Constitutional Law

Respecting An Establishment Of Religion

Forcing free and independent individuals to pay for religious displays violates the First Amendment.

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This week, the United States Supreme Court will take oral argument on a case that will determine whether a county taxing its citizenry in order to maintain a Christian war memorial violates the Establishment Clause. Given that doctrine already heavily favors religion at the great expense of free conscience and the Roberts Court’s clear preference for Christianity over other religions, I expect the Court to overturn the Fourth Circuit ruling and uphold the subsidy.

What makes this likely outcome troublesome is that any plain language interpretation of the works of James Madison and Thomas Jefferson (the most influential Founders in forming original anti-establishment liberty) demonstrates that religious freedom was established primarily to prevent civil mechanisms from subsidizing religion. Here is what I have said previously regarding original anti-establishment liberty:

An account of Madison’s views on anti-establishment liberty can be found in his work Memorial And Remonstrance Against Religious Assessments, made in response to a proposed religious assessment bill in his state of Virginia. The assessment bill Madison was opposing in Memorial would have permitted tax assessments for churches, but granted citizens the complete autonomy to select which church could receive the funds. Moreover, exceptions for Quakers and Mennonites, which did not utilize clergy, were granted in the bill along with all undesignated funds directed to the public general fund to develop “seminaries of learning” that were not required to be religious. However, despite the assessment bill being nonpreferential to any religion or even to religion itself, and despite that it gave individual citizens complete autonomy to direct the funds, Madison opposed and ultimately defeated it on free conscience grounds.

According to Madison, using civil support mechanisms to support religion always violated the free conscience of citizens, even if no taxpayer objected. To allow civil support was for Madison a contradiction to religion itself “for every page of it disavows a dependence on the powers of this world.” Civil support for religion also presented “a contradiction in terms” to Madison because it weakened “those who profess this Religion a pious confidence in its innate excellence and the patronage of its Author.”  In other words, Madison felt religion stood in no need of civil assistance, and to provide aid, even neutrally applied as it was in the assessment bill he was opposing (and how funding is justified today), ultimately undermines religion’s authority.

When one applies this original standard to the facts in the respondent brief, the anti-establishment violation becomes clear. According the brief, the county where the Christian memorial resides has to date invested “nearly a quarter-million dollars” to maintain a display that is once again in a state of disrepair. To put it another way, the county has extracted hundreds of thousands of dollars in taxes, mostly within the last few decades, in order to subsidize a large and expensive religious display. New revenue will also be extracted from the citizenry in the future as the display at issue is so large it will continue to require significant upkeep.

If the cost of maintaining this religious display was instead absorbed by private, willing payers, the constitutional analysis would change significantly. Because, again, original protection was designed to grant to the individual the sole discretionary power to service (i.e., honor) religion. Moreover, I agree with the arguments put forth in amicus by organizations such as Citizens United that “there is nothing in the Establishment Clause that prohibits displays of religious symbols” specifically. The point of disagreement that I have is the relevance that in this particular case, the government is extracting tax dollars from its citizenry in order to maintain the religious display.

Given the Court’s recent First Amendment jurisprudence, the question must also be asked: Why is extracting money from free and independent individuals to subsidize the political speech of public sector unions a violation of the First Amendment (I agree with the Court that it is), but extracting money to subsidize expensive religious displays is not? Because I have yet to hear an adequate explanation for why constitutional guarantees against compelling “a man to furnish contributions of money for the propagation of opinions” should apply to public sector union speech, but not religious speech.

To some, however, the thought of constitutional guarantees against coercion being applied evenly to religion represents a desire by some to purge of religion from the public square. Rational people should be able to acknowledge that protection against being taxed in order to maintain once private (and now expensive) religious displays costing hundreds of thousands of dollars is not the same as abolishing religion from the public square. But as the Court has already demonstrated this year, when it comes to religion, equitable application of constitutional principles is not something one can expect.

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Tyler Broker is the Free Expression and Privacy Fellow at the University of Arizona James E. Rogers College of Law. His work has been published in the Gonzaga Law Review and the Albany Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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