Amicus Curiae Brief — Walz v. Tax Comm'n of City of New York

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(i)

TABLE OF CONTENTS i

Page

INTRODUCTORY STATEMENT ..............-.-. 1

THE INTEREST OF THIS AMICUS ................ 2

QUESTIONS PRESENTED .............---00005- 6

SUMMARY OF ARGUMENT ................2-08- 7

Pe La kick akan es ka A050 A ae a0 We 8 a6 88 ws 21

I. The Constitutional Issue Has Not Been Properly Pre-

0 EOP rer ere ee ee Cree eee ee ee 21

Il. The Precise Constitutional Issue To Be Decided..... 25

III. America’s Undeviating Historical Policy and Practice

of Exempting Religious Property from Taxation ..... 27

A. The Important Place of History in Constitutional

PT Tee Cee eee TEE Tere 27

B. Religious Tax Exemptions Existed in the Earliest

CS Peer Tee eee eee 29

a A Wes 6 haw Ae eK KR 868 00 Bede 31

TP Coc cc ei sees sucess sswevas 34

er ae ee ee eee ee 36

I ov Soba 5 od 6 ae 6 cae a eee 38

RE Er GE nk nev wn cts nas nassccs 40

C. The Tradition of Religious Tax Exemptions Was

Continued in the Civil War Period and After-

ee are or ee ee ee ee 40

D. From the Blaine Amendment to the Present .... . 43

E. The Favorable Congressional View of Religious

Te Ce eee eee eT Tee ee 45

F. The Ineluctable Conclusion from History ....... 46

IV. The Case Precedents Unanimously Support Tax

Exemptions of Church Property................ 48

A. The Force of Precedent ..........00eceeeee 48

(ii)

B. The State and Lower Federal Court Decisions

Unanimously Support the Exemptions ......... 49

C. The Precedents Sustaining Religious Tax Exemp-

Ch As a oe se ow ees 52

V. The New York Exemption Is Fully in Accord with

This Court’s Decision in Everson .............. 58

VI. The New York Exemption Is Fully in Accord with

This Court’s Decision in Schempp .............. 63

A. Application of the Schempp Test ............ 64

B. Is the Schempp Test Fully Applicable? ........ 70

VII. The New York Exemption Is Fully in Accord with

This Court’s Decisions in the Area of Religious

Exemptions from General Secular Laws .......... 75

cS § OPE eee ee Tee Tee ree 83

ree eee eee 85

Rp III Bc ccs acces eccesv ace 86

PUT ED nc aawcceeaseseeenns 88

VIII. Probable Practical Consequences if the Exemptions

CE Vieba te eA DA ea 4K ee hacen oe 9}

i eee ee OE GE ng we eek ces cenevenen 9]

B. The Adverse Effect on the Churches .......... 97

C. The Structure of American Society Would Suffer .. 98

NE 0 654 6AW SK ee eee ek Mek we Saw Nabe 98

TABLE OF CITATIONS

Cases:

All Saints Parish v. Brookline, 178 Mass. 404, 412, 59 N.E.

Ss PED 3 Kae e ek oe 4e koe Viecewnea® 35, 36

Arlan’s Dept. Store v. Kentucky, 371 U.S. 218 (1962) . . 16, 83

UE | Se Pere TERETE PCTeTA CT CS

Barton v. Sentner, 353 U.S. 963 (1957)

(iii)

Bell’s Gap R. Company v. Pennsylvania, 134 U.S. 232,

SP MEE Ca VV ORAAS CARA SANs SEER KROES CORY 11, 53

Bishop of Nesqually v. Gibbon, 158 U.S. 155, 171 (1895).. 53

Board of Education v. Allen, 392 U.S. 236 (1968) ..... 56, 63

Board of Education v. Barnette, 319 U.S. 624 (1943)... . 16,60

Braunfeld v. Brown, 366 U.S. 599, 603-09 (1961) ....... 89

Brown v. Board of Education, 347 U.S. 483 (1954)...... 57

Cochran v. Board of Education, 281 U.S. 370 (1930)..... 56

Commonwealth v. Lynchburg Y.M.C.A., 115 Va. 745, 747,

Sk ID SA cere ceca ees ch cowed’ 34

Commonwealth v. Y.M.C.A., 116 Ky. 711, 719, 76 S.W.

ED 6 SAN oc hKA44 5 OV AON UREA 50

Congregational Society v. Ashley, 10 Vt. 241, 245 (1838)... 50

Connecticut General Life Ins. Co. v. Johnson, 303 U.S.

PRA AS54456 o aK eke heat ewhetundennes 49

Dickman v. School District No. 620, 230 Ore. 238, 366

P< sikh ch anak heehee 0 wees BAe S 56

Ellis v. Dixon, 349 U.S. 458, 462 (1955) ............. 21

Everson v. Board of Education, 330 U.S. 1 (1947) ..... passim

Fellowship of Humanity v. County of Alameda, 153 Cal.

SE GTA, BES Fe Se MOO ES OED cb cece ee evases 51

Flast v. Cohen, 392 U.S. 83 (1968) .............6.8. 23, 80

Flint v. Stone Tracy Co., 220 U.S. 107, 160 (1911) ..... 54

Follett v. Town of McCormick, 321 U.S. 573 (1944) .... 15, 16,

60, 79, 80, 81

Garrett Biblical Institute v. Elmhurst State Bank, 331 Ill.

_. § 3: eel, Peeeerrerrrer rare 44

General Finance Corp. v. Archetto, 93 R.1. 392, 176 A.2d

73 (1961), app. dism. 369 U.S. 423 (1962) ........ passim

Gibbons v. District of Columbia, 116 U.S. 404, 408 (1886). 45, 53

Gonzalez v. Archbishop, 280 U.S. 1 (1929)............ 72

(iv)

Gurney v. Ferguson, 190 Okla. 254, 122 P.2d 1002 (1942)... 57

Horace Mann League v. Board of Public Works, 242 Md.

645, 220 A.2d 51 (1966), cert. den. 385 U.S. 97

i. FPPTeren Seyret rTrerr veer Te 38

Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922) .... 8,28

Jones v. Opelika, 316 U.S. 584 (1942), reversed on rehear-

ing 319 U.S. 103 (1943) .......... 15, 16, 60, 79, 80, 8)

Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952) .... 2

Kimbrough v. ‘/nited States, 364 U.S. 661 (1961) ...... 24

Kovacs v. Cooper, 336 U.S. 77, 95 (1949) ... 0... 2.85. 47

Kreshik v. St. Nicholas Cathedral, 363 U.S. 190 (1960). ... 72

Leland v. Oregon, 343 U.S. 790, 798 (1952)... ........ 49

Lundberg v. County of Alameda, 46 Cal.2d 644, 298 P.2d

1, 7 (1956), app. dism. sub nom. Heisey v. County of

QamaES TSO GR. Fae CISED ce wen vacescsasan Passim

Magoun vy. Illinois Trust and Savings Bank, 170 U.S. 283,

PRK 46h ots nae s WS h 66445606 4.0066860.00 54

McCollum vy. Board of Education, 333 U.S. 203, 256

Pc: Ghivekwe on abe kee kee ets esh saben 81

McGowan v. Maryland, 366 U.S. 420 (1961) ........ passim

Missionaries of Our Lady of La Salette v. Michaliski, 15

Wis.2d 593, 113 N.W.2d 593 (1955) .............. 51

Mitchell v. Consolidated School Dist. No. 201, 17 Wash.2d

MF f | eee CeCe TUTTE TTT 57

Murdock v. Pennsylvania, 319 U.S. 105 (1943) ....... 15, 16,

60, 79, 80, 8)

Murray v. Comptroller of the Treasury, 241 Md. 383,

216 A.2d 897 (1966), cert. den. 385 U.S. 816 (1966)... 12,

19, 38, 55, 95

Near v. Minnesota, 283 U.S. 697, 713 (1931) .......... 47

New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921). 10, 48

Nicol v. Ames, 173 U.S. 509, 516 (1899)

(v)

Orr v. Baker, 4 Ind. 86 (1853) ..... 2.2.2... ee eee 50

Parker v. County of Los Angeles, 338 U.S. 327, 333

UR Li Gina dee cedwsdcddvesecseaceescees 25

Plessy v. Ferguson, 163 U.S. 537 (1896). ...........-- 57

Poe v. Ullman, 367 U.S. 497 (1961) ...... 2.622555. 7, 24

Powell v. Texas, 392 U.S. 514, 521 (1968) ....... 21, 24, 25

Presbyterian Church v. Hull Church, 393 U.S. 440 (1969). . 71

Reapportionment Cases, 377 U.S. 533 et seq. .......... $7

Reynolds v. United States, 98 U.S. 145, 165 (1878). ..... 28

Rice Co. v. Bishop Seabury Mission, 90 Minn. 92, 95

ef rere rey Tree ee eee 50

Rogers v. Hennepin Co., 240 U.S. 184, 192 (1916) ...... 54

St. Barbara’s Church v. City of New York, 243 App. Div.

SPl, ZF U.Y. Bam. SHB CHGSS) «wwe sseseccees 50

Schade v. Allegheny Co. Institution District, 386 Pa. 507,

ey ee ee EE 5. 5 6% 6 640 0b unk OR k5 608 Kaka $7

School District of Abington Township v. Schempp, 374

ED bs RaeR ANG od Ok SS dR Ok DOR passim

Sherbert v. Verner, 374 U.S. 398 (1963) ...... 16, 60, 70, 71

Smiley v. Holm, 285 U.S. 355 (1932). ............44.- 57

State v. Alabama Educational Foundation, 231 Ala. 11,

Se ek ED DAL ASG Kan On 4d bKR SN KaA CROOKS 50

State v. Collector of New Jersey, 24 N.J.L. 108, 120

Pe eee ee Tee Tey ye eee re rere 50

State of Ohio v. Knopp, 57 U.S. 369, 384 (1853) .... 19,96

Strauder v. West Virginia, 100 U.S. 303 (1879) ......... 57

Sunday Closing Law Cases, 366 U.S. 420, 582, 599, 617

| PTT TT TTT ECT TTT Te Tree 16, 60, 82

Swart v. South Burlington Town District, 122 Vt. 177,

167 A.2d 514 (1960), cert. den. sub nom. Anderson

v. Swart 366 U.S. 925 (1961). ww ccc eee 57

(vi)

Trustees of First Methodist Episcopal Church v. City of

Atlanta, 76 Ga. 181, 193 (1886)... ..........22.. 50

Trustees of Griswold College v. State, 46 la. 275, 282,

FS ee ee eee ee ee 44, 50

United States v. Allegheny Co., 322 U.S. 174, 176 (1944). . %

United States v. Graham, 110 U.S. 219, 221 (1884). ..... 90

Y.M.C.A. v. Douglas Co., 160 Neb. 642, 646, 83 N.W.

ad eb hn Kha ek éns 54504004 KO088 50

Yale v. Town of New Haven, 71 Conn. 316, 332, 42 A.

Dhan ewe Ah ba kadaetecken a ecand 29, 50

Wade v. Mayo, 334 U.S. 672, 680 (1948)... .......2.. 56

Washington Ethical Society v. District of Columbia, 101

App. D.C. 371, 373, 249 F.2d 127, 129 (1957) .... 51,52

Watson v. Jones, 80 U.S. 679 (1871) .... 2... 2 ee eee 72

Wolfe v. North Carolina, 364 U.S. 177, 194 (1960) ...... 21

Wood v. Broom, 287 U.S. 1 (1932) .............005. 57

Zorach v. Clauson, 343 U.S. 306 (1952)....... 16, 60, 81, 82

CONSTITUTIONAL AND STATUTORY PROVISIONS:

Act of March 2, 1867, 14 Stat.429 ................ 41

Act of June 25, 1868, 15 Stat. 73

Annotated Code of Maryland (1965), Art. 81, Sec. 9(4)... 38

Arkansas Constitution, Art. X, Sec. 2 (1868) .......... 42

Colorado Constitution, Art. X, Sec. 5 (1876)

District of Columbia Laws:

Act of February 24, 1804, Ch. 142, Sec. 254 ......... 40

Act of October 6, 1802, Bothwell’s Compilations of

Laws of Washington (1833)

SE, BU ONG 6 hb shah eee e ce ncasesecs 43, 46

17 Stat. 399 (1877)... 1. cee eee eee eee eee 43, 46

ey es EE I CEOED 6 ccc cttw ce ceceasennes 46

Federal Income Tax of 1894, 28 Stat. 509 (1894)....... 46

Florida Constitution, Art. XIII, Sec. 1 (1868).......... 42

Hennings, Virginia States at Large 84-86 (1785-86) ...... 32

Internal Revenue Code (1954), Secs. 502(c)(3), 2055,

RS eee ere eee ee eee eee 46

lowa Code Ann., Sec. 427.1(9) ef seq. .....-.-5005e 44

lowa Constitution, Art. 3, Sec. 1 (1857)... ..........4. 44

Kilty’s Laws of Maryland, Laws of 1797, Ch. 89 (1785-

ee re Sn ee re eee ee 37

Louisiana Constitution, Art. 118 (1868) .............. 42

Maryland Constitution (1776):

i Mh cheep ck ebb ese see aces 36, 37

Fs OE oo Sos. c se cee cee evenness 36, 37

Massachusetts Code L.A., Ch. 59, Sec. 5, Cl. 11 ........ 35

Massachusetts Constitution, Ch. 5, Sec. 2 (1780)........ 34

Se es Oe Ms Me Oe A ces weeccsccanencs 36

New York Constitution, Art. 16, Sec. 1] ............. 6, 25

New York Real Property Tax Law, Sec. 420, Subd.1 ... 6,25

North Carolina Constitution, Art. V, Sec. 5 (1868) ...... 42

South Carolina Constitution, Art. VIII, Sec. 2 (1790)... .. 40

South Carolina Constitution, Art. IX, Sec. 1 (1868)...... 42

2 South Carolina Statutes at Large, 236-46, 255-56 .... 38,39

Tariff Act of 1909, 36 Stat., Ch. 6, 11, 112-117 (1909) ... 54

Virginia Constitution, Sec. 59, Sec. 183(3) (1902)....... 34

Virginia Statutes at Large, Shepherd’s Continuation of Hen-

Ss Oy GET Gk owe cew ee cscavers 32, 33

(viii)

United States Constitution:

ee er Passim

FY PPT TTT TTT TT Te Cee eT 21

ea tesnckbaceeabes Passim

I o's. i 5-6-5505 640 0s04 50 ORE EE 46

MISCELLANEOUS: |

1 American State Papers (Federal) 414 (1858) ......... 4]

Ames, Proposed Amendments to the Constitution 277

Cae SH SCOAMERESAENMR ES CRED MEDD RRK COD 42

Antieau, Carroll and Burke, Religion Under State Consti-

tutions 121-23, 126 (1965) ....... nied ec 29, 30, 36, 42

Antieau, Downey and Roberts, Freedom from Federal

Establishment 128-131 (1964)................4.. 88

Bailey, Tax Exemption in New York 15 (1932)......... 94

Balk, The Religion Business 55-96 (1968). ............ 26

Bittker, The Case of the Fictitious Taxpayer: The Federal

Taxpayer’s Suit Twenty Years After Flast v. Cohen, 36

a ie PG ota e sh on ece ew eeanceees 24

Blake, Tax Exemption and the Church, Christianity Today

PE ae RE 6 6 6.05 O44 4 0 0k's 65 04s 000 084 92

Cardozo, Growth of the Law 62 (1924).............. 52

Constitutionality of Tax Benefits Accorded Religion, Note,

SD Ge. Ba, Ba, Fe CHO own ces ecncawecancs 45

Davis, The Case of the Real Taxpayer: A Reply to Pro-

fessor Bittker, 36 Chi. L. Rev. 375 (1969) .......... 24

Dixon, Democratic Representation 141 (1968).......... 57

Douglas, The Springfield Church Survey (1926)......... 97

Drinan, Religion, the Courts, and Public Policy 10-13

(ix)

The Federalist, No. 36 (Hamilton)...............+-- 41

Freund, Public Aid to Parochial Schools, 82 Harv. L. Rev.

