The RFRA is powerful in the same way as a baseball bat: in the hands of a good player, many runs will be scored, but in my hands there would be many strikeouts. Good lawyers (or parties adept at bribery) can twist it well to serve their ends, but ultimately, all it says is that the government must show good reason to burden the faithful and make that burden as light as possible. And it is merely an Act of Congress, which could be reversed by a subsequent Congress without the troublesome hurdles of an Amendment.
You have to convince the state that your religion is legitimate. The common way to do that is to convince the IRS. Which might take some finesse and grift, to acquire enough of a treasure chest to impress them, as groups like Unification and Scientology have done. You have to demonstrate that your services pertain to a faith (dogma grooming?). And then you have to show that your books comport with 501(c). So, no, it is a little more complicated than just your word on it.
What the RFRA does is require that when the federal government has a law that substantially burdens someone’s exercise of religion, the government must show that their law is in furtherance of a compelling government interest, and that the burden is the least restrictive means possible of serving that interest.
So if a given activity is prohibited by federal law, and the activity is secular in nature, then the law can be challenged, but (in general) the government could meet that challenge merely by proving that the law was rationally related to a legitimate government interest.
But if stopping that activity burden’s a person exercise of religion, then the government has to up its game: it now has to defend that law by proving the law is the most narrow way, the least burdensome way, of serving their goal, and they have to prove that their interest is a compelling one.
Well, the comment to which I responded was in essence: “The church is using the property for commercial purposes outside of their charitable status and is subject to taxation; therefore the church is subject to public accommodation laws in this respect.”
The RFRA doesn’t rest on the same standard as federal taxation. It is triggered when any person’s exercise of religion is burdened. Because I haven’t seen anyone address the issue of whether religious exercise would be burdened, I asked ** Chimera** about the affect the RFRA might have.
All I can tell you is that the RFRA has been upheld in several high-profile cases, but so far as I recall none of them specifically invoked the Establishment Clause in challenging it.
You may note, by the way, that I’m noted several times it’s the FEDERAL laws that are subject to the RFRA. The Court did strike down the laws’ original application, which included the states, as beyond Congress’ powers. That is to say, Congress can constrain itself but not the states.
Many states, in response to that decision, passed their own version of the RFRA applicable to their own state laws.
No, my argument amounts to “churches are non-profits by the same standards as every other non-profit”, so singling out one kind of non-profit because it is religious is interfering with the free exercise of religion.
People tend to complain that the first clause of the Second Amendment is ignored, and then turn around and ignore the clause in the First about religion. The separation of church and state is there to protect religion from interference by the state, not merely to keep religion from being established.
Religion has special protection in the Constitution. The government may not single it out and treat it differently. If you don’t want that to be the case, amend the Constitution. And good, or rather bad, luck with that.
The country was founded by uniting 13 sovereign states. The understanding is that a sovereign state has “plenary” – meaning unrestricted, unregulated – legislative reach. This derived from the idea that the monarch has similar power: even when the King must defer to a legislative body, the ancient legal theory is that that King has delegated that power; ultimately, in theory, the King’s authority to legislate in any area is unfettered, and so, too, did the states have this power. Every state was bound by a state constitution, to be sure, but the very existence of that constitution derived from the state’s supreme authority to impose limits on itself.
(NB: the Glorious Revolution of 1688 put a practical end to the notion of a monarch supreme over Parliament.)
When the United States was created, the states agreed to cede areas of their sovereign power to the federal government: declaring war, coining money, regulating interstate commerce, and establishing rules for immigration and naturalization are all examples of areas in which the states may no longer legislate. States retained plenary legislative authority, however, and could continue to legislate in any area, except areas in which they had explicitly handed over their power. The federal government could ONLY legislate in areas in which the constitution granted it power.
In both state and federal lawmaking, however, the gravamina of lawmaking powers rested in the houses of the legislature. Judicial review was contemplated, of course, even before the famous Marbury v Madison, but the theory was that this was simply the courts’ inherent power to resolve conflicts between statutes and the constitution, a document that was to be the supreme law of the land, a designation meaningless if the legislature could nullify it by majority votes.
Alexander Hamilton, in Federalist 78, said: “A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”
Note well that he is not contemplating the judiciary’s power to review the wisdom of a law, but rather it’s conflict, if any, with the express guarantees of the constitution.
