Some churches and other religious institutions do choose to organize a separate 501(c)(3) for some of their charitable outreach. And they are eligible for all sorts of government grants so long as a few criteria are met:
[ol][li]separation in time and/or place of religious activities and government grant supported activities[/li][li]no religious participation required of member of public to access government supported activities[/li][li]open to all - cannot limit beneficiaries to members of religious organization[/li][/ol]
So a food pantry, women’s crisis center, homeless shelter, or other community outreach a religious organization might wish to engage in might be eligible for government grants on the same basis as non-religious organizations.
A church using grant money to run an anger management program can use the same building at the same time as is used for a bible study group, but different rooms or some other means of physical separation may be required. A mosque offering and English as a Second Language program might qualify for government grants but they could not limit participants to only members of that mosque or more generally to only Muslims. A fundamentalist Baptist church may qualify for grant money to run a jobs retraining program but they cannot condition access to the program on participation in a religious worship service.
However religious institutions are not obligated to wall off such government funded programs to a separate 501(c)(3). Doing so might be easier, particularly for larger programs where grant monies may support the salary of a member of staff, but it is not a requirement.
I don’t think the problem would be solved. The Missouri constitution applies to money given to churches, but also in aid of “sect[s], or denomination[s] of religion” as well as any school “controlled by any religious creed, church or sectarian denomination.”
So, at some point, the Missouri officials must come along as say: you specific non-profit entity (for example a preschool) are “controlled” by a “religious creed” and you specific non-profit entity indirectly aid a denomination.
When the University of Notre Dame applied for 501(c)(3) status, I don’t know whether it checked the box for “religious” or “educational” (or both). But I do know that Missouri (if they were in Missouri) wouldn’t give them rubber for their playground because of their religious affiliation. So this problem doesn’t get solved. They can’t just spin-off the preschool as a subsidiary.
Relatedly, thanks for the list of benefits. I’m not sure i think that benefits provided to individual ministers (e.g., the confessional privilege) should be counted as benefits for an organization identifying itself as a church. But fair enough on the others.
I’m not saying the government action would have to ban religion entirely. The government action would merely have to limit the religious activity to the point where it restricted the free exercise of the religion in order to be unconstitutional. Your examples of a punitive tax on religious organizations or a ban on places of worship would qualify for that.
But are you prepared to argue that religious organizations must receive public money in order to freely exercise their faith? If so, offer the evidence to support this claim. If not, then you’re conceding a lack of public funds does not restrict the free exercise of religion. And that concession ends the debate over the free exercise clause.
As for the equal protection clause, I’ll concede there is a remote possibility there. The reality is the government doesn’t give money to everyone who asks, so giving money to some people and not others isn’t a clear violation of the equal protection clause. But I’ll admit I don’t know enough about the legal standards on where the lines between constitutional and unconstitutional is drawn on the unequal distribution of public funds to offer an opinion on that issue. My gut feeling is that this case won’t fall on the unconstitutional side but I could be wrong.
Do you agree, as a matter of free exercise, with the following statement: A state cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Nonbelievers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.
Or do you view that as a matter of equal protection (if anything at all), because being denied the benefits of public welfare legislation is unlikely to prevent an individual from actually exercising their religion?
If the government gives money to fisherman to help them catch fish they are not also required to give money to deer hunters to help them catch deer.
However, they ARE required to give the money to any fisherman regardless if that fisherman is Jewish, christian, atheist or whatever. It would seem Missouri would say they cannot give money to the Church of Fisherman for fish catching purposes because it is a church.
[QUOTE=Little Nemo]
But are you prepared to argue that religious organizations must receive public money in order to freely exercise their faith? If so, offer the evidence to support this claim. If not, then you’re conceding a lack of public funds does not restrict the free exercise of religion. And that concession ends the debate over the free exercise clause.
[/quote]
My argument, again, is that I am not sure.
Let me suppose for a moment that I’m allowed to define “free exercise” for myself. This is how I would reason: it is not free exercise if the government says “you may practice your religion, and this is the price you must pay if you do.” I would conclude that “free exercise” means that the government cannot place a person or an organization in the position of having to choose between their religion on the one hand and better treatment by the state on the other. So if I’m permitted to define “free exercise” for myself, then I think that denying religious organizations access to a public program for which they are otherwise qualified violates the Free Exercise Clause: in denying access the state is imposing a cost on the organization simply because the organization is religious.
Obviously I do not get to define “free exercise” for myself, and I’m not sure to what extent the courts have agreed with the interpretation I would offer. But the fact that the Supreme Court is hearing the case at all suggests to me that there is at least an arguable claim that Missouri’s denying the church access to the public purse is indeed in violation of either the Free Exercise Clause, the Equal Protection Clause, or both.
