Walz v. Tax Commission of the City of New York/Concurrence Brennan

by William J. Brennan, Jr.

Mr. Justice BRENNAN, concurring.

I concur for reasons expressed in my opinion in School District of Abington Township, Pa. v. Schempp, 374 U.S. 203, 230, 83 S.Ct. 1560, 1575, 10 L.Ed.2d 844 (1963). I adhere to the view there stated that to give concrete meaning to the Establishment Clause,

'the line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers. It is a line which the Court has consistently sought to mark in its decisions expounding the religious guarantees of the First Amendment. What the Framers meant to foreclose, and what our decisions under the Establishment Clause have forbidden, are those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice. When the secular and religious institutions become involved in such a manner, there inhere in the relationship precisely those dangers-as much to church as to state-which the Framers feared would subvert religious liberty and the strength of a system of secular government. On the other hand, there may be myriad forms of involvements of government with religion which do not import such dangers and therefore should not, in my judgment, be deemed to violate the Establishment Clause.' Id., at 294-295, 83 S.Ct., at 1609-1610.

Thus, in my view, the history, purpose, and operation of real property tax exemptions for religious organizations must be examined to determine whether the Establishment Clause is breached by such exemptions. See id., at 293, 83 S.Ct., at 1609.

* The existence from the beginning of the Nation's life of a practice, such as tax exemptions for religious organizations, is not conclusive of its constitutionality. But such practice is a fact of considerable import in the interpretation of abstract constitutional language. On its face, the Establishment Clause is reasonably susceptible of different interpretations regarding the exemptions. This Court's interpretation of the clause, accordingly, is appropriately influenced by the reading it has received in the practices of the Nation. As Mr. Justice Holmes observed in an analogous context, in resolving such questions of interpretation 'a page of history is worth a volume of logic.' New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921). The more longstanding and widely accepted a practice, the greater its impact upon constitutional interpretation. History is particularly compelling in the present case because of the undeviating acceptance given religious tax exemptions from our earliest days as a Nation. Rarely if ever has this Court considered the constitutionality of a practice for which the historical support is so overwhelming.

The Establishment Clause, along with the other provisions of the Bill of Rights, was ratified by the States in 1791. Religious tax exemptions were not an issue in the petitions calling for the Bill of Rights, in the pertinent congressional debates, or in the debates preceding ratification by the States. ^[1] The absence of concern about the exemptions could not have resulted from failure to foresee the possibility of their existence, for they were widespread during colonial days. ^[2] Rather, it seems clear that the exemptions were not among the evils that the Framers and Ratifiers of the Establishment Clause sought to avoid. Significantly, within a decade after ratification, at least four States passed statutes exempting the property of religious organizations from taxation. ^[3]

Although the First Amendment may not have applied to the States during this period, practice in Virginia at the time is nonetheless instructive. The Commonwealth's efforts to separate church and state provided the direct antecedents of the First Amendment, see McGowan v. Maryland, 366 U.S. 420, 437-440, 81 S.Ct. 1101, 1111-1113, 6 L.Ed.2d 393 (1961); School District of Abington Township, Pa. v. Schempp, supra, 374 U.S. at 233-234, 83 S.Ct., at 1577-1578 (Brennan, J., concurring); Everson v. Board of Education, 330 U.S. 1, 33-38, 67 S.Ct. 504, 520-522, 91 L.Ed. 711 (1947) (Rutledge, J., dissenting), and Virginia remained unusually sensitive to the proper relation between church and state during the years immediately following ratification of the Establishment Clause. Virginia's protracted movement to disestablish the Episcopal Church culminated in the passage on January 24, 1799, of 'An ACT to repeal certain acts, and to declare the construction of the (Virginia) bill of rights and constitution, concerning religion.' The 1799 Act stated that the Virginia Bill of Rights had 'excepted from the powers given to the (civil) government, the power of reviving any species of ecclesiastical or church government * * * by referring the subject of religion to conscience' and that the repealed measures had 'bestowed property upon (the Anglican) church,' had 'asserted a legislative right to establish any religious sect,' and had 'incorporated religious sects, all of which is inconsistent with the principles of the constitution, and of religious freedom, and manifestly tends to the reestablishment of a national church.' 2 Va. Statutes at Large of 1792-1806 (Shepherd) 149. Yet just one year after the passage of this Act, Virginia re-enacted a measure exempting from taxation property belonging to 'any * * * college, houses for divine worship, or seminary of learning.' Id., at 200. This exemption dated at least from 1777 and had been reaffirmed immediately before and after ratification of the First Amendment. See 9 Va. Statutes at Large (1775-1778, Hening), at 351; 13 Va. Statutes at Large (1789-1792, Hening), at 112, 241, 336-337. It may reasonably be inferred that the Virginians did not view the exemption for 'houses of divine worship' as an establishment of religion.