"eS 7) reese se er 15,77

Gianella, Religious Liberty, Nonestablishment and Doc-

trinal Development—Part II. The Nonestablishment

Principle, 81 Harv. L. Rev. 513, 544-54 (1968) ...... 69

Holmes, The Common Law (1945) ...........-255: 28, 48

Joint Statement of the National Council of Churches and

the United States Catholic Conference, Hearings on

H.R. 13270 (The Tax Reform Act of 1969), before the

Senate Committee on Finance, 91st Cong., Ist Sess.,

83 (May 2, 1969) (unofficial print) ............... 27

Journal of the House of Delegates of the Commonwealth

of Virginia 75, 98 (1799-1800) .................. 33

Judicial Intervention in Church Property Disputes—Some

Constitutional Considerations, Note, 74 Yale L.J. 1113,

of re rer ee ered ere 3i

Kauper, The Constitutionality of Tax Exemptions for Reli-

gious Activities in the Wall Between Church and State

TCE a SUD tA heen dn cic eadenaee 90

Kurland, Religion and the Law (1962) ............... 75

McKay, Reapportionment: The Law and Politics of Equal

eee 58

Meyer, The School, the State, and the Church, Atlantic

Monthly 45, 48 (Nov. 1948).................... 85

Morgan, The Politics of Religious Conflict 42 (1968) ..... 98

New York Times—June 20, 1969, pp. 1, 35

O’Brien, Government and Religion, 5 Vill. L. Rev. 335,

EE Nia deen ca hE Eee Ghee conan 30

Paulsen, Preferment of Religious Institutions in Tax and

and Labor Legislation, 14 Law & Contemp. Prob. 120

eer errr 10, 48, 91, 92, 94, 97

Pfeffer, Church, State and Freedom 183 (1953)......... 29

(x)

Real Estate Tax Exemption in New York City—A Design

for Reform, Citizens Budget Commission 1967 ..... 93, 98

Remarks of Thaddeus Stevens, Congressional Globe, 49th

Cong., 2d Sess. 2465 (1867) ................ 4]

Report of the New York State Commission for the Revi-

sion of the Tax Laws 121 (1932)................., 93

Robertson, Should Churches Be Taxed? (1968) ....... 26, 42

Schwarz, No Imposition of Religion: The Establishment

Clause Value, 77 Yale L.J. 692 (1968)............. 75

Special Joint Committee on Taxation and Retrenchment,

Tax Exemption in State of New York (1927)........ 93

State of New York, Temporary Committee on the Revi-

sion and Simplification of the Constitution, Staff.

Report on Tax Exemptions (No. 28) 3 (1959) ....... 93

Stern & Gressman, Supreme Court Practice 164 (3d Ed.) ... 56

Stimson, The Development of Tax Exemption in South

Carolina, 4 S.C.L.Q. 396 (1952)... .........0.. 29,92

Stimson, The Exemption of Churches from Taxation, 18

BE lg RUUD Kwik 6 cc eee wae ee aseeses 39

3 Stokes, Church and State in the United States 418

EE OU rr ee | oer ar 29

Swem and Williams, A Register of the General Assembly

of Virginia, 1776-1918, 53 (Richmond, 1918)........ 33

Tobin, Hannan and Tolman, The Exemption from Taxa-

tion of Privately Owned Real Property Used for Reli-

gious, Charitable and Educational Purposes in New

York State 42 ee er re re ee 93

Tolman, Tax Exemption in New York State, The Tax

SMES 1 CHO TSS) on nw cece eee eneens 94

Van Alstyne, Tax Exemptions of Church Property, 20

Ohio St. L.J. 461-62 (1959)... 2.2.2.0... ee eee 29, 45

Zollman, Tax Exemptions of American Church Property,

14 Mich. L. Rev. 646 (1916) .............000085 30

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

No. 135

FREDERICK WALZ, Appellant,

Tax COMMISSION OF THE CiTy OF NEW York, Appellee.

Appeal from the Court of Appeals

of the State of New York

BRIEF OF UNITED STATES CATHOLIC CONFERENCE,

AMICUS CURIAE .

INTRODUCTORY STATEMENT

The facts of record in this case, the pertinent New

York constitutional and statutory provisions, the provi-

sions of the United States Constitution involved, and

the opinions of the courts below are set out in the briefs

filed by the appellant and the appellee. This amicus

accepts them for purposes of its own brief. Both parties

have consented in writing to the filing of this brief

amicus curiae by the United States Catholic Conference,*

THE INTEREST OF THIS AMICUS

USCC is an agency of the Catholic Bishops of the

United States. Its predecessor, established in 1919, was

known as the National Catholic Welfare Conference. The

prime purpose of USCC is to unify and coordinate activi-

ties of the Catholic people of the United States in pro-

grams and works of education, social welfare, health

and hospitals, family life, immigrant aid, poverty assis-

tance, civic education, youth activities, communications

and public affairs, with emphasis on the preservation of

religious liberty in America.

Among its responsibilities, USCC is authorized to

represent the Catholic people of the United States,

speaking through their Bishops on matters of public con-

cern. When deemed appropriate, USCC is authorized to

offer its views, if permitted by court rule or practice, in

Federal and State court litigation touching important

interests of the Catholic people in the United States,

especially in cases involving constitutional issues turning

upon the proper construction of the Due Process Clause

of the Fourteenth Amendment of the Constitution of

the United States, as that provision protects the free-

doms guaranteed by the religion clauses of the First

Amendment. -

It is the concern of USCC that exemptions voluntarily

granted by the tax laws of all the States for religious

property used exclusively for religious activities not be

*Hereinafter usually referred to as ““USCC”’.

constitutionally forbidden by this Court. This amicus

considers such tax exemptions of church properties,

which have been extended by all the States to religious

organizations (in the broadest sense of the term “reli-

gious”), to be one of the main bases of the American

constitutional tradition under which State and Church

remain respectful of one another but forever separate

from each other. The deliberate, unbroken and universal

practice of willingly affording tax exemptions for the

property of religious organizations devoted to religious

uses has a special efficacy and constitutional importance

when the exemptions are those afforded to houses or

places of religious worship. For this Court to require

extension of the auditing eye and collecting hand of the

State’s tax authorities in this area would be an unneces-

sary mandate and, perhaps, an invidious disregard of the

uniquely successful American experience in providing

and protecting religious liberty for all citizens.

USCC also is of the opinion that other adverse conse-

quences might occur, should the tax exemptions of the

type involved in the instant case be forbidden. If such

exemptions are abolished, it will be impossible for the

churches to continue to carry on, at anything like their

present level, those important public welfare activities

of benefit to people, as well as to society and the State

which for so long have been recognized as among the

prime obligations of any church or organization worthy

of the name “‘religious”’.

Some indication of the relative magnitude and impor-

tance of the public welfare activities conducted by the

Catholic Church in the United States may be gained from

the following statistics: At the present time agencies

connected with the Catholic Church are operating 834

hospitals in the United States which contain 156,838

beds (approximately 30% of the bed capacity for general

hospitals in the Country). In 1967, these hospitals had

5,446,675 admissions. The school system is of com-

parable size. In 1967 there were 10,603 parochial

schools enrolling 4,143,150 students and 2,356 second-

ary schools enrolling 1,098,756 students. Additionally,

there are 308 colleges sponsored or maintained by cor-

porations and religious orders affiliated with the Catholic

Church. These have an enrollment of 433,960 students,

In 1968 there were 103 protective institutions with

8,110 students; 142 special hospitals and sanitoria with

a bed capacity of 11,578; and 239 child care institutions

with 21,237 resident children. In that year, there were

25,188 foster homes operated in connection with Cath-

olic charities. Agencies of the Catholic Church maintain

420 homes for the aged with 37,966 residents. Agencies

of the Catholic Church in America also sponsor a number

of public housing projects to which they make substantial

donations.

The public welfare activities of the Catholic Church

in America and its related or affiliated corporations

and agencies are seeking to lend aid to Americans dis-

tressed in many different ways, related to health, wel-

fare, poverty, education, urban housing and civil rights.

Substantial amounts of money, as well as the contri-

buted services of many thousands of religious personnel

and a host of lay volunteers, will be required in order

to respond adequately to the increasing tempo of these

~ gocial challenges, not only in the depressed, center city

sections of the major metropolitan areas of the Nation,

but also in the rural and economically underdeveloped

areas of America where poverty flourishes witi equal

intensity.

The public welfare responsibilities conducted by the

Catholic Church in the United States are matched in

magnitude and scope by those carried on by the other

churches. They, too, face the same challenges to the

effective fulfillment of those responsibilities in today’s

troubled society. Any diminution, by the elimination

of tax exemptions, of the capacity of all religions to

respond to these challenges would be prejudicial not

only to religious liberty but also to the secular general

welfare.

Finally, it is USCC’s specific concern in this litiga-

tion that State tax exemptions provided places of

religious worship, which from the beginning of the

Nation have formed a significant part of the successful

American experience in religious freedom, not be unal-

terably prohibited by a strained and non-historical read-

ing of the Fourteenth Amendment and of the Non-

Establishment Clause of the First Amendment. The

house of worship is the prime example of religious prop-

erty devoted to a religious use. Its exemptibility, there-

fore, is the very heart and center of this case. The

Court is not dealing with mere pieces of real estate

or everyday buildings of commerce or industry. The

Court is dealing with the pulpit, the sanctuary and the

altar.

For the reasons stated below, the amicus supports

the appellee in urging that the Court either dismiss the

appeal or affirm the decision of the Court of Appeals of

New York.

QUESTIONS PRESENTED

The appellant challenges provisions of the New York

Constitution and a provision of the New York Real Prop.

erty Tax Law on the grounds that the tax exemptions

they afford real estate owned by nonprofit religious

organizations and used exclusively for religious purposes

violate the religion clauses of the First Amendment, as

these are incorporated in the Fourteenth Amendment.

However, the amicus believes that there is another issue,

jurisdictional in nature, which the Court should exam-

ine. This second issue, because of its nature, perhaps,

was not considered by the courts below, but merits

consideration in this Court.

The questions the amicus believes to be presented on

the present record are:

1. Has the appellant properly presented a fed-

eral question on the basis of the record made in the

courts below?

Z. Does the tax exemption granted by Article

XVI, Section 1 of the New York Constitution and Sec-

tion 420, Subd. 1 of the New York Real Property Tax

Law with respect to real property owned by religious

organizations and used exclusively for religious purposes

violate the religious guarantees of the Due Process Clause

of the Fourteenth Amendment, in so far as it incorpo-

rates the Non-Establishment and Free Exercise Clauses

of the First Amendment?

SUMMARY OF ARGUMENT

The barren record out of which this appeal emerges

raises the question as to whether the case is a proper

vehicle for the disposition of the important issues which

the appellant attempts to raise. The many substantial

omissions of relevant fact, relating not only to the appel-

lant’s interest but also to the amount, nature, scope and

effect of the exemptions which he challenges, argue that

the instant litigation is “‘too fragile a foundation for

indulging in constitutional adjudication.” Poe v. Ullman,

367 U.S. 497, 501 (1961). Unless the Court is disposed

to affirm the decision of the Court of Appeals of New

York, the amicus urges that it vacate its order noting

probable jurisdiction of this case and dismiss the appeal

for want of a properly presented federal question.

Il.

The issue in this case is not whether the tax exemption

under attack is desirable from the standpoint of legisla-

tive policy or from the perspective of one, many or all

religions. The sole question for decision is whether, if

a governmental body makes a considered policy judgment

to exempt from taxation the property of nonprofit reli-

gious organizations used exclusively for religious pur-

poses, as part of a general scheme of taxation in which

similar exemptions are afforded the property of a great

many nonprofit secular organizations, the governmental

body is constitutionally forbidden to do so by the First

or Fourteenth Amendments.

Ill.

A. In McGowan v. Maryland, 366 U.S. 420 (1961),

this Court found “the place of Sunday Closing Laws

in the First Amendment’s history both enlightening and

persuasive.” The evidence of “the place” of tax exemp-

tions for religious property “in the First Amendment’s

history” is even more “enlightening and persuasive” in

demonstrating that there is nothing constitutionally in-

compatible between such exemptions and the require-

ments of the First or Fourteenth Amendments. Tax

exemptions for church property have been “practiced

by common consent for two hundred years.” Jackman

v. Rosenbaum Co., 260 U.S. 22, 31 (1922). That un-

broken constitutional tradition should not now be im-

mutably prohibited by this Court.

B. The Constitution itself makes no reference to tax

exemptions. Nor was there any discussion of the practice

in the Constitutional Convention, in the petitions re-

questing enactment of the Bill of Rights, or in the

debates on the Bill of Rights. However, following the

adoption of the new Constitution and ratification in

1791 of the Bill of Rights, most of the original 13

States soon passed statutes or adopted constitutional

provisions specifically exempting religious property from

taxation. The Virginia experience is especially pertinent

and demonstrates that the birthplace of modern religious

liberty in America saw nothing incompatible between

complete disestablishment and tax exemptions for reli-

gious property. Similarly, during the Presidency of

Thomas Jefferson, Washington, D. C., the seat of the

new government, adopted a taxing ordinance which

exempted houses for public worship.

C. By the time of the Civil War, the great majority

of the States had embodied into law, either through

constitutional provisions or by statute, or both, the

universal custom of granting tax exemptions for religious

property. After the Civil War ended, Congress required

the former States of the Confederacy, as a condition

precedent for readmission to the Union, to rewrite their

constitutions for Congressional approval. Significantly,

in the constitutions of five of those States adopted for

readmission to the Union there was specific provision,

either mandatory or permissive in nature, for exemption

of church properties.

In 1875, President Grant proposed a constitutional

amendment, one provision of which would have ended

tax exemptions for church property. Representative, later

Senator, Blaine of Maine submitted a proposed consti-

tutional amendment incorporating most of President

Grant’s suggestions but which did not include, however,

the latter’s proposal that tax exemptions for churches

be eliminated. The proposed amendment never cleared

the Congress. The constitutions of 10 States admitted

to the Union after the adoption of the Fourteenth

Amendment contained provisions ‘imiting the use of

public funds in aiding religion, but at the same time

provided for some variety of tax exemption for church

properties used for religious purposes. It is clear, there-

fore, that Congress never seriously entertained the notion

that State exemption of church property from property

taxes offended fundamental provisions of the Bill of

Rights.

D. The catalyst which the Blaine amendment provided

the States in adopting constitutional provisions which

limited the expenditure of public funds to assist religion

did not induce them to eliminate the constitutional or

statutory authority which sanctioned tax exemptions for

ecclesiastical property. At the present time, the consti-

tutions of thirty-six of the States contain either a man-

datory or permissive provision for the exemption of

property used for religious purposes. In the remainder

of the States a similar exemption is provided by statute.

The Congress has also indicated its consistent endorse-

ment of the practice of tax exemptions for religious

property. Exemptions for religious institutions were pro-

vided for in the federal income tax of 1894 and have

been carried over into the present Internal Revenue Code.

E. From the time the Nation began, every State and

Federal legislative body that has taken the question up

has come down on the side of permitting tax exemption

for church properties used for religious purposes. Yet

the religious tax exemptions sanctioned “during our

history . . . [have] not in fact begun a series of steps

toward the establishment of religion.’’ Paulsen, Prefer-

ment of Religious Institutions In Tax and Labor Legisla-

tion, 14 Law & Contemp. Prob. 120, 147 (1949). Truly,

in this particular area of Church-State relationships, “a

page of history [has been proved to be] worth a volume

of logic.”” New York Trust Co. v. Eisner, 256 U.S. 345,

349 (1921).

