secular, institutions would not be able to discriminate because of an applicant’s religion. This type of difference, the type that is derived because of the fact that an institution is religious, should be the only kind tolerated.

The conclusion, then, is rather obvious. Religious institutions should not be specially prohibited, required, exempted, or privileged compared to their secular counterparts. Except in rare cases where religion really does play a role, the religious nature of an institution should play no role in determining policies regarding that institution. This is precisely what is meant by the Establishment and Free Exercise Clauses of the First Amendment, and this should be the policy adopted by the U.S. Government and especially the Supreme Court.

[1] American Heritage Dictionary of the English Language, Fourth Edition. Houghton Mifflin Company.

[2] “Church of Lakumi Babalu v. Hialeah”, http://www.freedomforum.org/fac/92-93/hialea93.htm. Accessed November 23, 2001.