Similarly, in 1784 the New York Legislature repealed colonial acts establishing the Episcopal Church in several counties of the State. See N.Y. Laws of 1777-1784, c. 38, p. 661. Yet in 1799, the legislature provided that 'no house or land belonging to * * * any church or place of public worship, * * * nor any college or incorporated academy, nor any school house, * * * alms house or property belonging to any incorporated library, shall be taxed by virtue of this act.' N.Y. Laws of 1797-1800, c. 72, at 414. And early practice in the District of Columbia-governed from the outset by the First Amendment-mirrored that in the States. In 1802 the Corporation of the City of Washington, under authority delegated by Congress, exempted 'houses for public worship' from real property taxes. Acts of the Corporation of the City of Washington. First Council, c. V, approved Oct. 6, 1802, p. 13. See also the congressional Acts cited in the Court's opinion, ante, at 677-678.

Thomas Jefferson was President when tax exemption was first given Washington churches, and James Madison sat in sessions of the Virginia General Assembly that voted exemptions for churches in that Commonwealth. ^[4] I have found no record of their personal views on the respective Acts. ^[5] The absence of such a record is itself significant. It is unlikely that two men so concerned with the separation of church and state would have remained silent had they thought the exemptions established religion. And if they had not either approved the exemptions, or been mild in their opposition, it is probable that their views would be known to us today. Both Jefferson and Madison wrote prolifically about issues they felt important, and their opinions were well known to contemporary chroniclers. See, for example, the record preserved of Madison's battle in 1784-1785 against the proposal in the Virginia Assembly to levy a general tax to support 'Teachers of the Christian Religion,' in the dissenting opinion of Mr. Justice DOUGLAS, post, at 704-706, 719-727. Much the same can be said of the other Framers and Ratifiers of the Bill of Rights who remained active in public affairs during the late 18th and early 19th centuries. The adoption of the early exemptions without controversy, in other words, strongly suggests that they were not thought incompatible with constitutional prohibitions against involvements of church and state.

The exemptions have continued uninterrupted to the present day. They are in force in all 50 States. No judicial decision, state or federal, has ever held that they violate the Establishment Clause. In 1886, for example, this Court in Gibbons v. District of Columbia, 116 U.S. 404, 6 S.Ct. 427, 29 L.Ed. 680, rejected on statutory grounds a church's claim for the exemption of certain of its land under congressional statutes exempting Washington churches and appurtenant ground from real property taxes. But the Court gave not the slightest hint that it ruled against the church because, under the First Amendment, any exemption would have been unconstitutional. To the contrary, the Court's opinion implied that nothing in the Amendment precludes exemption of church property: 'We are not disposed to deny that grounds left open around a church, not merely to admit light and air, but also to add to its beauty and attractiveness, may, if not used or intended to be used for any other purpose, be exempt from taxation under these statutes.' Id., at 407, 6 S.Ct., at 428. ^[6]

Mr. Justice Holmes said that '(i)f a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it * * *.' Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 10, 67 L.Ed. 107 (1922). For almost 200 years the view expressed in the actions of legislatures and courts has been that tax exemptions for churches do not threaten 'those consequences which the Framers deeply feared' or 'tend to promote that type of interdependence between religion and state which the First Amendment was designed to prevent,' Schempp, supra, 374 U.S., at 236, 83 S.Ct., at 1578 (Brennan, J., concurring). An examination both of the governmental purposes for granting the exemptions and of the type of church-state relationship that has resulted from their existence makes clear that no 'strong case' exists for holding unconstitutional this historic practice. ^[7]

Government has two basic secular purposes for granting real property tax exemptions to religious organizations. ^[8] First, these organizations are exempted because they, among a range of other private, nonprofit organizations contribute to the well-being of the community in a variety of nonreligious ways, and thereby bear burdens that would otherwise either have to be met by general taxation, or be left undone, to the detriment of the community. See, for example, 1938 N.Y. Constitutional Convention, Report of the Committee on Taxation, Doc. No. 2, p. 2. Thus, New York exempts '(r)eal property owned by a corporation or association organized exclusively for the moral or mental improvement of men and women, or for religious, bible, tract, charitable, benevolent, missionary, hospital, infirmary, educational, public playground, scientific, literary, bar association, medical society, library, patriotic, historical or cemetery purposes, for the enforcement of laws relating to children or animals, or for two or more such purposes, * * *.' N.Y. Real Prop. Tax Law § 420, subd. 1 (Supp. 1969-1970).