IV.

A. The constitutionality of permitting tax exemption

for religious property has been held as constitutional

by every court, State or Federal, including this Court,

that has ever passed upon the issue. It is clear in this

case that the accumulated force of unanimous judicial

mA Ree

opinion, consistently adhered to and voiced many times

from colonial days to the present, constitutes a formid-

able basis from which to argue for the continued consti-

tutional permissibility of tax exemptions for church

properties used for worship.

B. No case has been found holding that the granting

of such exemptions is contrary to State or Federal con-

stitutional provisions regarding the support or establish-

ment of religion, and, when the matter has been raised,

the exemptions have been upheld in each instance. This

was true before this Court spoke in Everson v. Board of

Education, 330 U.S. 1 (1947); it has remained true

following that important decision. While the precise

rationales upon which the courts have unanimously

arrived at the same conclusion concerning the constitu-

tionality of tax exemptions for church property have

varied in particular cases, the point is that every State

and Federal court that has dealt with the issue from

1791 to the present has upheld the constitutionality

of religious tax exemptions.

C. Prior to its decision in Everson v. Board of Educa-

tion, this Court had only one opportunity to pass upon

the religious tax exemption within the context of the

First Amendment, acknowledging in dicta in that case

that Congress had the power to exempt church buildings

and grounds from real estate taxes. Gibbons v. District

of Columbia, 116 U.S. 404, 408 (1886). During the

pre-Everson period the Court several times pointed to

the exemption of church property as an illustration of

a permissible legislative power to classify for purposes

of taxation without violating the Equal Protection Clause

of the Fourteenth Amendment. Bell’s Gap Ry. Co. v.

Pennsylvania, 134 U.S. 232, 237 (1890).

aonech Dn”

Following the Everson case, this Court has had three

prior opportunities to decide the very issue raised on

the instant appeal. In two instances the Court upheld

the exemption on the merits. Lundberg v. County of

Alameda, 46 Cal.2d 644, 298 P.2d 1 (1956), app. dism.

sub nom., Heisey v. County of Alameda 352 US. 92}

(1956); General Finance Corp. v. Archetto, 93 R.1. 392,

176 A.2d 73 (1961), app. dism. 369 U.S. 423 (1962).

In Murray v. Comptroller of the Treasury, 241 Md.

383, 216 A.2d 897 (1966), cert. den. 385 U.S. 616

(1966), the Court denied a petition for certiorari seeking

review of a decision of the Court of Appeals of Maryland

upholding tax exemption for structures used exclusively

for public worship.

The unanimous action of all courts which have con-

sidered the issue in upholding exemptions for church

property serves to distinguish the practice from other

types of Church-State involvements in which certain

governmental policies have been upheld in some cases

and struck down in others. Moreover, unlike the back-

ground preceding this Court’s comparatively recent land-

mark decisions in the areas of civil rights and reappor-

tionment, there is not only present here a long continued,

completely consistent history and unbroken chain of

judicial precedents, but there is also absent any com-

pelling demand of the existing social order for the vin-

dication of fundamental constitutional rights, such as

existed in those historic cases.

Solidly grounded in legislative history and judicial

precedent, religious tax exemptions also draw firm con-

stitutional support from a diversified array of Church-

State decisions by this Court. In interpreting the religious

guarantees of the First and Fourteenth Amendments,

the Court has demonstrated a perennial concern to re-

strict the government to secular activities and to protect

the religious freedom of individuals and institutions. The

New York type of exemption makes an enormous con-

tribution precisely to the secularity of government and

to the religious liberty of all citizens and organizations.

Appellant argues that the “no aid” language of the

Everson case, 330 U.S. 1, 15-16 (1947), invalidates reli-

gious property tax exemptions. Appellant’s argument,

however, takes no cognizance of the rest of the Everson

opinion, of the decision actually reached in the Everson

case, or of the other Church-State decisions by this Court.

Appellant has attempted what the Court never intended:

the substitution of the “‘no aid” language for the reli-

gious guarantees of the First and Fourteenth Amend-

ment.

VI.

Everson was decided in 1947; School District of Abing-

ton Township v. Schempp, 374 U.S. 203, was decided in

1963. In Schempp, the Court repeated the “no aid”

language of Everson and interpreted it as meaning that

“to withstand the strictures of the Establishment Clause

there must be a secular legislative purpose and a primary

effect that neither advances nor inhibits religion.”” 374

U.S. at 222.

A. Measured by the Schempp test, the New York

type of exemption at issue in this case fully satisfies the

requirements of the Establishment Clause. In applying

the test, two types of religious organizations must be

Snr

distinguished: those that are exclusively concerned with

divine worship, and those that also engage in “service

activities,” such as caring for the sick and the poor.

Exemption of the second class of religious organizations

has the same secular purpose and effect as exemption

of nonprofit secular organizations that engage in the

same activities. If this class of religious organizations

were not given the same exemption treatment as its

secular counterpart, there would be a serious constitu-

tional issue of discrimination against religion.

With respect to religious organizations of the first

class (those engaged exclusively in divine worship), New

York intends and achieves at least three secular effects:

(1) fostering the objectives of the separation of Church

and State; (2) abstention from a chilling fiscal effect on

private nonprofit organizations engaged in activities out-

side the government’s authority; and (3) the sound

exercise of legislative discretion in choosing economi-

cally suitable subjects for taxation.

B. Although the New York exemption fully satisfies

the Schempp test, there are reasons to doubt that this

Court intended Schempp to apply in a literal way to

the area of the constitutionality of religious exemptions

from general secular laws. In granting such exemptions,

the State and Federal governments are dealing with reli-

gion as such. While the First and Fourteenth Amend-

ments severely limit the competence of government in

the field of religion, there are areas, such as the settle-

ment of church property disputes and apportioning the

incidence of taxation, where government must act in

a way that substantially affects religious interests. In

certain areas of unavoidable and substantial contacts

between religion and government, the Schempp require-

ment of a “secular purpose and primary secular effect”

does not provide a distinct guideline. Other constitu-

tional criteria of greater applicability can clearly be

found in this Court’s decisions precisely in the area of

religious exemptions from general secular laws.

VIL.

To be properly evaluated, religious exemptions must

be viewed within the context of the many facets of

American Church-State policy. One of the most striking

features of that policy is that, with respect to houses of

worship, the States have uniformly followed a positive

policy on exemptions and a negative policy on grants.

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, Aid to Paro-

chial Schools, 82 Harv. L. Rev. 1687, n. 16 (1969). In

addition to this basic symbolism, the dual policy of the

States is based on the fundamentally different political

and financial effects of exemptions and grants, and is

fully conformed to the dual constitutional guarantees of

No Establishment and Free Exercise.

In approaching a modern constitutional analysis of

religious tax exemptions of the New York type, the

Court will find valuable guidance in its earlier decisions

in Jones v. Opelika, 316 U.S. 584 (1942), reversed on

rehearing 319 U.S. 104 (1943); Murdock v. Pennsyl-

vania, 319 U.S. 105 (1943); and Follett v. Town of ©

McCormick, 321 U.S. 573 (1944). These three cases

fully establish the doctrine that government cannot

impose license taxes on religious activities, because such

taxes operate as a prior restraint on First Amendment

guarantees and could lead to a crushing financial burden

on the free exercise of religion.

Jones, Murdock and Follett did not, of course, settle

the precise issue before the Court in this case: the per-

missibility of exempting houses of worship from prop-

erty taxes. Neither, however, did Jones, Murdock and

Follett raise any question about the propriety of such

exemptions.

It is also significant that in a number of other recent

decisions, not concerned with taxation, this Court has

not hesitated to recognize that the First and Fourteenth

Amendments support, and sometimes even require, reli-

gious exemptions from general secular laws. In Board

of Education v. Barnette, 319 U.S. 642 (1943), the

Court held that the children of Jehovah’s Witnesses had

to be exempted from saluting the flag as part of their

public school activities. In Zorach v. Clauson, 343 US.

306 (1952), the Court sustained a statute permitting

students to be excused from part of their regular public

school attendance in order to attend religious instruc-

tion classes. In the Sunday Closing Law Cases, 366 U.S.

420, 582, 599, 617 (1961), the Court stated that reli-

gious exemptions might be the wiser course, but that

they were not mandatory. One year later, in Arlan’s

Dept. Store v. Kentucky, 371 U.S. 218 (1962), the

Court dismissed, for want of a substantial federal ques-

tion, an appeal against a Sunday closing law that specifi-

cally exempted from its penal provisions those who

worship on a different day than Sunday. In Sherbert

v. Verner, 374 U.S. 398 (1963), South Carolina was

compelled to exempt a Seventh Day Adventist from

one of the provisions of its unemployment compensa-

tion laws. Indeed, although School District of Abington

Township v. Schempp, 374 U.S. 203 (1963), held that

governmental sponsorship of religious exercises in the

public schools was inherently unconstitutional and there-

fore could not be saved by exemption provisions for dis-

senters, there is no case in which this Court has ever held

a religious exemption from a general secular law uncon-

stitutional.

It is clear from this survey of the Court’s recent

Church-State decisions that religious exemptions are not

inherently suspect. Quite to the contrary, they are an

extremely important part of the American heritage of

religious liberty.

With particular reference to the New York type of

property tax exemption, there are two fundamental

constitutional values that justify the permissibility of

the legislative policy: maximizing the fiscal separation

of Church and State, and minimizing State interference

with the free exercise of religion.

If the States were compelled to tax houses of

worship, they would have to assess their secular value

and enforce collection of the tax. Moreover, the smaller

and poorer churches, especially those in rural areas and

center-city locations, might well find the burden of tax-

ation extremely onerous.

In the last analysis, appellant’s challenge to the New

York type of exemption is not based on constitutional

arguments, but on the supposed “burden” that the

exemption places on him and on the conflict between

appellant’s conscience and the legislative policy. The

Constitution, however, does not require that every piece

of property be taxed, just as it does not guarantee that

every taxpayer will be taxed equally. The benefits to

society at large from the policy of exempting houses

of worship, in common with a wide variety of other

private, voluntary, nonprofit organizations, from the

property tax more than justify whatever burdens result

to the subjects that the legislature has chosen for

taxation.

From the very beginning, we have sought to accom-

modate our laws so that every citizen could live in as

much harmony as possible with his conscience and his

government. In a Nation as religiously diverse as our

own, however, it is not possible to give every citizen’s

conscience a right of veto over important public poli-

cies. Appellant demonstrates no constitutional injury

merely by asserting that he is in conscientious disagree-

ment with the government.

History, judicial precedent, and current constitutional

analysis combine to support tax exemptions of the New

York type as a rationally conceived and deep-seated

policy. Appellant has provided no basis for this Court

to declare that policy unconstitutional.

VIII.

Constitutional considerations apart, the taxation of

houses of worship would produce practical conse-

quences that would have a significantly adverse impact

upon the State, the Church and society as a whole.

A. If the States are held to be barred on constitu-

tional grounds from permitting tax exemption for

houses of worship, there will be no net financial gain,

but perhaps a loss, to the State, and there also will

ensue a substantial curtailment of valuable public bene-

fit services conducted by the agencies of religious organ-

izations, a slack which the State will have to take up

itself.

Critics have assigned financial reasons in urging that

the practice of voluntary tax exemptions for church

properties be discontinued. However, it “is very diffi-

cult to make out a convincing factual case for elimi-

nating religious tax exemptions . . . on the basfs of the

existing data.” Paulsen, supra. So far as New York

City is concerned, the statistics show that the total

amount of religious property which is tax exempt in

that city represents only 4.9% of the total tax exempt

property and that, for example, exemptions for feder-

ally aided public housing alone in New York City

exceeded the religious property exemption by $13

million.

In addition to financial considerations, significant

burdens would be thrown upon the State, if, as a result

of the elimination of tax exemptions, the churches

and their affiliated institutions were forced to reduce

the public benefit activity which they now conduct.

Murray v. Comptroller of the Treasury, 241 Md. 383,

401, 216 A.2d 897, 907 (1966), cert. den. 385 U.S. 816

(1966).

“The exemption of property from taxation is a ques-

tion of policy and not of power.” State of Ohio v.

Knopp, 57 U.S. 369, 384 (1853). It cannot be fairly

maintained, therefore, that the exemptions challenged

in this litigation have no reasonable relationship to the

achievement and protection of legitimate secular con-

cerns of the State.

SP Me aE

B. It is also self evident that, if church properties

must be taxed, there will have to be some retrenchment

in activities conducted by the churches in order to bear

the increased economic burden thus thrust upon them.

Undoubtedly, curtailment of social welfare services

currently performed by the churches will result. To the

extent that a church must reduce the scope and tempo

of its good works, it is pro tanto less a “religious”

organization that it was before.

C. Tax exemptions have played an important part in

keeping the complex social structure of our Country in

balance. Repudiation by the Court of this longstanding,

most deliberate and most cherished tax exemption

would inevitably weaken that structure and cannot be

justified on the basis of any compelling constitutional

reasons advanced in this case.

ARGUMENT

The Constitutional Issue Has Not

Been Properly Presented

There are compelling reasons supporting the correct-

ness of the decision challenged on this appeal. But

whatever may be the Court’s views on the merits of the

case, there can be no dispute about the magnitude of the

constitutional issues which the appellant has attempted

to raise. Because of the importance of those issues, the

amicus respectfully suggests that this Court first consider

whether, in the light of the extremely barren record

made in the courts below, this case is truly a proper

vehicle for their disposition at this time, especially in

view of the far-reaching consequences which will fol-

low a decision on the merits.

The Court often has admonished that it will not decide

important constitutional questions, however appealing,

on the basis of an inadequate or amorphous record.!

Very recently, four members of this Court declined an

opportunity in Powell v. Texas? to determine that the

Cruel and Unusual Punishment Clause of the Eighth

Amendment, as now incorporated in the Fourteenth

Amendment, barred conviction of a chronic alcoholic

for the crime of public drunkenness. As in Powell,

supra, the record in the present case “‘is utterly inade-

‘Ellis v. Dixon, 349 U.S. 458, 462 (1955) (record inadequate

to support a determination of claims that rights of speech, as-

sembly and equal protection of the laws were denied by state

action); Wolfe v. North Carolina, 364 U.S. 177, 194 (1960) (claim

of racial discrimination on the part of a state agency declined).

2392 U.S. 514, 521 (1968).

quate tc permit the sort of informed and responsible

adjudication which alone can support the announce-

ment of an important and wide-ranging new constitvu-

tional principle.””®

A reading of the abbreviated appendix filed in this

Court reveals the sparseness of the record brought here.

It also shows that the plaintiff filed a 2% page brief

in the New York Court of Appeals (A. 38). In this

Court, appellant’s brief on the merits reaches 8 pages.

The section devoted to argument consists primarily of

2% pages of quotations, without discussion, from the

Court’s opinion in Everson v. Board of Education, 330

U.S. 1 (1947).4

More importantly, there is no evidence in this record

concerning the amount of church-held real estate ex-

37d. at $21.