In a point of pure legalistic pedantry, I will point out that no case involving the actions of a state government involves the First Amendment to the Constitution of the United States of America. The First Amendment applies solely to the actions of the federal government. The principles of First Amendment jurisprudence apply to state action, but only because the term “liberty” in the Fourteenth Amendment’s due process clause has been determined to include the almost all the basic rights guaranteed to individuals vis a vis the federal government in the first eight amendments.
So this MUST be a 14th Amendment case, even if we ignore the substantive issue of the fact that the case was argued on the basis of both the due process AND the equal protection clauses.
I honestly do not see how it is a 1st amendment issue at all (I know they argued it).
I do not see how a playground in any way bears on the free exercise of religion and how denying money for it is the state “prohibiting” their free exercise of religion. If it did then anything goes. They could have a bicycle repair shop or ice cream stand or car wash or whatever and claim these things are part of the religion as long as it is on church grounds. If the state denies them a permit or benefit related to that activity it is a prohibition on free exercise of religion (by their thinking). That seems ridiculous.
I think a good way to think about this is the recent 7th circuit case that ruled sexual orientation was covered under discrimination based on sex. Their analysis was that if one thing that was changed (the gender of the person in question) would change the outcome, then it was discrimination based on sex.
In this case, if one thing is changed, the organization applying for the playground program, then their application would have been granted. Based on that rationale, it is entirely the fact that the organization is religious that lead to their denial. The free exercise and establishment clauses taken together should mean that the government is neutral on religion. Denying the playground because the organization is religious even when the playground has a secular purpose is not neutral to religion.
I do not see how being neutral (or not) to religion encompasses playgrounds as the playground has absolutely zero to do with their religion. It cannot be said their practicing religion is impacted by their playground one way or another.
As a matter of first principles, I think I understand what you’re saying. Discrimination against people (or organizations) on the basis of their religion sounds like an equal protection issue. And we can coherently define “free exercise” as involving actual restrictions on exercise. (Which would make even more sense in the pre-Smith world of religious exemptions).
Which is sort of the question I asked Little Nemo earlier: Do you agree, as a matter of free exercise, with the following statement: A state cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Nonbelievers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.
I think that free exercise is understood more broadly to encompass religious discrimination. I think that’s likely because there was no 14th Amendment at the founding and religious discrimination was an active concern.
Uh, I think too many people are focusing on whether this is “First Amendment” or “Fourteenth Amendment”. Ignoring for a moment the pedantry of my response above, it probably is an example of distinction without difference.
Let’s assume we approach this as an “equal protection” case. For equal protection analysis to proceed, we have to identify that there is some protected class which is being impacted, forcing us into a stricter look at what the state is doing. Guess what that protected class will be?
If we approach it as a due process case, again, we have to identify a “fundamental right” that is being impacted before a stricter look is required. Guess what that fundamental right will be?
Either way, we’re involved in discussing the jurisprudence of religious liberty. Which will require that the basics of “First Amendment” analysis get applied.
The Court itself often gets quite confused at times over trying to separate the various concepts involved. I thought the 8th Circuit did an admirable job of trying to keep things neat and tidy in their opinion. Even so, you will notice that the whole thing quickly devolved into a single analysis, citing Luetkemeyer and Locke.
I will distinguish though that I do not include the institution itself in that analysis. Akin to me not agreeing with Citizens United that corporations are effectively people because they are comprised of people.
There is a very big difference between this and Citizens United.
There is a right to free speech, and you do not invalidate your rights by exercising another.
There is no right to government provided shredded tires, and thus it is very different.
But this position seems to be anathema on the “progressive” side that I typically identify with.
The ACLU wouldn’t exist without the concepts behind the Citizens United decision, but no church will stop to exist because they are refused government cheese^H^H^H^H^Hshreadded tires.
I don’t really know that Locke applies here. It seems to be distinct. In Locke, the student was denied his scholarship because he was specifically studying to be a minister. So, that money was specifically going to further a religious interest. In this, though, the playground resurfacing money isn’t promoting any specific religion or furthering a religious interest. It’s the definition of a secular purpose.
What if the one thing that is changed is an organization’s nonprofit status? Isn’t a grant specifically earmarked for nonprofits discriminatory against for-profit organizations?
But profit is not an activity mentioned in the Constitution, and religion is. IN other words, it may be that the state can discriminate between non-profits and for-profits in this way, but not between religious non-profits and secular non-profits.