Appellant seeks to avoid the force of this secular purpose of the exemptions by limiting his challenge to 'exemptions from real property taxation to religious organizations on real property used exclusively for religious purposes.' Appellant assumes, apparently, that church-owned property is used for exclusively religious purposes if it does not house a hospital, orphanage, weekday school, or the like. Any assumption that a church building itself is used for exclusively religious activities, however, rests on a simplistic view of ordinary church operations. As the appellee's brief cogently observes, 'the public welfare activities and the sectarian activities of religious institutions are * * * intertwined * * *. Often a particular church will use the same personnel, facilities and source of funds to carry out both its secular and religious activities.' Thus, the same people who gather in church facilities for religious worship and study may return to these facilities to participate in Boy Scout activities, to promote antipoverty causes, to discuss public issues, or to listen to chamber music. Accordingly, the funds used to maintain the facilities as a place for religious worship and study also maintain them as a place for secular activities beneficial to the community as a whole. Even during formal worship services, churches frequently collect the funds used to finance their secular operations and make decisions regarding their nature.

Second, government grants exemptions to religious organizations because they uniquely contribute to the pluralism of American society by their religious activities. Government may properly include religious institutions among the variety of private, nonprofit groups that receive tax exemptions, for each group contributes to the diversity of association, viewpoint, and enterprise essential to a vigorous, pluralistic society. See Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 373, 249 F.2d 127, 129 (1957). To this end, New York extends its exemptions not only to religious and social service organizations but also to scientific, literary, bar, library, patriotic, and historical groups, and generally to institutions 'organized exclusively for the moral or mental improvement of men and women.' The very breadth of this scheme of exemptions negates any suggestion that the State intends to single out religious organizations for special preference. The scheme is not designed to inject any religious activity into a nonreligious context, as was the case with school prayers. No particular activity of a religious organization-for example, the propagation of its beliefs-is specially promoted by the exemptions. They merely facilitate the existence of a broad range of private, non-profit organizations, among them religious groups, by leaving each free to come into existence, then to flourish or wither, without being burdened by real property taxes.

Although governmental purposes for granting religious exemptions may be wholly secular, exemptions can nonetheless violate the Establishment Clause if they result in extensive state involvement with religion. Accordingly, those who urge the exemptions' unconstitutionality argue that exemptions are the equivalent of governmental subsidy of churches. General subsidies of religious activities would, of course, constitute impermissible state involvement with religion.

Tax exemptions and general subsidies, however, are qualitatively different. Though both provide economic assistance, ^[9] they do so in fundamentally different ways. A subsidy involves the direct transfer of public monies to the subsidized enterprise and uses resources exacted from taxpayers as a whole. An exemption, on the other hand, involves no such transfer. ^[10] It assists the exempted enterprise only passively, by relieving a privately funded venture of the burden of paying taxes. In other words, '(i)n the case of direct subsidy, the state forcibly diverts the income of both believers and nonbelievers to churches,' while '(i)n the case of an exemption, the state merely refrains from diverting to its own uses income independently generated by the churches through voluntary contributions.' Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development, pt. II, 81 Harv.L.Rev. 513, 553 (1968). Thus, 'the symbolism of tax exemption is significant as a manifestation that organized religion is not expected to support the state; by the same token the state is not expected to support the church.' Freund, Public Aid to Parochial Schools, 82 Harv.L.Rev. 1680, 1687 n. 16 (1969). Tax exemptions, accordingly, constitute mere passive state involvement with religion and not the affirmative involvement characteristic of outright governmental subsidy. ^[11]

Even though exemptions produce only passive state involvement with religion, nonetheless some argue that their termination would be desirable as a means of reducing the level of church-state contract. But it cannot realistically be said that termination of religious tax exemptions would quantitatively lessen the extent of state involvement with religion. Appellee contends that '(a)s a practical matter, the public welfare activities and the sectarian activities of religious institutions are so intertwined that they cannot be separated for the purpose of determining eligibility for tax exemptions.' If not impossible, the separation would certainly involve extensive state investigation into church operations and finances. Moreover, the termination of exemptions would give rise, as the Court says, to the necessity for 'tax valuation of church property, tax liens, tax foreclosures, and the direct confrontations and conflicts that follow in the train of those legal processes.' Ante, at 674. Taxation, further, would bear unequally on different churches, having its most disruptive effect on those with the least ability to meet the annual levies assessed against them. And taxation would surely influence the allocation of church resources. By diverting funds otherwise available for religious or public service purposes to the support of the Government, taxation would necessarily affect the extent of church support for the enterprises that they now promote. In many instances, the public service activities would bear the brunt of the reallocation, as churches looked first to maintain their places and programs of worship. In short, the cessation of exemptions would have a significant impact on religious organizations. Whether Government grants or withholds the exemptions, it is going to be involved with religion. ^[12]