*Missing from the record are any facts as to: the size and

nature of the property owned by the plaintiff; its assessed valua-

tion; the tax paid on it; when he acquired it; and his purpose

in acquiring it. The record also is devoid of evidence that appel-

lant’s real estate taxes have been, are being, or will be, increased

because of the existence of the particular exemptions challenged

in his suit. In this connection the New York Times reports that

the appellant’s property has an assessed valuation of $100, is

taxed at $5.24 a year by the City of New York, and was pur-

chased by Mr. Walz for $25 in June 1967, the month he initiated

the suit which is now before this Court on appeal. New York

Times, June 20, 1969, pp. 1, 35. The record indicates that the

deed of purchase was executed on May 20, 1967 (A. 15) and

was recorded on June 19, 1967 (A. 16), five days after plaintiff

filed his action in the New York Supreme Court (A. 4). The

Times report, of course, may or may not be accurate. The point

is simply that in these respects, as well as in the others stated

above, the record is barren.

empted from taxation in New York City and in New

York State by virtue of the constitutional and statutory

provisions challenged in this litigation; the value of such

church property and its relationship to the total of as-

sessed valuation of real property subject to taxation; the

relationship of exempted church property to the total of

real property exempted; the financial impact on churches

if houses of worship are to be taxed on the same basis as

other real estate; and the nature and variety of, and

the costs of maintaining, the social welfare, education,

charity, hospital and medical assistance, and other

related public welfare activities carried on by the church

organizations whose real estate is exempted by virtue of

the provisions of New York law involved in this litiga-

tion.

The appellant’s standing to bring his suit is not chal-

lenged. However, the extremely skimpy record, the

paucity of legal analysis or argument offered on behalf

of the appellant, and the absence of allegation or proof

that his own taxes would actually be lower if exemptions

were abolished combine to suggest that on the merits the

appellant has not demonstrated that the tax exemption

practices of New York City adversely affect in any way

his own constitutional rights. Flast v. Cohen undoubted-

ly means that taxpayers have the right to raise constitu-

tional questions about the validity of tax laws under the

Establishment Clause. Flast, however, does not mean

that every taxpayer will win every case he brings, or that

every taxpayer properly makes out his case merely by

proving that he is a taxpayer. The appellant has intro-

duced no evidence whatever of personal or public hurt.

5Cf. Flast v. Cohen, 392 U.S. 83 (1968).

He has not even attempted to show that he is con-

strained- in the exercise of his own religion, or that the

tax exemption costs the State more than the State gains

from the welfare services (as distinguished from worship

and preaching) rendered to the public by religious organi-

zations. Compare Bittker, The Case of the Fictitious

Taxpayer: The Federal Taxpayer's Suit Twenty Years

After Flast v. Cohen, 36 U. Chi. L. Rev. 364 (1969),

with Davis, The Case of the Real Taxpayer: A Reply To

Professor Bittker, 36 U. Chi. L. Rev. 375 (1969).

Certainly, the important issue which the appellant

asks the Court to decide merits a more illuminating

record than the one out of which this appeal emerges.

That record “hardly reflects the sharp legal and eviden-

tiary clash between fully prepared adversary litigants

which is traditionally expected in major constitutional

cases.” Powell v. Texas, supra, at 522. As in Kim-

brough v. United States, 364 U.S. 661, it can be fairly

said that despite this Court’s notation of probable juris-

diction, “a more thorough consideration of the record

than . . . [may have been previously afforded] .. .”

might justify the conclusion that the highly important

and complex constitutional question which appellant

presses upon the Court—both in terms of its enormous

economic, political and social impact and its significance

in the orderly development of constitutional doctrine

in the State-Church field—‘“‘is not presented with suffici-

ent clarity in this case.”

The substantial omissions from the record strongly

suggest that the context of this litigation and the record

on which it rests are “‘too fragile a foundation for indulg-

ing in constitutional adjudication.”” Poe v. Ullman, 367

U.S. 497, 501 (1961). The nature and importance of

the constitutional issues which the Court is called upon

to take up in this case deserve, we believe, a firmer

adjudicatory base from which to proceed to their ulti-

mate disposition and the possible wide-ranging conse-

quences which might flow from that disposition. “The

best teaching of this Court’s experience admonishes us

not to entertain constitutional questions in advance of

the strictest necessity.”’ Parker v. County of Los Angeles,

338 U.S. 327, 333 (1949); Poe v. Ullman, supra at 503.

For these reasons, unless the Court is disposed to

follow the unbroken precedent of history and of all the

courts, including this Court, and affirm the decision of

the Court of Appeals of New York, we urge that the

Court vacate its order of June 16, 1969 noting probable

jurisdiction in this case and grant appellee’s earlier

motion to dismiss the appeal for want of a properly

presented federal question.

Il.

The Precise Constitutional Issue

To Be Decided

This case presents an important but narrow issue. The

question is whether the Fourteenth Amendment pro-

hibits the people of a State, or a State legislature, from

choosing to exempt from taxes “real property owned by

a corporation or association organized exclusively for . . .

religious . . . purposes . . . and used exclusively” for such

purposes.© At the outset, it is important to stress that

the issue is not one of whether the tax exemption in

°N. Y. Const., Art. 16, Sec. 1; Sec. 420, Subd. 1, Real Property

Tax Law of New York.

faced with determining the validity of the income and

estate tax deductions permitted those who contribute or

donate money or property to religious organizations.

The precise issue presented in this case, however,

undoubtedly does bear upon, and could well determine,

the constitutionality of all exemptions voluntarily granted

religious organizations from various income, sales, estate,

excise taxes and the like.

In summary, the issue is the constitutionality of a

legislatively afforded exemption (a) of property owned

by a nonprofit religious organization, (b) used exclusively

for religious purposes, (c) common to all religious organi-

zations, and (d) shared with a great number of other non-

profit, charitable and educational organizations. In

particular, the issue concerns whether a State may, if it

so wishes, exempt houses of religious worship from the

general real property tax.

Il.

America’s Undeviating Historical Policy and Practice

Of Exempting Religious Property from Taxation.

A. The Important Place of History in Constitutional

Adjudication. The amicus believes that the unswerving

historical acceptance of the legality and propriety of real

property tax exemptions for church properties in this

Country since its formation in 1787 up to the present

amicus does not defend exemptions from taxation. accorded

church properties used or operated for commercial purposes and

has so advised the Congress and the public. Joint Statement of

the National Council of Churches and the United States Catholic

Conference, Hearings on H.R. 13270 (The Tax Reform Act of

1969) before the Senate Committee on Finance, 91st Cong., Ist

Sess., 83 (May 2, 1969) (unofficial print).

time constitutes an unusually compelling argument in

support of the constitutionality of such exemptions.

Their long-continued existence and universal acceptance,

unlike virtually any practice the constitutionality of

which has been reviewed by this Court, is a classic illus-

tration of Mr. Justice Holmes’ famous observation that:

“The life of the law has not been logic; it has been

experience.”? And so it is with great constitutional

provisions. In McGowan vy. Maryland,’© this Court

found “the place of Sunday Closing Laws in the First —

Amendment’s history both enlightening and _ persua-

sive.”'' The evidence “of the place” of tax exemptions

for religious property “in the First Amendment’s his-

tory” is, we believe, even more “enlightening and per-

suasive” in demonstrating that there is nothing constitu-

tionally incompatible between tax exemption and the

requirements of that great Amendment. It is undoubt-

edly true that a constitutional question should not be

regarded as settled until it is settled right, as Mr. Justice

Brandeis once put it. Nevertheless, equal wisdom is

reflected in the statement of his famous colleague, Mr.

Justice Holmes, that: “If a thing has been practiced by

common consent for two hundred years, it will need a

strong case for the Fourteenth Amendment to affect

it.”'2, As we now show, tax exemptions for church

property have been “practiced by common consent for

®Holmes, The Common Law 1 (1945).

10366 U.S. 420 (1961).

11366 U.S. at 440; see also Reynolds v. United States, 98

U.S. 145, 165 (1878).

12 Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922).

_w——

two hundred years.”” The indisputable historical fact is

that from the time of the formation of the Republic

the Federal and State governments have chosen to afford

houses of religious worship exemption from property

ation. That unbroken constitutional tradition should

Mow be immutably prohibited by this Court.

B. Religious Tax Exemptions Existed in the Earliest

Days of the Nation. We begin the story by examining

the practices prevailing in the original States at the time

the Constitution was adopted in 1789. In point of fact,

however, the American practice of exempting religious

property existed in colonial days, a time when the estab-

lished churches were regarded as agencies of the state or

town.’? There is historical evidence that, even in the

days when the established church was considered as an

instrument or agency of government, houses of worship

maintained by other churches which were not part of the

establishment were also, by practice, not taxed.'* Never-

theless, the amicus takes as its starting point in setting

'3Pfeffer, Church, State and Freedom 183 (1953). As the

author of that work notes: “Tax exemption of church property

is probably as ancient as taxation itself . . . [and] dates back

at least to early Biblical days.” See also Antieau, Carroll and

Burke, Religion Under the State Constitutions 121 (1965), and

3 Stokes, Church and State In the United States 418 (1950).

Stimson, The Development of Tax Exemption In South

Carolina, 4 S.C.L.Q. 396, 400 (1952); Van Alstyne, Tax Exemp-

tions of Church Property, 20 Ohio St. LJ. 461, 462 (1959).

As a Connecticut court once said, the principle of exempting

the pr->erty of religious institutions “has been inseparably inter-

woven with the structure of government and the habits of our

people, since 1638. . . .” Yale v. Town of New Haven, 71 Conn.

316, 332, 42 A. 87, 92 (1899).

out the history of religious tax exemptions in the United

States the adoption of the Constitution and the ratifica-

tion of the First Amendment in 1791, for it is the Con-

stitution and specifically the religion clauses of that

Amendment from which this Court must draw its answer

to the issue which appellant urges upon it for decision.

The Constitution itself, while conferring the broadest

powers of taxation on the Congress, does not refer to

tax exemptions. Nor was there any discussion of the

practice in the Constitutional Convention, in the peti-

tions requesting enactment of the Bill of Rights, or in

the debates on the Bill of Rights.'5 Similarly, the

debates in the State conventions preceding ratification

of the Constitution produced no informative discussion

regarding tax exemptions of church properties.

Following the adoption of the new Constitution and

ratification in 1791 of the Bill of Rights, most of the

original 13 States soon passed statutes or adopted con-

stitutional provisions specifically exempting religious

property from taxation.'© These statutory exemptions

followed a general pattern and collectively establish the

early origins of State exemptions in this area during a

period of time following close upon the adoption of the

1S Antieau, Carroll and Burke, supra note 13, at 122; Zollman,

Tax Exemptions of American Church Property, 14 Mich. L.Rev.

646 (1916); O’Brien, Government and Religion, 5 Vill. L.Rev.

335, 347 (1960).

‘©The early tax exemption statutes adopted in the original 13

States are set out in Appendix A of the Supplement filed with

this brief.

First Amendment. The early history of the New York

policy in affording the real property exemption is dis-

cussed in the briefs filed by the appellee and the State of

New York as amicus curiae. However, to support the

point in more detail, the amicus in this brief has singled

out for fuller treatment the origins and developments of

tax exemption for religious property in four other repre-

sentative States of the original thirteen. These are Vir-

ginia, Massachusetts, Maryland and South Carolina.!7

To them we have added the early Federal experience in

the newly created seat of the Government, the District

of Columbia. res

1. Virginia. This Court is most familiar with the fact

that direct antecedents of the First Amendment may be

traced to the early Virginia experience in forging the

foundations of religious liberty in that State, especially

the part played in that effort by Thomas Jefferson and

James Madison.'® The Virginia experience with religious

17In Massachusetts as in the other New England states, the

local congregation was the basic church, whereas in Virginia, Mary-

land and the Southern States, the parent church or upper hier-

archical body was usually considered the basic religious entity.

Note, Judicial Intervention In Church Property Disputes—Some

Constitutional Considerations, 74 Yale LJ. 1113, 1115 (1965).

Despite the difference in official attitude regarding who or what

was really the church, all of the original States early provided

tax exemptions for church property, whatever body had formal

title to, or was entitled to prescribe the use of, church property.

See Appendix A in the Supplement accompanying the brief of

this amicus.

'*McGowan v. Maryland, 366 U.S. 420, 437-440 (1961);

Everson v. Board of Education, 330 U.S. 1, 33-41 (1947) (Rut-

ledge, J. dissenting). .

tax exemptions is, therefore, especially pertinent in con-

struing the reach, if any, that the First Amendment,

through the Fourteenth, may have to such exemptions.

The Virginia story is clear and persuasive. In January

of 1786, the Virginia General Assembly, largely under

the leadership of James Madison, then one of its distin-

guished members, adopted a bill, originally drafted by

Thomas Jefferson, entitled “An Act For Establishing

Religious Freedom”.'? The part which Madison played

in that effort, as well as his concomitant exertions in the

struggle against the Assessment Bill, which collapsed in

committee in December 1785, are set out in detail in

Mr. Justice Rutledge’s dissenting opinion in Everson,

supra. The sweep of the historic Bill For Establishing

Religious Freedom, authored by Jefferson, sponsored by

Madison, and adopted by the Virginia General Assembly

in 1786, forbade the establishment of religion and

secured its free exercise in Virginia.

Yet, even with the passage of the Bill For Establishing

Religious Freedom and the defeat of the Assessment Bill,

the fight was not completely over in Virginia. A number

of statutes remained on the books, dating back to colon-

ial days in most cases, which by inference or reference

recognized the Church of England as an “established

church”. A statute to eliminate these vestigial statutory

provisions was adopted by the Virginia General Assembly

on January 24, 1799. The statute was entitled “‘An

Act To Repeal Certain Acts and To Declare the Con-

struction of the Bill of Rights and Constitution Con-

cerning Religion’”.”° Its purpose clearly was the final

19Hennings, Virginia Statutes At Large 84-86 (1785-1786).

Virginia Statutes At Large, Shepherd’s Continuation of

Henning 149 (1796-1803).

elimination of all the remaining vestiges of religious

establishment in Virginia.

Prior to 1800, the taxing statutes of Virginia had not

exempted any classes of property from tax liability.

However, on January 23, 1800, with James Madison

again sitting as a leading member of the Virginia General

Assembly,?! that body enacted a taxing statute which

included the following provision:

“Provided, That no taxes shall be collected on lands,

lots, or other properties belonging to this Common-

wealth or to any county, town, houses for divine

worship, or seminary of learning.” (Italics sup-

plied). 3

Thus, almost a year to the day when Virginia had com-

pleted its final mopping up operations in the fight for

disestablishment, it saw fit to exempt houses of religious

worship from taxation. The birthplace of modern religi-

ous liberty in America apparently saw nothing incom-

patible between complete disestablishment and tax ex-

emptions for religious properties.

A final note might be added to the Virginia story.

That Commonwealth has always been one of the States

most strict in maintaining the separation of Church and

State. For example, a provision of its constitution to this

21Swem and Williams, A Register of the General Assembly

of Virginia, 1776-1918, 53 (Richmond, 1918). Madison was

excused from further attendance at the 1800 session of the House

of Delegates after January 22, 1800. However, the statute in

question passed the House on January 20, 1800; Journal of the

House of Delegates of the Commonwealth of Virginia 75, 98

(1799-1800).

Virginia Statutes At Large, Shepherd’s Continuation of

Henning 200 (1796-1803).

day prohibits the incorporation of religious societies.

However, that same constitution continues the tradition

of tax exemption for religious property which had its

statutory origins in 1800.*

2. Massachusetts. Massachusetts was one of the first

of the original States to embody authorization for tax

exemption for churches within its Constitution. This it

did in 1780. The original language has been retained in

subsequent amendments and revisions of the Constitu-

tion.75

The phraseology is somewhat antiquated. The legis-

lature is directed “‘in all future periods” of the Common-

wealth “to cherish literature, sciences and other forms

of learning and all seminaries of them.” Further, the

future legislators were implored to “encourage” both

private societies and public institutions which had as

their objectives an inculcation of the virtues of “Shuman-

ity and general benevolence . . . charity, industry, and

frugality, honesty and generous sentiments among the

people.”

Pursuant to this constitutional directive, which has

not been changed in substance since 1780, the legis-

3Va. Const., Sec. 59.

