Similarly, though, this ought to get rid of 501(c)(3) designation for churches. I read the IRS regs (well, the first page, anyway) for religion-as-nonprofit a couple of days ago for this thread, and they said that not only did a church automatically receive tax-exempt status, they technically didn’t even need to apply for it: merely by being a church, it was theirs. This is not how it works for other organizations that want tax-exempt status.
Change that one thing–religion–and the government treats them differently. A group identical to a church, except for the lack of religion, is treated differently by the government. Isn’t that discrimination based on religion?
I haven’t read the rules recently, but taken at face value the easiest way to remedy that would be to require the application. I’m totally in favor of eliminating the non-profit tax structure though. I think an argument can be made that favoring minority owned and women owned businesses in vendor selection has similar issues.
But the fact is that religion is called out as an area in the text of the Constitution that is afforded different status. That sort of discrimination based on religion is based on the fact that the Constitution itself makes such distinctions.
But that leads to forming first two groups religious, non religious. And then within religious forming sub-groups of denomination. Then arguing that it is only illegal to discriminate based on membership in the subgroups (denominations) but perfectly fine to discriminate between religious and non-religious. Why is that the proper scheme rather than one grand division along the lines of {Catholic, Muslim, Presbyterian,…, non-religious} with no discrimination allowed at all.
[quote]
And then within religious forming sub-groups of denomination. Then arguing that it is only illegal to discriminate based on membership in the subgroups (denominations) but perfectly fine to discriminate between religious and non-religious.[/qupte]
Yes.
Because the Constitution sets out religion as a category in its text, and forbids the government from prohibiting the free exercise of religion. It does not forbid the prohibition of free exercise of “non-religious” actions.
A significant move by the state has raised doubts about the viability of the ongoing case as the folks over at Scotusblog have reported.
The new governor of Missouri has mandated a policy change which would “allow the state’s Department of Natural Resources to give grants to religious groups to fund not only recycled playground surfaces but also school field trips to state parks and programs to promote recycling and erosion control.”
This raises the question if the entire Trinity case is now moot. Trinity’s application was denied, no question about that. But now it appears that under this new policy a renewed application might be granted.
SCOTUS has asked both parties to the case to provide briefs one how this new policy may affect the ongoing case.
IMHO this raises a sort of mootness question that was raised in Roe v Wade. By the time Roe’s case reached the Supreme Court her pregnancy would be over, thus potentially making a court challenge to a policy barring abortion be something not subject to effective review. The court decided that since the issue was capable of being repeated and court review would otherwise be frustrated that the court would go ahead and rule on the matter.
In the Trinity case if the court dismisses the matter as moot then the entire circumstances could be repeated under a new gubernatorial administration which chooses to hold to a different policy. Better to hear the case as planned later this week and come to a decision. After all a potential favorable future application does not outweigh the harm which has already occurred due to the past definitive denial of their application.
I was thinking the issue might end up becoming moot due to Missouri amending its constitution. Personally, I didn’t think it was a very good law.
But I’m not happy with a governor decided to just work around the law. Bad laws should be repealed not ignored. Government officials should not get into the habit of ignoring laws they don’t agree with.
The state house conversation may have gone something like this:
Prosecutorial discr… <mumble, mumble,> make case go away, <unintelligible muttertings> Ah. hell. Just stop defending it.
I think this policy probably flies directly in the face of that provision of the state constitution. And for that reason the SCOTUS should not dismiss the matter as moot as a new governor could decide to defend this position.
I suspect this approach is an easier path for the new Governor to get that part of the state constitutional ruled unenforceable as opposed to the effort to defend it and try to repeal it with a new amendment. Other governors took similar paths by refusing to defend anti-SSM amendments to their state constitutions.
In the case of Roe v. Wade, the situation not only could happen again, but was bound to happen again.
In the current situation, the possibility that it MIGHT happen again (new governor changes his mind, for example) isn’t enough to warrant ignoring the fact that there now exists no case or controversy.