Against the background of this survey of the history, purpose, and operation of religious tax exemptions, I must conclude that the exemptions do not 'serve the essentially religious activities of religious institutions.' Their principal effect is to carry out secular purposes-the encouragement of public service activities and of a pluralistic society. During their ordinary operations, most churches engage in activities of a secular nature that benefit the community; and all churches by their existence contribute to the diversity of association, viewpoint, and enterprise so highly valued by all of us.

Nor do I find that the exemptions 'employ the organs of government for essentially religious purposes.' To the extent that the exemptions further secular ends, they do not advance 'essentially religious purposes.' To the extent that purely religious activities are benefited by the exemptions, the benefit is passive. Government does not affirmatively foster these activities by exempting religious organizations from taxes, as it would were it to subsidize them. The exemption simply leaves untouched that which adherents of the organization bring into being and maintain.

Finally, I do not think that the exemptions 'use essentially religious means to serve governmental ends, where secular means would suffice.' The means churches use to carry on their public service activities are not 'essentially religious' in nature. They are the same means used by any purely secular organization-money, human time and skills, physical facilities. It is true that each church contributes to the pluralism of our society through its purely religious activities, but that state encourages these activities not because it champions religion per se but because it values religion among a variety of private, nonprofit enterprises that contribute to the diversity of the Nation. Viewed in this light, there is no nonreligious substitute for religion as an element in our societal mosaic, just as there is no nonliterary substitute for literary groups.

As I said in Schempp, the First Amendment does not invalidate 'the propriety of certain tax * * * exemptions which incidentally benefit churches and religious institutions, along with many secular charities and nonprofit organizations. * * * (R)eligious institutions simply share benefits which government makes generally available to educational, charitable, and eleemosynary groups. There is no indication that taxing authorities have used such benefits in any way to subsidize worship or foster belief in God.' 374 U.S., at 301, 83 S.Ct., at 1613.

Notes

1  In fact, it does not appear that the exemptions were even discussed. See, e.g., C. Antieau, P. Carroll, & T. Burke, Religion Under the State Constitutions 122 (1965): 'As far as anyone has been able to discover, the topic was never mentioned in the debates which took place prior to the adoption of the First Amendment.'

2  See, e.g., C. Antieau, A. Downey, & E. Roberts, Freedom from Federal Establishment 20-21, 73-74, 175 (1964); cf. 3 A. Stokes, Church and State in the United States 419 (1950).

3  2 Del.Laws of 1700-1797, p. 1247 (Act of Feb. 9, 1796); 2 Md.Laws (1785-1709, Kilty), c. 89 (Act of Jan. 20, 1798); N.Y.Laws of 1797-1800, c. 72, at 414 (Act of April 1, 1799); 2 Va.Statutes at Large of 1792-1806 (Shepherd) 200 (Act of Jan. 23, 1800). See also 16 Penn.Statutes at Large of 1682-1801, at 379 (Act of April 11, 1799). For practice in other States, see the accounts in Antieau, Carroll, & Burke, supra, n. 1, at 123-169; Antieau, Downey, & Roberts, supra, n. 2, at 73-74; C. Zollmann, American Civil Church Law 238-242 (1917).

4  See, e.g., E. Swem & J. Williams, A Register of the General Assembly of Virginia, 1776-1918, p. 53 (1918); Journal of the House of Delegates of the Commonwealth of Virginia 94, 98 (1799-1800).