*Tbid, Sec. 183(e). Moreover, the Supreme Court of Virginia

has construed the exemptions accorded church properties liberally,

holding, for example, as to such property, in contrast to other

types of exemptions, that “exemption is the rule and taxation

the exception” under “the policy of the State. . . .” Common-

wealth v. Lynchburg Y.M.C.A., 115 Va. 745, 747, 80 S.E. 589,

590 (1914).

25Mass. Const. (rearranged in 1919 with amendments), Chap.

5, Sec. 2 (1780). See p. 20 of the Supplement filed with this brief.

lature of Massachusetts has provided that certain classes

of property used by churches, schools and charity be

exempt. “Houses of worship” are exempt along with

the pews and other furnishings.?°

The history of this exemption in Massachusetts is

well set forth in Judge Barker’s dissenting opinion in

All Saints Parish v. Brookline, 178 Mass. 404, 59 N.E.

1003 (1901).?”

“For a period of 216 years the doctrine that

the churchyard and the church were public works

was of itself sufficient to secure for them an un-

broken exemption from taxation. Until April 1,

1836, there was no statutory exemption of land

or building. Yet neither were taxed and for the

same reason which, without any statutory declara-

rations to this day has exempted courthouses, jails,

houses of correction, schoolhouses and townhouses

and city halls, with their grounds, and also high-

ways, canals, and lands and structures within the

location of railroads. The only statutory provisions

| relating, though remotely to the subject, were those

which from the year 1799 exempted from taxation,

except for parochial purposes, pews and houses of

public worship, although the pews were the pri-

vate property of individuals, which they could lease,

mortgage, sell and convey or devise by will at their

pleasure, and which could be taken by legal process

for the debts of the individual owner.”’®

Continuing, Judge Barker stated, ‘““The revised Statutes

_ for the first time made a statutory provision exempting

Mass. Code L. A., Ch. 59, Sec. 5, Cl. 11.

"The dissent related only to the coverage of the exemption

in that case; there was no disagreement regarding its legality.

28178 Mass. at 412, 59 NE. at 1005.

houses of religious worship from taxation. Rev. St. C.

7, Article 5, Cl. 5.”® He then proceeds to trace the

statutory development of the exemption laws for houses

of religious worship. These references and the subse-

quent history of the statutory provisions pertaining to

exemptions only reinforce the unbroken nature of the

basic exemption accorded to houses of worship.

In general, the exemption accorded houses of worship

has been considered to be an outgrowth of achieving

the lofty aims set forth in the constitutional language

which, in effect, is a mandate to the legislature of the

state of Massachusetts. As eminent commentators have

noted: ““One means the framers of this language obvious-

ly had in mind by way of achieving these lofty aims

was to excuse them, whenever possible, from the burden

of taxation.” [Italics supplied]

3. Maryland. George Calvert founded the colony of

Maryland in 1632 in reaction to the widespread religious

persecutions in England. Thus, Calvert had as a funda-

mental principle the theory that government should be

truly tolerant of the religious views of its subjects.

Maryland’s first Constitution was adopted in 1776,

thirteen years before the effective date of the Federal

Constitution and fifteen years before the Bill of Rights.

The 1776 Maryland Constitution included a Declaration

of Rights which contained in Article 33 (now Article

36) the following:

1. . wherefore no person ought by any law

to be molested in his person or estate on account

Ibid.

3° antieau, Carroll and Burke, supra note 13, at 126.

of his religious persuasion or profession, or for his

religious practice; . . . nor ought any person to

[sic] be compelled to frequent or maintain or con-

tribute, unless on contract, to maintain any particu-

lar place of worship or any particular ministry;”

Article 34 of the Declaration of Rights (now Article

38) then said:

“That every gift, sale or devise of land to any

Minister, Public Teacher or Preacher of the Gospel,

as such, or to any Religious Sect, Order or Denomi-

nation, . . . without the leave of the Legislature,

shall be void;”

Twenty-two years later, the first ad valorem property

tax statute was enacted. On January 20, 1798, the Mary-

land General Assembly passed a bill entitled “An Act

for the valuation of real and personal property within

this State.” That statute began with the following pro-

vision:

“All real and personal property in this state,

except property belonging to this state, or the

United States, houses for public worship, burying-

grounds, or property belonging to any county, or

to any college,.or to any county school . . . shall

be valued . . . and shall be chargeable according

to such valuation with the public assessment.”

[Italics supplied] *"

It is apparent, therefore, that the Maryland General

Assembly of 1797 saw no inconsistency between the

exemption of “houses for public worship” and the

disestablishment provisions of Article 33 or the mort-

main provision of Article 34 of the Declaration of Rights

contained in Maryland’s Constitution of 1776, then in

effect.

3 Laws of 1797, Ch. 89, Kilty’s Laws of Maryland (1785-1799).

Maryland has continuously retained the exemption

for houses of public worship in its tax law since 1798,*?

In 1966, the constitutional validity of Maryland’s 170-

year-old exemption was sustained by the Maryland Court

of Appeals.** In that year, the same Court adopted

a most restrictive interpretation of the First Amendment

in a case concerning state aid to church-related educa-

tional institutions.*

4. South Carolina. An examination of the early prac-

tices and statutes of South Carolina indicates that the

Episcopal Church, being the state or established church

of the Colony, was considered to be a public institution

and serves to explain the tax exempt status which the

Episcopal Church enjoyed along with other public insti-

tutions. An Act of 1704 provided for the construction

of church buildings for each of the ten parishes in which

the Colony was divided. The public treasury bore the

cost over and above donations; a specified sum was

provided for ministerial salaries.**

In 1739, the Colonial Legislature passed the first

statutory provision for the exemption of church property

other than that of the established church. The applicable

portion of the statute reads:

**. . . lands whereon any churches or other build-

ings for divine worship or for free schools are

2 article 81, Sec. (4), Ann. Code of Maryland (1965).

Murray v. Comptroller, 241 Md. 383, 216 A.2d 897 (1966),

cert. den., 385 U.S. 816 (1966).

*Horace Mann League v. Board of Public Works, 242 Md.

645, 220 A.2d 551 (1966), cert. den., 385 U.S. 97 (1966).

352 S.C. Stat. at L. 236-246.

erected or built and lands appurtenant to such

churches and buildings and free schools. . . .”%

One commentator has observed in discussing this ex-

emption:

“In granting this favor to churches and free

schools, the Colonists were expressing the tradi-

tional belief that public services were performed

by such institutions and their work should be en-

couraged. An established church being is existence

whose function must have been considered properly

governmental, it is easy to understand the attitude

that other churches also were performing govern-

mental functions and should not be taxed.”37

A parallel development was the provision in the Rev-

enue Law of 1760, which taxed “‘all profits of all facul-

ties, professions (clergy excepted), factorage and handi-

craft trades.” Stimson observes that the exemption was

a means of increasing the real salaries of clergymen with-

out directly dipping into the public Treasury.**

With the advent of statehood, the established church

was done away with and the “Christian Protestant Reli-

gion” was declared to be the established religion of the

state.

The Constitution of 1790 sought to put all churches

on an even footing, except that the Episcopal Church

retained the property that had been given it by the

public while it had been the established church. That

same constitution continued the rights and privileges

367d, at 255-256.

Stimson, The Development of Tax Exemption in South Caro-

lina, 4 S.C.L.Q. 396, 400 (1952).

38 bid.

(including tax exemption) of churches, religious societies

and educational institutions as if “this Constitution had

not been altered.’’*?

5. District of Columbia. Another relevant chapter in

the history of tax exemptions during the days of the

Country’s beginnings is furnished by the District of Co-

lumbia. On October 6, 1802, when Thomas Jefferson

was President of the United States, the City Council of

the District of Columbia adopted a taxing ordinance

which, however, exempted, inter alia, “houses for public

worship.”*° In 1804, with Thomas Jefferson still the

President, Congress amended the original Act under

which the City of Washington had been incorporated

and permitted the exemption to remain.*! The approval

of tax exemptions for church properties within a decade

of the ratification of the First Amendment and, unlike

the several States, within a territory which was subject

to its restrictions and during the Presidential tenure of

Thomas Jefferson, warrants the inference that the early

City Fathers, as well as the early Congresses, perceived

no conflict between a tax exemption for “houses for

public worship” and the requirements of the First

Amendment.

C. The Tradition of Religious Tax Exemptions Was

Continued In the Civil War Period and Afterwards. By

the time of the Civil War, most of the States had em-

bodied into law, either through constitutional provision

S.C. Const., Art. VIII, Sec. 2 (1790).

*® act of October 6, 1802, Bothwell’s Compilations of Laws

of Washington (1833).

“! act of February 24, 1804, Ch. 142, Sec. 254.

or by statute, or both, the universal practices of granting

tax exemptions for religious property and of restricting

direct grants to religious institutions. During these years

when the Congress imposed direct taxes (beginning with

the Act of July 14, 1798), it also uniformly exempted

properties which were exempt by State law. This fol-

lowed an earlier suggestion of Alexander Hamilton.*?

Congress was quite aware of the terms and scope of

the various State tax exemptions prior to the passage

of federal tax acts, since the Secretary of the Treasury

in 1796 filed with Congress a report containing a com-

pendium of the tax laws of each State, including the

exemptions then in effect.*°

After the Civil War had ended, Congress required the

Southern States, as a condition precedent for re-entry

to the Union, to rewrite their constitutions and submit

them for its scrutiny and approval.** While nothing was

said of tax exemptions for religious property during

the Congressional debates on the Fourteenth Amend-

ment, the same Reconstruction Congresses which had

initiated, drafted, debated and approved that Amend-

ment by 1870 had approved all of the redrawn constitu-

tions of the former States of the Confederacy. It is

significant that in the constitutions of five of these

States there was specific provision, either mandatory

“The Federalist, No. 36 (Hamilton).

431 American State Papers (Finance) 414 (1858).

“4 act of March 2, 1867, 14 Stat. 429; Act of June 25, 1868,

15 Stat. 73; see also Remarks of Thaddeus Stevens, Congressional

Globe, 49th Cong., 2d Sess., 2465 (1867).

or permissive in nature, for exemption of church prop-

erties.*5

In the decade beginning 1870, the Liberal League

initiated a movement to eliminate the exemptions af-

forded religious property.*® This movement apparently

reached its high water mark in 1875. In that year,

President Grant in his State of the Union message to

the Congress suggested a constitutional amendment to

declare State and Church “forever separate and distinct

. and that all church property . . . bear its own

proportion of taxation.”*? One week later, Representa-

tive Blaine of Maine submitted a proposed constitutional

amendment incorporating most of the propositions sug-

gested to the Congress in President Grant’s State of

the Union message. He did not, however, include Presi-

dent Grant’s proposal that tax exemptions for churches

be eliminated.** In view of Representative, later Senator,

Blaine’s acknowledged views in favor of the strictest

separation of State and Church, the silence of his amend-

ment on the point has special significance. It is clear

that the leaders of that day held the firm belief that

nothing in the Constitution prohibited religious tax

exemption.

45 ark. Const., Art. X, Sec. 2 (1868); N. C. Const., Art. V,

Sec. 5 (1868); S. C. Const., Art. IX, Sec. 1 (1868); La. Const.,

Art. 118 (1868); Fla. Const., Art. XIII, Sec. 1 (1868).

“Robertson, Should Churches Be Taxed? 73-74 (1968).

47 Ames, Proposed Amendments to the Constitution 277

(1897); Antieau, Carroll and Burke, Religion Under State Consti-

tutions, supra note 13, at 123.

484 Cong. Rec. 5190, Part 6 (1875).

President Grant’s suggestion had little effect on suc-

ceeding Congresses. For example, the constitutions of

10 States admitted to the Union after the adoption

of the Fourteenth Amendment contained provisions for

limiting the use of public funds in aiding religion but,

at the same time, all had provisions for some variety

of tax exemption for church properties used for religious

purposes.*? The enabling acts which the Congress passed

in admitting each of these States contained a specific

proviso that the constitution of a State seeking admission

must not be “repugnant” to the Constitution of the

United States. It is clear, therefore, that Congress never

seriously entertained the notion that the exemption of

church property from taxation offended, either in fact

or in spirit, fundamental provisions of the Bill of

Rights.*°

D. From the Blaine Amendment to the Present. While,

as we have stated, the Blaine Amendment never cleared

the Congress, the ideas that it incorporated did find

favor in a considerable number of the States, either

existing or newly admitted to the Union. However, the

catalyst which the Blaine Amendment provided the

States in adopting constitutional provisions that limited

“See Appendix B printed in the Supplement filed by the

amicus.

%In 1876, President Grant himself signed the enabling act

by which Colorado was admitted to the Union with a constitution

which expressly exempted from taxation lots and buildings “‘used

solely and exclusively for religious purposes.” Colo. Const., Art.

X, Sec. 5 (1876). He also signed two District of Columbia statutes,

which incorporated provisions affording tax exemptions for reli-

gious property, one in 1876 and another in 1877. 16 Stat. 153

(1876) and 17 Stat. 399 (1877).

the expenditures of public funds to aid religion, many

of them much more explicit and restrictive than the

First Amendment, did not induce them to eliminate

the constitutional or statutory authority which sanc-

tioned tax exemptions for ecclesiastical property. An

illustrative case demonstrates the point. The Constitution

of Iowa contains a provision which reads very closely

like the words of the First Amendment. It forbids laws

“respecting an establishment of religion or compelling

any person to pay .. . taxes .. . for building or repairing

places of worship or the maintenance of any minister

or ministry.”*' In Trustees of Griswold College v. State,

46 Ia. 275, 26 Am. Rep. 138 (1877), the Supreme Court

of Iowa held that tax exemptions granted by statute?

to religious related colleges did not violate the amend-

ment of the Iowa Constitution cited above. Said the

Iowa Supreme Court:

“The argument is, that exemption from taxation

of church property is the same thing as compelling

contribution to churches to the extent of the ex-

emption. We think the constitutional prohibition

extends to the levying of tithes, taxes, or other

rates for church purposes, and that it does not

include the exemption from taxation of such church

property as the legislature may think proper.”*?

5! Towa Const., Art. 3, Sec. 1 (1857).

52Towa Code Ann., Sec. 427.1(9) et seq.

5346 Iowa at 282. See also, Garrett Biblical Institute v. Elm-

hurst State Bank, 331 Ill. 308, 163 N.E. 1 (1928), in which

the Illinois Supreme Court held the exemption of the Institute

from taxation did not violate either the Illinois or the United

States Constitutions “either in spirit or letter. . . .” 331 Ill. at

318, 163 N.E. at 4.

Today, as in the beginning, every State in the Nation

and the District of Columbia exempts church properties,

at least those used for purposes of worship, from taxa-

on. Printed as Appendix B in the Supplement filed

with this brief is a detailed compilation of the constitu-

tional and statutory provisions of the various States

through which tax exemptions are provided for houses

of worship and related religious property. It shows that

at the present time the constitutions of 36 States con-

tain either a mandatory or permissive provision for the

exemption. In the remainder of the States the exemption

is provided by statute.**

E. The Favorable Congressional View of Religious Ex-

emptions. Until fairly late in our constitutional develop-

ment, the strictures of the First Amendment were

thought to bind only the Federal Government and not

the States. Therefore, any summary of the historical

treatment of religious tax exemptions would be deficient

unless it took into account the Congressional experience.

Here, the history, as in the case of the States, is one

of long-standing and unbroken approval of tax exemp-

tions for church property. The amicus has already dis-

cussed the early appearance of such exemptions in the

District of Columbia.*® To that can be added the case

of Gibbons v. District of Columbia, 116 U.S. 404 (1886),

*Constitutionality of Tax Benefits Accorded Religion, Note,

49 Col. L. Rev. 968-69 (1949); Van Alstyne, Tax Exemptions

of Church Property, 20 Ohio St. L. J. 461 (1959).