BUT, it may not be that the case has been mooted by the action of the Governor. After all, as pointed out, the Governor’s action may be violative of the Missouri Constitution. In that case, there is still a case here, since the church cannot just re-apply and receive the benefit.
While it wasn’t going to happen in this case I am bummed if there is no longer standing and movement isn’t made to a solution. I think most sides would be happy if the government had a standard to anonymize this type of financial award that would legitimately mask the beliefs of the beneficiary from the government.
Unfortunately I don’t think that either “wing” of the current political climate would support this model, due to the desire to penalize the other side I think it would be the end result which would best fit the interests of non-establishment.
Unfortunately it seems that Missouri, and the rest of America are not trending towards true religious freedom at this point in time.
Voluntary cessation does not inherently make the case moot.
Even though a polluter had closed a factory and ceased pollution a case could still proceed against them since they could resume the offending behavior absent an injunction from the court. See Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.
Once again, inapposite. In this case the state has changed its rules, so the state cannot just arbitrarily engage in the potentially unconstitutional behavior (unlike the case you are citing).
In looking at Norman et al v Cook County Officers Electoral Board, the mootness doctrine is discussed and the review standard met even though it’s not literally “bound” to happen again:
This declaration, which does not garner further comment, seems to say that that it’s enough for the reviewing court to have “every reason to expect.”
It’s not clear to me what factual findings need to support the “every reason to expect,” determination.
I would assert that “every reason to expect” is fundamentally identical to “bound to happen”. Of course, some Supreme Court justices might disagree with me.
You are focused on the word “prohibiting” but I would focus on the word “free.”
If I have to choose between Methodism and Methodism without X State benefit, is my choice really free? There are degrees of prohibition and you agree that an outright prohibition or punitive monetary penalties that are effective prohibitions would be unconstitutional. What about moderate monetary penalties, or mild ones? Those don’t prohibit the exercise of religion, but they prohibit the “free” exercise of religion because now I must make a choice: get State benefit X or worship how I choose.
Government has made my choice not a “free” one; there is now a coercive element.
It’s not so much that I can’t have a church without a playground; its that I am being forced to decide between being a church and having a playground.
As far as bicycle repair shops or ice cream stands, my view is the same. If an organization wants to run either of those, it should be granted or denied without consideration of whether the organization’s underlying purpose is religious or not.
What if the organization wants to build a building for its avowedly religious school, and the state offers construction subsidies to secular schools but not parochial ones?
A rule change does not bind the state; it can amend its rules again whenever it wants to. In any event, the new rule will not be promulgated for a while and will be subject to a notice and comment period, so the case certainly isn’t moot yet.
Justice Ultravires rules the particular law to be unconstitutional.
The Supreme Court by way of its “no direct use” test would likely uphold such a law because the Court prohibits subsidies for a building which will be directly used for religious purposes.
As others have said it is an empty formality. If a religious group wants to build both: 1) a Christian school, and 2) a gymnasium on its campus under the Supreme Court’s jurisprudence it would be unconstitutional to give a $200k subsidy if it was divided $100k to school and $100k to gym, but perfectly fine if it was $200k to the gym.
My test would be simple: remove religion from the equation. Would the benefit still be the same? Would the harm still be as burdensome? Then constitutional. If benefits or burdens of the law or program are increased or decreased solely because of the religious nature of the entity, then unconstitutional.
Both sides submitted their briefs and both argued that the case should go ahead essentially on the same grounds. Both noted that a future administration could change policy and both noted that mooting this case would leave the same language in play in the state constitution inviting a future case to challenge essentially the same point.
Oral arguments are set for tomorrow. It is possible that SCOTUS could take some action that would short circuit the case and thus the oral arguments. But I wouldn’t bet on it.
Again, props to the folks at SCOTUSblog who keep on top of this stuff.
You can’t make your case using only half the equation-What about whether there are any benefits to the church? On another topic-Planned Parenthood-it is argued that even if government funds are not being used directly for birth control, it supposedly frees up money from the general fund to transfer for the use of birth control. Likewise, if the grant is used for this church project, it frees up church funds, that would otherwise be used for this non-secular purpose, to be used for a secular purpose instead.