Now, how to put that in practice? […220-ish years of judicial history omitted…] and so that’s how we arrive at the present day rules: statutes that impinge upon rights explicitly guaranteed by the constitution receive a sharper level of scrutiny than statutes which are simple exercises of plenary legislative power.
And that’s why the rule for evaluating some laws is different than evaluating most laws.
The Constitution has two phrases in 1A pertaining to religion. The first phrase says there will be no state religion (no analog to the C of E). The second phrase enjoins the Congress from prohibiting free exercise of religion. The only other place that in any way mentions religion is Article VI (there shall be no religious test for office).
Nowhere in there does it say anything about special status, only that, essentially, discrimination is not allowed. And the free exercise clause is not viewed as open-ended: there are, for example, religions that advocate or allow for polygamy, but most or all states prohibit polygamy. If tenets of a religion conflict with strong community standards (e.g., sacrificing live goats in the public square, buggering altar boys or suffering not the unbeliever to live), those practices may not be exempted under the free exercise clause.
The property tax/income tax exceptions are not in the Constitution but are long-standing traditions. They are not necessarily sacrosanct policy and could go away without a lot of fuss, under the right circumstances.
Yes, and then no. I agree they could be rescinded without offending the Constitution, as long as you treated other non-profits similarly. See Walz v. Tax Commission of the City of New York.
But if this were actually done, there would indeed be a fuss. I’m not sure what you picture “the right circumstances” to be, but they’d clearly have to exist in a vastly different political landscape.
A non-profit that does charitable work is very different from a non-profit that uses the money for the convenience and enjoyment of the members.
I have no problem with the church having their food pantry or other outreach programs that assist the poor or disabled considered to be tax free. I too can set up such a program secularly, and enjoy tax free status.
I have a bit of a problem with their basketball court for the exclusive use of their members being tax free. I cannot set up a program that gives me and my friends exclusive access to a tax free basketball court without invoking religion.
Nationally, none. I’ve found a few local candidates that are willing to lend an ear in exchange for my vote, though, who do not utterly dismiss my ideas.
But, it’s an overton window thing. Right now, the very idea of taxing churches is so far beyond the pale, that most people think that it is in the constitution that you are not allowed to tax churches. I have no expectation of moving the window over the idea that claiming a religious belief shouldn’t get you tax free status any time soon, but that that doesn’t mean that I don’t try to give it a good kick in that direction when I can.
If I have to, maybe I can follow in John Oliver’s footsteps of cynically abusing religious exceptions to get around taxes and laws, to demonstrate just how silly it really is that all I have to do is claim to have a religious reason for doing what I want to do, and I get to do it. Most actual religious institutions try not to show off how much they get away with, to prevent people from getting upset with the way that they can abuse their power, but if the point is to just show it off, and brag that pointing to a man in the sky lets me discriminate against protected classes while enjoying being subsidized by taxpayers as I enjoy a tax free status, things may change, eventually.
You seem to be inexperienced with the extent churches help the community. Our church supports the local food bank, the local homeless shelter, a crisis pregnancy center, a crisis center for domestic violence, a children’s services organization, other, smaller churches, a ministry that helps women in need, a college campus ministry, a woman helping fight a diphtheria outbreak in a refugee camp in Bangladesh, missionaries all over the world, and the denomination that has a disaster relief program, sending help like the Red Cross but without advertising it, among others. The local denomination association has a clothes closet and a food pantry for the poor to use when in need. Few of these financially benefit members of our church.
What benefits have I received from the same church? Friendship, prayer, fellowship, and good teaching in the Word.
That is a very odd conclusion. It would be like saying “So, you believe that water is wet?”
The tax money that comes out of my pocket for property taxes, sales taxes, income taxes, and other taxes does not belong to me after I have signed the check to the govt. I get a bit of a say in the use of it when I vote, but that doesn’t mean that it belongs to me. Do you believe otherwise?
And I assume that by saying that the govt and public give you nothing, that you don’t drive on public roads, don’t use any public utilities, don’t eat any food from public stores or restaurants? You don’t benefit from having a publicly educated population, you don’t benefit from local police and fire protection services?
Even if you are never leave or use anything off your patch of privately owned land, it is still the govt that enforces your right to property ownership, preventing me from just coming and taking it.
What many people do not understand is that to a Christian who reads Scripture, the two are inseparable. The church is there to build up and equip the saints for good works, and one cannot be a Christian without being compelled by Scripture and the Holy Spirit to do good works.