‘SSee also Van Alstyne, supra.

5°Supra, p. 40. See also the illustrative examples of early tariff

exemptions for religious property listed in Appendix D printed in

the Supplement.

involving an early Congressional exemption from taxa-

tion of properties used for purposes of religious wor-

ship.*”

In legislation passed by the Congress since the Civil

War, there has been a general policy of providing exemp-

tions and deductions for religious purposes. After the

reorganization of the District of Columbia, Congress

passed specific exemptions for houses of worship within

the District in the Acts of June 17, 1876, 16 Stat. 153,

and the Act of March 3, 1877, 16 Stat. 399. Similar

exemptions still exist in the District of Columbia to

this date.5* The ill-fated Federal Income Tax of 1894,5°

provided an exemption for religious institutions. The

exemptions were carried over in the income tax laws

enacted after the Sixteenth Amendment was adopted,

and the principle has been effected in other types of

revenue legislation, such as the estate and gift tax.

Additional tax exemptions currently afforded religious

organizations by Federal law are set out in Appendix C

of amicus’ Supplement.

F. The Ineluctable Conclusion from History. This

Court has often turned to relevant history in the adjudi-

cation of constitutional issues. In the sphere of the

First Amendment, it has emphasized history both to

strike down abridgements of the freedoms guaranteed

S’Discussed infra, p. 53.

5847 D.C. Code 801 a (1967).

928 Stat. 509 (1894).

1 R.C. (1954), Secs. 501 (c\(3), 2055 and 2522.

by that Amendment,®! and to uphold statutes challenged

under that great constitutional provision.®? Surely, the

Court will again find influential the lessons of the

history which bears on the issue now before it.: In con-

stitutional law, as elsewhere, “doctrine is illuminated by

history.” Kovacs v. Cooper, 336 U.S. 77, 95 (1949).

That history is undebatable. From the time the

Nation began, every State and Federal legislative body

that has taken the question up has come down on the

side of permitting tax exemption for church properties

used for religious purposes. The members of all those

legislatures took and were bound by, their oath or affir-

mation to support the Constitution as prescribed by

Article VI thereof. Their firm view of the constitutional-

ity of the practice is thus obvious. Moreover, unlike

other historical practices of much less ancient vintage,

such as Bible reading, prayers in public schools or the bus

transportation of parochial school students, which some

States permitted and other States denied, the history

of the permissibility of religious tax exemptions has

‘remained to the present time without a single adverse

judicial pronouncement with respect to its legality

,under State or Federal constitutional provisions.

Finally, as a learned commentator has conceded, the

religious tax exemptions sanctioned “‘during our history

... [have] not in fact begun a series of steps toward

®'Near v. Minnesota, 283 U.S. 697, 713 (1931) (“liberty of

the press as historically conceived and generated’’).

®2McGowan v. Maryland, 366 U.S. 420, 440 (1961) (“. . . we

find the place of Sunday Closing Laws in the First Amendment’s

history both enlightening and persuasive”’).

the establishment of religion.”®* Whatever efficacy in

terrorem arguments might have in other controversies

over the interpretation and reach of the Non-Establish-

ment Clause, in the light of the indisputable history of

religious tax exemptions, such arguments have no place

in the resolution of the question which the Court has

before it for decision.

We close the argument from history as we began it-

with a quotation from Mr. Justice Holmes: “Upon this

point a page of history is worth a volume of logic.”

Here, all the pages of the relevant history tell the same

story: there is nothing in the Non-Establishment Clause

or in the Fourteenth Amendment that was intended to

prohibit the universal practice of exempting church

properties from taxation.

IV.

The Case Precedents Unanimously Support

Tax Exemptions of Church Property

A. The Force of Precedent. In the preceding section

of this brief, the amicus appealed to the undeviating

history of the legislative practice of permitting tax

exemptions for church property as reason for not

holding such exemptions to be unconstitutional at this

late day. In the section which follows we “fortify [the

historical] principle with precedent.”®5 As Mr. Justice

Clark once said in another context:

Labor Legislation, 14 Law & Contemp. Probs. 120, 147 (1949).

®4New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).

®5Holmes, The Common Law, supra note 9, at 209.

“The fact that a practice is followed by a large

number of states is not conclusive in a decision as

to whether that practice accords with due process,

but it is plainly worth considering in determining

whether the practice ‘offends some principle of

justice so rooted in the traditions and conscience

of our people as to be ranked as fundamental.’ ” %

As we now show, not only does the practice of per-

mitting tax exemption for religious property exist in all

of the States, but that practice has been upheld as con-

stitutional by every court, State or Federal, including

this Court, that has ever passed upon the issue. Stare

decisis may have limitations when the doctrine is

invoked in the adjudication of constitutional questions,

and a “constitutional interpretation that is wrong should

not stand.” Connecticut General Life Ins. Co. v. Johnson,

303 U.S. 77, 85 (1938). Nevertheless, the accumulated

force of unanimous judicial opinion, consistently adhered

to by the courts of the Country, and voiced many times

from colonial days to the present, constitutes a formi-

dable basis from which to argue for the continued con-

stitutional permissibility of tax exemptions for church

properties.

B. The State and Lower Court Decisions Unani-

mously Support the Exemptions. A careful search of

the reported decisions from 1791 to the present con-

firms the conclusion reached in 1956 by the Supreme

Court of California, in one of the leading State court

decisions on the issue, that:

“No case has been found holding that the grant-

ing of such exemptions is contrary to State or

°°/ eland v. Oregon, 343 U.S. 790, 798 (1952).

Federal constitutional provisions prohibiting the

support or establishment of religion, and, when

the matter has been raised, the exemptions have

been upheld.”’®7

That was true in respect to the State court cases

decided before this Court’s landmark decision in Ever-

son v. Board of Education, 330 U.S. 1 (1947). Repre-

sentative cases are cited below.®* Similarly, the State

courts which have been called upon to take up the

issue of religious tax exemptions after this Court spoke

in Everson have continued to uphold tax exemptions

for church properties, finding nothing in the strict “wall

of separation” doctrine which the Court enunciated in

that case to require the elimination of such exemptions

because of the Non-Establishment Clause of the First

Amendment.®?

®7Lundberg v. County of Alameda, 46 Cal.2d 644, 298 P.2d

1, 7 (1956), app. dism. sub nom. Heisey v. County of Alameda

352 U.S. 921 (1956); see also General Finance Corp. v. Archetto,

93 RI. 392, 176 A.2d 73, 77 (1961), app. dism. 369 U.S. 423

(1962).

Orr v. Baker, 4 Ind. 86 (1853); State v. Collector of New Jersey,

24 NJ.L. 108, 120 (1853); Trustees of Griswold College v. Iowa,

supra note 53; State v. Alabama Educational Foundation, 231

Ala. 11, 163 S. 527 (1935); Trustees of First Methodist Epis-

copal Church v. City of Atlanta, 76 Ga. 181, 193 (1886); Rice

Co. v. Bishop Seabury Mission, 90 Minn. 92, 95 N.W. 882

(1903); Yale University v. Town of New Haven, 71 Conn. 316,

42 A. 87 (1899); St. Barbara's Church v. City of New York, 243

App. Div. 371, 277 N.Y. Supp. 538 (1935); Commonwealth v.

Y.M.C.A., 116 Ky. 711, 719, 76 S.W. 522 (1903); and Y.M.CA.

v. Douglas Co., 160 Neb. 642, 646, 83 N.W. 924, 926 (1900).

73 (1961), app. dism. 369 U.S. 423 (1962); Lundberg v. County

_—

The United States Court of Appeals for the District

of Columbia Circuit also had occasion to pass upon a

collateral aspect of the issue in an opinion written by

the present Chief Justice of this Court. The case

involved the question of whether the real property tax

exemption afforded religious organizations extended to

one which denied the existence of a supreme being. In

deciding that the exemption did cover such a religious

group, the court said:

“Congress in granting tax exemptions under this

statute like most of the states, was giving expres-

sion to a broad legislative purpose to grant support

to elements in the community regarded as good

for the community .... To construe exemptions

so strictly that unorthodox or minority forms of

worship would be denied the exemption benefits

granted to those conforming to the majority beliefs

might well raise constitutional issues.”’”°

The precise rationales upon which the State and lower

Federal courts unanimously arrived at the same conclu-

sion concerning the constitutionality of tax exemptions

for church property have varied. Some courts seem to

rest their holdings on the fact that the benefit received

by the religious denomination as a result of the tax

exemption was “incidental to the achievement of a public

of Alameda, 46 Cal.2d 644, 298 P.2d 1 (1956), app. dism. sub

“- Heisey v. County of Alameda 352 U.S. 921 (1956); Murray

of the Treasury, 241 Md. 383, 216 A.2d 897

(1966), cert. den. 385 U.S. 816 (1966); Fellowship of Humanity

v. County of Alameda, 153 Cal.2d 673, 315 P.2d 394, 408

(1957); Missionaries of Our Lady of La Salette v. Michaliski, 15

Wis.2d 593, 113 N.W.2d 593 (1955).

"Washington Ethical Society v. District of Columbia, 101

App. DC. 371, 373, 249 F.2d 127, 129 (1957).

purpose.” Lundberg v. County of Alameda, supra, at 7.

Other courts apparently drew their support from the

fact that the activities conducted by religious denomina-

tions, like the activities of other exempted organiza-

tions, represented programs which “are thought to be

in the public interest and welfare.” Washington Ethical

Society v. District of Columbia, supra, at 129. And still

others, obviously impressed with the antiquity and uni-

versality of the practice and its characteristic of State-

Church accommodation, wished to avoid “a rigid inter-

pretation of the constitutional guarantee that conflicts

with accepted habits of our people.” General Finance

Corp. v. Archetto, supra, at 78.

Whatever the exact bases of particular decisions, the

point is that every state and federal court that has ever

dealt with the issue from 1791 to the present day has

upheld the constitutionality, under State and Federal

constitutional provisions, of the traditional American

practice of affording exemptions from State taxation

for church properties. Like the lesson drawn from his-

tory,. the imposing array of State and lower Federal

court precedents supports the decision of the New York

courts in this case. Mr. Justice Cardozo once said that

the “power of precedent, when analyzed, is the power

of the beaten track.”7! Here, the beaten track marked

out by the precedents shows no detours, side roads, or

even aberrational departures in upholding tax exemp-

tions for churches.

C. The Precedents Sustaining Religious Tax Exemp-

tions in This Court. Prior to its decision in the Everson

71 Cardozo, Growth of the Law, 62 (1924).

case, this Court apparently had been presented with

only one opportunity to pass upon a religious tax

exemption within the context of the First Amend-

ment.72 In that case, the Court acknowledged in dicta

that in the exercise of the legislative power to classify

and to exempt, including the exemptions for church

buildings and grounds, “Congress, like any State legisla-

ture unrestricted by constitutional provisions, ray at its

discretion wholly exempt certain classes of property

from taxation, .. .”73 However, Gibbons v. District of

Columbia cannot fairly be regarded as a controlling

precedent for the proposition that religious tax exemp-

tions are not barred by the First Amendment.

During the pre-Everson period, also, the Court fre-

quently had before it cases raising the claim of unrea-

sonable classifications on the part of State taxing

authorities in alleged violation of the Equal Protection

Clause of the Fourteenth Amendment. In several of

these, the Court used the exemption for churches as an

example of a reasonable and nondiscriminatory method

of adjusting a system of taxation consistently with the

Equal Protection Clause. Perhaps the case most cited is

Bell’s Gap R. Company v. Pennsylvania, 134 U.S. 232

(1890). Mr. Justice Bradley stated for the Court:

“The provision in the Fourteenth Amendment

that no State shall deny to any person within its

jurisdiction the equal protection of the law was

"Gibbons v. District of Columbia, 116 U.S. 404 (1806). See

also Bishop of Nesqually v. Gibbon, 158 U.S. 155 (1895) where,

again in dicta, the Court made reference to the secular benefits

underlaying the “principle that exempts from taxation the prop-

erty of religious organizations,” 158 U.S. at 171.

73116 U.S. ai 408.

not intended to prevent a state from adjusting its

system of taxation in all proper and reasonable

ways. Jt may, if it chooses, exempt certain classes

of property from any taxes at all, such as churches,

libraries and the property of charitable institu-

tions.” [Italics supplied. ]

The Court, quoting Mr. Justice Bradley’s language, made

the same point in several other decisions. Magoun y.

Illinois Trust and Savings Bank, 170 U.S. 283, 295

(1898); Rogers v. Hennepin Co., 240 U.S. 184, 192

(1916). Mr. Justice Bradley’s words were also quoted

In Flint v. Stone Tracy Co., 220 U.S. 107, 160 (1911),

a case involving the corporation tax which Congress had

imposed by virtue of provisions of the Tariff Act of

1909.75 In none of these cases, however, did the parties

raise, or the Court perceive, any First Amendment

problem for religious tax exemptions, including the

Flint case, supra, in which the taxing power of the

Congress was at issue.

Following the Everson case, however, the Court has

had at least three prior opportunities to decide the issue

raised on the instant appeal. In two instances this

Court upheld the exemption on the merits. In the third

it denied certiorari, allowing a decision by the highest

court of Maryland in favor of the exemption to stand.

The first was Lundberg v. County of Alameda, 46

Cal.2d 644, 298 P.2d 1 (1956), app. dism. sub nom.

Heisey v. County of Alameda 352 U.S. 921 (1956). In

that case, California tax exemptions for religious schools

were unsuccessfully challenged in the courts of that

74134 U.S. at 237.

7536 Stat., Ch. 6, 11, 112-117 (1909).

State on First Amendment grounds. The Supreme Court

of California held that:

“[E]ven if we regard the exemption as benefiting

religious organizations, it does not follow that it

violates the First Amendment. The practice of

granting tax exemptions benefiting religious sects

began in the colonial period. Today, at least some

tax exemption for religious groups is authorized by

statutory or constitutional provisions in every state

and the District of Columbia, as well as by federal

law. No case has been found holding that the

grant of such exemptions is contrary to state or

federal constitutional provisions prohibiting the

support or establishment of religion, and where

the matter has been raised, exemptions have been

upheld.”’ 76

This Court dismissed the appeal “‘for want of a substan-

tial federal question.” 352 U.S. 921 (Black, J. and

Frankfurter, J., dissenting).

Again, in General Finance Corp. v. Archetto, 93 R.I.

392, 176 A.2d 73 (1961), app. dism. 369 U.S. 423

(1962), the Court dismissed, “for want of a substantial

federal question,” an appeal taken from a unanimous

decision of the Rhode Island Supreme Court which had

upheld tax exemptions for religious bodies, although

Mr. Justice Black was of the opinion that probable juris-

diction should have been noted. Finally, in Murray v.

Comptroller of the Treasury, 241 Md. 383, 216 A.2d

897 (1966), cert. den. 385 U.S. 816 (1966), the Court

denied a petition for certiorari seeking review of a deci-

sion of the Court of Appeals of Maryland upholding tax

exemption for structures used exclusively for public

worship.

76998 P.2d at 7.

While the Court’s denial of certiorari in the Murray

case may not be taken as any expression of opinion by

this Court upon the merits of the decision rendered by

the Maryland court,?? its decisions in the General

Finance and Heisey cases are of very different dimen-

sion. When this Court dismisses an appeal for want of

a substantial question, it is deciding the case on its

merits.72 Moreover, both the Rhode Island Supreme

Court in the General Finance case and the California

Supreme Court in the Heisey case considered and

rejected the argument that the First Amendment barred

the religious tax exemptions involved in those cases.