5  In an essay written after he had left the presidency, Madison did argue against tax exemptions for churches, the incorporation of ecclesiastical bodies with the power of acquiring and holding property in perpetuity, the right of the Houses of Congress to choose chaplains who are paid out of public funds, the provision of chaplains in the Army and Navy, and presidential proclamations of days of thanksgiving or prayer-though he admitted proclaiming several such days at congressional request. See Fleet, Madison's 'Detatched Memoranda,' 3 Wm. & Mary Q. (3d ser.) 534, 555-562 (1946). These arguments were advanced long after the passage of the Virginia exemption discussed in the text, supra, and even longer after the adoption of the Establishment Clause. They represent at most an extreme view of church-state relations, which Madison himself may have reached only late in life. He certainly expressed no such understanding of Establishment during the debates on the First Amendment. See 1 Annals of Cong. 434, 730 731, 755 (1789). And even if he privately held these views at that time, there is no evidence that they were shared by others among the Framers and Ratifiers of the Bill of Rights.

6  See also, e.g., Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232, 237, 10 S.Ct. 533, 535, 33 L.Ed. 892 (1890), where the Court stated: 'The provision in the fourteenth amendment, that no state shall deny to any person within its jurisdiction the equal protection of the laws, was not intended to prevent a state from adjusting its system of taxation in all proper and reasonable ways. It may, if it chooses, exempt certain classes of property from any taxation at all, such as churches, libraries, and the property of charitable institutions.' Indeed, the Court seems always to have viewed attacks upon the constitutionality of the exemptions as wholly frivolous. See, e.g., Lundberg v. County of Alameda, 46 Cal.2d 644, 298 P.2d 1, appeal dismissed sub nom. Heisey v. County of Alameda, 352 U.S. 921, 77 S.Ct. 224, 1 L.Ed.2d 157 (1956); General Finance Corp. v. Archetto, 93 R.I. 392, 176 A.2d 73, (1961), appeal dismissed, 369 U.S. 423, 82 S.Ct. 879, 8 L.Ed.2d 6 (1962).

7  Compare the very different situation regarding prayers in public schools. The practice was not widespread at the time of the adoption of the First Amendment. Legislative authorization for the prayers came much later and then only in a relatively small number of States. Moreover, courts began to question the constitutionality of the practice by the late 19th century. The prayers were found unconstitutional by courts in six States and by state attorneys general in several others. See 374 U.S., at 270, 274-275, 83 S.Ct., at 1597, 1599.

8  The only governmental purposes germane to the present inquiry, of course, are those that now exist. As I said in Schempp, 'In the Sunday Law Cases, we found in state laws compelling a uniform day of rest from worldly labor no violation of the Establishment Clause * * *. The basic ground of our decision was that, granted the Sunday Laws were first enacted for religious ends, they were continued in force for reasons wholly secular, namely, to provide a universal day of rest and ensure the health and tranquillity of the community. In other words, government may originally have decreed a Sunday day of rest for the impermissible purpose of supporting religion but abandoned that purpose and retained the laws for the permissible purpose of furthering overwhelmingly secular ends.' 374 U.S., at 263-264, 83 S.Ct., at 1593-1594.

9  In certain circumstances, of course, the economic value of a subsidy exceeds that of an exemption. If the only state assistance received by a religious organization is a real property tax exemption, the church must raise privately every cent that it spends. If, on the other hand, the only state aid to a church is a general subsidy, the church is relieved of the need to support itself to the extent that its subsidy payments from the State exceed its tax payments to the State. Thus, to take the extreme case, a lightly taxed religious organization that received a large, general subsidy could purchase property, construct buildings and maintain its program wholly at public expense. Such dependence on state support is impossible when the only aid provided is a real property tax exemption.

10  A real property tax exemption cannot be viewed as the free provision by the State of certain basic services-fire, police, water, and the like. As the Court, ante, at 676, points out, 'the fire and police protection received by houses of religious worship are no more than incidental benefits accorded all persons or institutions within a State's boundaries, along with many other exempt organizations. The appellant has not established even an arguable quantitative correlation between the payment of an ad valorem property tax and the receipt of these municipal benefits.' See generally Bittker, Churches, Taxes and the Constitution, 78 Yale L.J. 1285, 1304-1310 (1969).

11  See also, e.g., Bittker, supra, n. 10, at 1285-1304.

12  The state involvement with religion that would be occasioned by any cessation of exemptions might conflict with the demands of the Free Exercise Clause. Cf. Presbyterian Church in United States v. Mary Eliz. Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969); Maryland & Virginia Eldership of Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 368-370, 90 S.Ct. 499, 500-501, 24 L.Ed.2d 582 (1970) (Brennan, J., concurring). It is unnecessary to reach any questions of free exercise in the present case, however. And while I believe that 'hostility, not neutrality, would characterize the refusal to provide (the exemptions) * * *, I do not say that government must provide (them), or that the courts should intercede if it fails to do so.' 374 U.S., at 299, 83 S.Ct., at 1612.