Therefore, the General Finance and Heisey cases must

be counted among the list of precedents provided by

the courts of the Nation in sustaining, either directly

or indirectly, the validity of exemptions for church

property either under the First Amendment or analo-

gous provisions of State constitutions. The list is

unbroken, in the State courts, in the lower Federal

courts, and in this Court. In this important respect,

exemptions for church property are distinguished from

other types of State-Church involvements in which

certain forms of government assistance have been upheid

in some cases and struck down in others.79

77 Wade v. Mayo, 334 U.S. 672, 680 (1948).

78Barton v. Sentner, 353 U.S. 963 (1957); Stern & Gressman,

Supreme Court Practice 164 (3d Ed.).

79State supplied sectarian textbooks were upheld by this Court

in Cochran v. Board of Education, 281 U.S. 370 (1930) and in

Board of Education v. Allen, 392 U.S. 236 (1968), but denied

by Oregon under its own constitution in Dickman v. School

District No. 620, 230 Ore. 238, 366 P.2d 533 (1961). In

Everson v. Board of Education, 330 U.S. 1 (1947), this Court

sustained the practice of providing bus transportation by State

Moreover, unlike the background preceding this

Court’s comparatively recent landmark decisions in the

areas of civil rights and reapportionment, there is not

only present here a long continued, completely consist-

ent history and unbroken chain of judicial precedents,

but also absent in this instance are any compelling

demands of the existing social order for the vindication

of fundamental constitutional rights such as existed in

those historic cases. Where history and the course of

judicial decisions point in uncertain directions,®° the

or local authorities for all pupils, including those attending reli-

giously-related schools. On the other hand, some State courts

have reached the opposite result under the provisions of their

own constitutions. Gurney v. Ferguson, 190 Okla. 254, 122 P.2d

1002 (1942); Mitchell v. Consolidated School Dist. No. 201, 17

Wash.2d 61, 135 P.2d 79 (1943). Again, grants for neglected

and dependent children in denominational homes and institutions

have been upheld in some States, Schade v. Allegheny Co. Insti-

tution District, 386 Pa. 507, 126 A.2d 911 (1956), while tuition

payments were set aside in another, Swart v. South Burlington

Town District, 122 Vt. 177, 167 A.2d 514 (1960), cert. den. sub

nom. Anderson v. Swart 366 U.S. 925 (1961). |

®Thus, it can be fairly maintained that this Court’s repudia-

tion in 1954 in Brown v. Board of Education, 347 U.S. 483, of

the invidious “separate but equal” concept approved in Plessy vy.

Ferguson, 163 U.S. 537 (1896), apart from its long overdue

recognition of the gross injustice of such a policy, represented

a return to the original historical purposes of the post Civil War

amendments, as exemplified by the Court’s earlier decision in

Strauder v. West Virginia, 100 U.S. 303 (1879). Dixon, Demo-

cratic Representation 141 (1968). Similarly, however revolution-

ary Baker v. Carr, 369 U.S. 1, and the ensuing 1964 Reapportion-

ment Cases, 377 U.S. 533 et seq., may have appeared to some

critics, earlier decisions of the Court, Wood v. Broom, 287 US. 1

(1932), and Smiley v. Holm, 285 U.S. 355 (1932), can

to sustain its jurisdiction to take up and decide claims

lative malapportionment. Moreover, the early history of

United States, at least well into the second half of the Nine-

Court is correct in interpreting basic constitutional pro-

visions in the context of the present national social

structure, especially when not to do so would sacrifice

present justice to a past history, however lamentable.

On the other hand, when, as in the case at bar, an

undeviating history, unbroken judicial precedents and

the realities of the existing social structure all support

the continuation of practices deeply imbedded in the

mores of the people and universally accepted, we

believe that sound constitutional construction dictates

that such practices be upheld and not outlawed by this

Court.

The New York Exemption Is Fully in Accord

With This Court’s Decision in Everson

Solidly grounded in legislative history and judicial

precedent, religious tax exemptions also draw firm con-

stitutional support from a diversified array of Church-

State decisions by this Court. The modern development

of the religious guarantees of the First and Fourteenth

Amendments begins with the Jehovah Witnesses’ cases

of the early 1940’s. That development has continued

steadily through such landmark decisions as Everson,

McGowan and Schempp.*' If one fact stands out clearly

teenth Century, also supports the proposition that representation

in legislative bodies was to be based substantially on population.

McKay, Reapportionment: The Law and Politics of Equal Repre-

sentation 9-98 (1965).

81 Everson v. Board of Education, 330 U.S. 1 (1947); McGowan

v. Maryland, 366 U.S. 420 (1961); School District of Abington

Township v. Schempp, 374 U.S. 203 (1963).

from this development, it is the perennial concern of

this Court to restrict the government to secular activities

and to protect the religious freedom of individuals and

institutions. Religious tax exemptions of the type in-

volved in this case make an enormous contribution pre-

cisely to the secularity of government and to the religious

liberty of all citizens and organizations.

In his argument against these exemptions, appellant

seeks to derive support from certain statements by this

Court in Everson. He appears to rely principally, if not

solely, on the “no aid to religion” language of Everson

in order to demonstrate the constitutional impermis-

sibility of the New York type of religious tax exemp-

tion.®?

The short answer to this argument from the Everson

language is that appellant has taken absolutely no cog-

nizance of the rest of the Everson opinion, of the deci-

sion actually reached in the Everson case, or of the

other Church-State decisions rendered by this Court.

At the outset it should be noted that the Everson

opinion was never intended as a comprehensive treatise

on the constitutionality of the many relationships be-

tween religion and government in our country. The

precise question before the Court in Everson was whether

the religious guarantees of the First Amendment, as in-

corporated in the Fourteenth, precluded a State from

providing a comprehensive scheme of safe transportation

to all school children, including those attending parochial

schools. Accordingly, the “‘no aid’’ language of Everson

must be read in the context of this issue—an issue, not

Cf. Brief for the Appellant, pp. 6-7.

of exemption from a general secular law, but of inclusion

in a general affirmative program of secular governmental

services.

In Everson, the Court did not address itself clearly in

any way to the question of which religious exemptions

from general secular laws are mandatory, permissible

or forbidden by the First and Fourteenth Amendments,

On the other hand, both nine and fifteen years after

the Everson decision, this Court dismissed attacks on

the New York type of tax exemption for lack of a

substantial federal question.** Moreover, the Court has

quite explicitly addressed itself to many phases of the

constitutionality of religious exemptions from general

secular laws in a number of cases both before and after

Everson.™ It is obvious, therefore, that any argument

against the New York type of exemption that is based

solely on the “no aid’”’ language of Everson is an argu-

ment that takes the language out of its proper constitu-

tional context.

Moreover, appellant’s reliance on the “no aid” lan-

guage in Everson overlooks the equally important lan-

guage, in the immediately succeeding paragraph of the

opinion, that explains the constitutional prohibitions on

83 Heisey v. County of Alameda, 352 U.S. 921 (1956); Gen-

eral Finance Corp. v. Archetto, 369 U.S. 423 (1962).

84 Jones v. Opelika, 316 U.S. 584 (1942), reversed on rehear

ing 319 U.S. 104 (1943); Murdock v. Pennsylvania, 319 U.S. 105

(1943); Follett v. Town of McCormick, 321 U.S. 573 (1944);

Board of Education v. Barnette, 319 U.S. 624 (1943); Zorach

v. Clauson, 343 U.S. 306 (1952); the Sunday Closing Law Cases,

366 U.S. 420, 582, 599, 617 (1961); School District of Abington

Township v. Schempp, 374 U.S. 203 (1963); and Sherbert v.

Verner, 374 U.S. 398 (1963).

discrimination against religion.** And somewhat later

in the opinion, the Court affirms flatly that State Power

“is no more to be used so as to handicap religions, than

it is to favor them.” In short, Everson stands for

“no hurt” just as much as for “‘no aid.”” Appellant has

attempted to make the “no aid” language a substitute

for the First and Fourteenth Amendments. This was

certainly not the intention of the Court.

Finally, appellant offers no reconciliation of the “‘no

aid” language with the result actually reached by the

Court in Everson. Safe transportation was upheld for

all school children, even though it may have encouraged

and assisted some parents in Choosing a parochial rather

a public school. The “no aid” language, therefore, cannot

be read as a literal, absolute test.

This is all the more evident in light of the Court’s

acceptance in Everson of the legitimacy of the universal

practice of providing fire and police protection, sewage

facilities, and the use of streets and sidewalks to religious

organizations in common with the rest of the commun-

ity. Such services, “so separate and so indisputably

marked off from the religious function,”’®’ are not incon-

sistent with the “‘no aid’”’ language of Everson because

that language was aimed to suppress such Establishment

practices as compulsion of attendance at religious serv-

ices, official professions of faith, the imposition of tithes

and taxes for churches and ministers, and criminal pun-

85330 U.S. at 16.

86330 U.S. at 18.

87 Ibid.

ishments and civil disabilities for religious dissenters,™

These are the kinds of “aid” that the First and Four.

teenth Amendments clearly forbid.

On the other hand, when government provides its

general secular services to churches as part of the general

public in our society, Everson finds no constitutional

bar. Everson mentions “the difficulty in drawing the

line between tax legislation which provides funds for

the welfare of the general public and that which is

designed to support institutions which teach religion.”®

The Everson result, however, affirms that the line exists,

and that it is a line of great constitutional significance.

In the case at bar, the City and State of New York

are simply providing the same secular services to churches

that they provide to all other elements in the commun-

ity. Accordingly, the “‘no aid’’ language of Everson has

no determinative relevance in this controversy. If the

New York exemption is to be struck down on the ground

that it “aids” religion in a constitutionally forbidden

manner, this Court must go immensely further than the

Everson decision ever dreamed.

88See the Court’s discussion of the background of the First

Amendment, 330 U.S. at 8-16.

89330 U.S. at 14.

VI.

The New York Exemption Is Fully in Accord

With This Court’s Decision in Schempp

Everson was decided in 1947; Schempp was decided

in 1963. In the intervening sixteen years this Court

decided a number of Church-State controversies ranging

from religious instruction in the public schools to public

observance of Sunday as a common day of rest. Through-

out this period of constitutional development, some liti-

gants in this Court have persisted in urging an absolute

and literal extension of the “tno aid’ passage. Their

persistence has been unavailing. In Schempp, this Court

repeated the language of Everson and gave it a refined

interpretation:

“The test may be stated as follows: what are

the purpose and the primary effect of the enact-

ment? If either is the advancement or inhibition

of religion then the enactment exceeds the scope

of legislative power as circumscribed by the Con-

stitution. That is to say that to withstand the

strictures of the Establishment Clause there must

be a secular legislative purpose and a primary effect

that neither advances nor inhibits religion.”™

The first case cited by Schempp to support this test is

Everson v. Board of Education.

Any doubt that might have lingered about the rela-

tionship of Schempp to Everson was settled last year

by this Court’s decision in Board of Education v. Allen.®'

Once again, the question was whether the Fourteenth

Amendment permits a State to extend a secular educa-

tional benefit (the free loan of secular textbooks) to all

99374 US. at 222.

91392 U.S. 236 (1968).

ee wee ~

school children, including parochial school children. In

answering this question, the Court did not content itself

with simply asking whether the State program resulted

in aid to religion. The Court acknowledged that there

would be some incidental religious effects, but cited

Everson, applied the Schempp test and upheld the lend-

ing program.

It is manifest, therefore, that if appellant’s basic argu-

ment is the “no aid” passage from Everson, his case

must fail. Proof that a governmental program results

in some type of aid to religion may raise a constitutional

question but does not settle it. Appellant has provided

no basis for settlement but an absolute and literal ex-

tension of the “no aid” language, an application that

the Court has steadfastly rejected from Everson to

Schempp to Allen.

It remains true, however, that the Schempp test “is

not easy to apply,” as this Court frankly acknowledged

in Allen.®? Nevertheless, amicus believes that New York’s

religious tax exemption satisfies the Schempp test.

A. Application of the Schempp Test. The Schempp

test requires a secular purpose and a primary secular

effect that neither advances nor inhibits religion. New

York has exempted the property of religious organiza-

ticas that is used exclusively for religious purposes. In

applying the Schempp test to this exemption, a funda-

mental distinction must be made between two types of

religious organizations:

(1) Organizations exclusively concerned with houses

of worship;

92392 US. at 243.

—

(2) Organizations that, in addition to conducting a

house of worship and other “exclusively religious” activ-

ities, also conduct “service activities” (such as caring

for the sick, the poor, the blind, the ignorant, the

orphaned and the elderly) that are of immense benefit

to the secular general welfare.

With respect to the second category of religious organi-

zations, it is manifest that the Schempp test is fully

satisfied. The services rendered by such organizations

are of inestimable benefit to the community. In granting

tax exemption to such organizations, the legislature in-

tends to encourage, and actually does encourage, the

development of such services. Moreover, the legislature

makes certain that the private charitable organization

that is infused and energized by religious belief is in

no way put at a disadvantage with respect to the private

charitable organization, also tax exempt, that is wholly

secular or militantly atheistic in its motivation.

It can truly be said, with respect to religious organi-

zations that conduct schools, hospitals, orphanages and

homes for the aged, that tax exemptions have a high

secular purpose and that there is a direct, primary and

secular benefit to the community, an effect that is

wholly independent of any religious effects of the exemp-

tion statute. Thus, the Schempp test is fully satisfied.

Short of extreme emergencies, no community in its right

mind would reduce the resources of any private non-

profit organizations that feed the hungry, clothe the

naked and care for the sick. And diminution in the

services these organizations render would have to be

offset, at least in most instances, by increased services

from the State.

Since private nonprofit organizations, especially reli-

gious organizations, operate to a substantial extent on

the basis of freely donated services by their members,

and since the State would have to pay all of its employees

at the market rate, there can be no doubt that it would

cost the community far more to provide these services

at public expense than to encourage their contribution

by private nonprofit agencies, regardless of the religious

or secular character of their inspiration.

What, however, of the religious organization that is

engaged exclusively in divine worship? Its activities are

not only “exclusively for religious purposes”; they are

also “exclusively religious” in the sense that it is no

part of the ordinary business of government to supply

them.** If the religious faith of the American people

were to wane tomorrow, and every sanctuary and syna-

gogue in the land were to disappear, the hand of govern-

ment could not be lifted to restore what the people

had abandoned. What secular purpose, what independent

secular effect, is there then in the grant of an exemption

to a religious organization whose existence and survival

are constitutionally committed to the free choice of

citizens, not to the government?

In exempting such organizations, New York intends

and achieves at least three secular effects: (1) fostering

the objectives of the separation of Church and State;

93As this Court noted in Schempp, governmental regulation of

the “temporal and geographic environment” of military personnel

may justify public provision of voluntary religious services. 374

US. at 226, n. 10. The same would seem to be true of the situa-

tion of patients in public hospitals and of prisoners in jails and

penitentiaries.

however, that an exemption may be granted, not to

encourage an institution, but to abstain from unneces-

sary interference with it.

There are at least two distinctly different types of

_ private nonprofit organizations: (a) those that provide

services that the government would have to provide, or

might lawfully choose to provide, if the private organi-

zations did not exist; and (b) those that are engaged in

activities outside the constitutional scope of govern-

mental! authority. In dealing with organizations of the

first type, government may stimulate their growth

through exemptions, grants and other deliberately favor-

able laws.

In dealing, however, with organizations of the second

type, government’s functions are much more limited.

Government cannot finance them directly, but it must

at least provide the legal framework for their existence.

Government should also abstain from unnecessary inter-

ference with their growth and activities. Exemptions are

an eminently suitable means for this non-interference.

It cannot be emphasized too much that American

constitutional law is built on the bedrock conviction

of the people that government should be limited in its

purposes, powers and activities. Nowhere is the role of

government more limited than in the sphere of funda-

mental opinions and beliefs. Religion is the prime exam-

ple of this sphere, but not the only one. Philosophy is

another. In an era of expanding government, and espe-

cially of heavier taxation to support a wide variety of

social services, the government should never lose sight

of the impact of its tax policies on organizations whose

activities are constitutionally outside its ken. When the

government holds back its taxing power with respect

to these organizations, it is simply recognizing its own

limited and strictly secular competence. Such exemp-

tions do not signify governmental approval—rather, they

guarantee governmental neutrality.

Finally, tax exemptions of houses of worship have

a third secular purpose and effect through the legislative

choice of economically suitable subjects of taxation. The

fundamental purpose of the tax laws is to raise revenue,

and to raise it fairly and equitably. Purely economic

considerations justify many types of exemptions and

exclusions from tax liability. There is no general consti-

tutional principle that every piece of property must pay

taxes.°* Exemptions are not universally acts of legislative

grace; they may be, and often are, dictated by purely

economic considerations of efficiency in the administra-

tion of the tax laws and of the relationship between

the taxable subject and the production of wealth.

With relation to charitable nonprofit organizations in

general, and houses of worship in particular, exemptions

from the ad valorem property tax have a strictly secular

economic justification. It is neither fair nor reasonable

to assess property devoted to nonprofit purposes on

the basis of what the property would bring if devoted

to commercial purposes. It would be ridiculous to assess

a church on the same basis as a farm or factory. The

difficulty of devising a suitable assessment formula for

°4See the excellent discussion of this point, and of religious

tax exemptions in general, in Gianella, Religious Liberty, Non-

establishment and Doctrinal Development—Part II. The Nonestab-

lishment Principle, 81 Harv. L. Rev. 513, 544-54 (1968).

church property devoted to worship fully justifies the

exemption of such property from the ad valorem tax.

Moreover, property devoted to nonprofit purposes, and

particularly to religious purposes, does not generate in-

come. It is a necessary expense for the conduct of the

nonprofit purpose, religious or secular. State legislatures

have recognized this fact clearly by granting exemption

to property actually used for religious purposes but

| denying it to property owned by churches but used

| commercially for the production of income.

Viewed in the light of these secular purposes and

effects, the New York exemption fully satisfies the

Schempp test. Accordingly, there is ample justification

for holding that this exemption falls within the broad

discretionary area that this Court has often recognized

as a necessary attribute of the Federal and State legis-

latures in apportioning the burden of taxation.

B. Is the Schempp Test Fully Applicable? The

Schempp test represents the culmination of a long effort

by this Court to find a suitable touchstone for the con-

stitutionality of governmental programs and expenditures

that affect religion and religious institutions. Amicus is

doubtful, however, that the Court intended the literal

thrust of the Schempp test to apply to the area of exemp-

tions for religious reasons from general secular laws.

For example, the same day that this Court decided

Schempp, it also decided Sherbert v. Verner.°*

95374 U.S. 398 (1963). Mr. Justice Brennan, who wrote the

opinion for the Court in Sherbert, stated unequivocally in his

concurring opinion in Schempp: “Nothing we hold today ques-

; tions the propriety of certain tax deductions or exemptions

which incidentally benefit churches and religious institutions,

In holding that South Carolina was compelled by the

Fourteenth Amendment to grant an exemption to a

Seventh Day Adventist from one of the provisions in

the unemployment compensation laws, the Court did

not rest its decision in any way on the language of the

Schempp test. Quite different considerations governed

the Court’s decision: religious equality, the substantiality

of the burden on the woman’s practice of her religion,

and the extent to which the exemption would interfere

with the State’s administration of its unemployment

program.

Moreover, it is fairly manifest from other decisions

of this Court that the Schempp test was not intended

as the unique and universal touchstone of the constitu-

tionality of all relationships between the government

and religion. Last January, this Court reaffirmed that

the Constitution forbids the use of the “change of doc-

trine” test in the judicial settlement of church property

controversies. In its opinion, the Court cited Schempp

solely for the propositions that “the First Amendment

enjoins the employment of organs of government for

essentially religious purposes” and that the same amend-

ment “prohibits a State from employing religious organi-

zations as an arm of the civil judiciary to perform

along with many secular charities and nonprofit organizations.”

374 US. at 301. It is also noteworthy that the majority opinion

in Schempp, although silent on the subject of religious tax

exemptions, expressly reserved decision on the subject of govern-

mental provision of voluntary religious services to personnel in

the armed forces. 374 U.S. at 226, n. 10. It is evident, therefore,

that the majority had at least one reservation about the universal

application of the “secular purpose and primary secular effect”

doctrine.

"Presbyterian Church v. Hull Church, 393 U.S. 440 (1969).

Pee 1 pare weret

eR A Ne

the function of interpreting and applying State stand-

ards.”27 The governing principles used by the Court

in outlawing the “change of doctrine” test in the Hull

Church case are taken entirely from Watson v. Jones,®* as

qualified by Gonzalez v. Archbishop,” and erected into

constitutional status by Kedroff v. St. Nicholas Cathe-

dral!™ and Kreshik v. St. Nicholas Cathedral.’

Church property disputes illustrate the inevitable

complexity of American Church-State relationships and

the impossibility, in some areas of Church-State contact,

of defining the constitutional standard of “neutrality”

simply in terms of avoiding “help” or “‘hurt”’ to religion.

When a church congregation splits in dissension and

both groups claim the property in the civil courts, gov-

ernment is compelled to act. No matter which side

wins the case, government has “helped” one religious

group and “hurt” another. Moreover, no matter what

secular standard of decision the government adopts,

the effect on both religious groups is immediate and

substantial.

Taxation is another area in which the contact between

government and religion is unavoidable and substantial.

In common understanding, at least, taxation “hurts”

and exemption “helps.” Jn such circumstances, where

the effects on religion are immediate, substantial and

unavoidably helpful or hurtful, the Schempp test does

97393 U.S. at 449.

9880 U.S. 679 (1871).

99280 U.S. 1 (1929).

100344 U.S. 94 (1952).

101363 U.S. 190 (1960).

not provide a distinct guideline. The Schempp test was

especially designed to govern situations in which the

government asserts a secular justification for affirmative

public activities and expenditures. As such, it has

served well to draw a clean line between forbidden use

by government of religious means for secular ends, and

permissible use by government of secular means, to take

a case, for the improvement of secular education of all

school children, regardless of the secular or religio-

secular character of the school they attend.

Moreover, the requirement of the Schempp test that

there be a secular primary effect that neither advances

nor inhibits religion makes it doubtful that the Court

intended the test to apply to situations in which a

State, out of deference to religious convictions or

status, grants an exemption from a general secular law.

When government grants such an exemption, the reli-

gious effect is immediate and deliberate. Although such

exemptions can and do have secular purposes and

effects, as amicus has shown above, it seems somewhat

artificial and strained to justify such exemptions on the

basis of a careful distinction between their religious and

secular effects, at least as those terms are commonly

understood. That distinction is constitutionally more

appropriate when the government insists that its legisla-

tive program is fundamentally secular in design and

effect, in the sense that religious considerations were

not important in the motivation of the legislation, and

that any religious effects of the law are purely inciden-

tal. Government cannot literally make that type of

assertion when it grants exemptions, out of deference

to religious convictions or status, from general secular

laws.

The fundamental constitutional value that the

Schempp test was designed to protect is “wholesome

ser eh PARTIE ey SShls ANA CNSR +

neutrality” towards religion in the field of govern-

mental activities and expenditures.'°? When government

engages in affirmative programs for the general welfare,

wholesome neutrality requires that the programs be

truly secular in character. When, however, government

seeks to accommodate its programs to the deeply held

religious beliefs of part of its citizens, or when govern-

ment refrains from the imposition of a tax burden on

all religious organizations in order to minimize its

involvement with religion and its interference with the

free exercise of religion, its wholesome neutrality is

achieved not so much by the “secular” character of the

government’s action as by the balance that the govern-

ment strikes between secular and religious interests.

If, therefore, as amicus suggests, the Schempp test was

not specifically designed by this Court to apply to the

type of exemption at issue in this case, other constitu-

‘tional criteria should be employed. These criteria

unquestionably appear in the decisions of this Court

that are directly concerned with religious exemptions

from general secular laws. Applied here, these criteria

fully sustain the constitutional permissibility of the

New York type of tax exemption.

102374 US. at 222.

Vil.

The New York Exemption is Fully in Accord

With This Court’s Decisions in the Area of

Religious Exemptions From General Secular

Laws

Religious exemptions have played an important role

in the development of American Church-State policy.

To be properly evaluated, they must be viewed within

the context of the many facets of that policy at the

Federal and State level. Taken in isolation, exemptions,

perhaps, might seem to be an unconstitutional form of

aid’; taken in context, exemptions are clearly an

important consitutional form of “accommodation.”

In addition to permitting exemptions from property

taxes for houses of worship but forbidding their direct

support by tithes and taxes, American Church-State

policy has guaranteed freedom of worship, preaching and

education at the same time that it has prohibited

European types of church establishment and any unnec-

essary governmental involvement with religious affairs.

Accordingly, the American doctrine of separation of

Church and State cannot be explained in a single sen-

tence. Neither, despite the best efforts of some eminent

constitutional scholars,!®? can the constitutionality of

the manifold relationships between religion and govern-

ment be determined by a single formula. The Constitu-

tion itself required two clauses to define the relationship

'°3See, for example, Kurland, Religion and the Law (1962).

For the difficulties in constructing a single test even for just one

of the religion clauses, see Schwarz, No Imposition of Religion:

The Establishment Clause Value, 77 Yale L.J. 692 (1968).

(tne

between religion and government; it is unlikely that they

can ever be reduced to one.

For these reasons, the constitutional permissibility of

the universal practice of granting tax exemptions to

houses of worship must not be viewed in isolation from

the carefully articulated Church-State relationships of

which this practice is only a part. For example, it is

extremely significant that, with respect to houses of

worship and other “exclusively religious” organizations,

the States have uniformly followed a positive policy on

exemptions and a negative policy on grants.

This careful and universal distinction between exemp-

tions and grants strongly suggests that the States have

seen a decisive constitutional difference between the

effects of exemptions and the effects of grants with

respect to houses of worship. These differences are both

financial and political. On the financial side, exemptions

do not pay the purchase price of land, the construction

cost of churches or the salaries of ministers. Grants

could. On the political side, there is no competition for

exemptions—they are available to all religious groups

(including those militantly opposed to traditional forms

of organized and theistic religion) and to a wide variety

of charitable and educational organizations.

On the other hand, grants to houses of worship,

because of the limitations on the amount of money

available, might tend to stimulate precisely the political

competition that the First Amendment was designed to

eliminate. Owing to their neutral financial and political

effects, exemptions can be rightly viewed by the States

as a fitting expression of “wholesome neutrality.”

As Professor Freund has put it:

“The traditional tax exemption of church-

related property is sometimes advanced as a legal

argument for subsidies, which are viewed as an

economic equivalent. The argument, however,

proves too much, since church buildings themselves

are exempted, and it would hardly be argued that

therefore subsidies for the building of churches

would be valid. Moreover, 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. Psychologically, too, the

the exemption differs from subsidy; the former is

viewed as an entrenched status; the latter as a

recurring political issue.”'™

If, contrary to our whole history, tax exemptions of

houses of worship were part of a grant instead of a

no-grant pattern at the State and federal level, the

constitutional question before this Court would be

entirely different from what it actually is. The question

would then be the extent of First and Fourteenth

Amendment prohibitions on direct and purposeful finan-

cial support by government of churches precisely as

churches—a question which this Court has already

strongly answered in Everson and Schempp. Since, how-

ever, the State and Federal governments have joined a

positive policy on exemptions of houses of worship with

a negative policy on grants in that quarter, the constitu-

tional question cannot be simply whether the exemp-

'*Freund, Public Aid to Parochial Schools, 82 Harv. L. Rev.

1687, n. 16 (1969).

eA LTT

tions aid the houses of worship, but must be whether

the dual governmental policy on exemptions and grants

conforms to the dual constitutional guarantee of free

exercise and no establishment.

The complexity of American Church-State relation-

ships is further illustrated by the fact that both Federal

and State legislatures have constantly co-ordinated the

tax treatment of religious organizations with that given

to a wide variety of other types of nonprofit educational

and charitable organizations.'®S In part, this co-ordina-

tion can be explained by the substantial engagement of

the churches in charitable and educational activities.

This explanation, however, may not be sufficient with

respect to religious organizations that are exclusively

concerned with religious worship. Legislatures have

given the same tax treatment to sanctuaries as to

scientific centers. It may be true that the constitu-

tional justifications for this similarity of treatment may

not be the same in both instances; it is certainly not true,

however, that it is impossible for the constitutional

justifications to be different. Proving that a house of

worship stands in a different constitutional relationship

to the government than a research center does not prove

that the government is compelled to tax the sanctuary.

if, again contrary to our whole tradition, houses of

worship were the only institutions given ad valorem tax

exemptions, such unique tax treatment might raise an

issue respecting an unconstitutional preference of reli-

gion. On the other hand, if houses of worship were the

10SCF the text of the current State statutes and constitutional

provisions in Appendix B, found in the Supplement filed with

this brief.

only voluntary, nonprofit institutions denied tax exemp-

tions, there would be a very serious question of an

unconstitutional discrimination against religion. The

fact, however, is that the Federal and State governments

have broadly structured the type of exemption at bar in

this case, with the result that neither preference nor dis-

crimination is at issue.

In approaching the permissibility of the New York

type of exemption within the total framework of

American tax and Church-State policies, the Court will

find valuable guidance in its earlier decisions in Jones y.

Opelika,‘°° Murdock v. Pennsylvania,’ and Follett y.

Town of McCormick.'*

In these three cases the Court confronted for the first

time the problem of the relationship between the taxing

power and the free exercise of religion. The Court’s

answer to the problem was unequivocal: government

cannot tax a religious activity, even through the medium

of a general, nondiscriminatory license tax on door-to-

door selling of books, pamphlets and wares. The occu-

pation of the colporteur, itinerant, or established in

one community, was protected against the general

peddler’s tax, because the nature of the tax made it a

prior restraint on the free exercise of religion. The Court

also gave a second reason: the tax, if legitimate in

principle, could spread in such a way as to make it

financially impossible for religious sects like the Jehovah

106316 U.S. 584 (1942), reversed on rehearing 319 U.S. 104

(1943).

107319 U.S. 105 (1943).

108321 U.S. 573 (1944).

PILED RY

Witnesses to carry on one of their fundamental religious

activities. Mr. Justice Douglas made the point cogently

for the Court in Murdock v. Pennsylvania: “Freedom

of speech, freedom of the press, freedom of religion are

available to all, not merely to those who can pay their

own way.”

Murdock, Jones and Follett stand squarely for the

proposition that a religious exemption is mandatory

where the occupational tax falls on the exercise of a

religious activity and is of such a nature as to tend to

make the continued exercise of the activity impossible.

It can scarcely be doubted that this is sound constitu-

tional doctrine today. If it is not, then the State and

Federal governments would be free to tax preachers for

giving sermons, priests for saying Mass, and rabbis for

conducting Bar-Mitzvahs. The exemption from such

taxes is essential for free exercise, because taxation is

incompatible with free exercise. Just as the No Estab-

lishment Clause is a specific limitation on the taxing and

spending power,'!® so is the Free Exercise Clause.

In deciding that Free Exercise guarantees had been

breached in Murdock, Jones and Follett, the Court was

careful not to give religious groups blanket constitutional

protection against all financial burdens of government.'"

The question whether the government might impose

the general ad valorem taxes on property used or

109319 U.S. at 111. Mr. Justice Douglas, of course, did not

mean that government must affirmatively finance the free exer-

cise of religion. The precise point was the necessity, in this case,

of an exemption.

110Flast v. Cohen, 392 U.S. 83, 104 (1968).

111Cf 319 US. at 112; 321 US. at 577-78.

employed in connection with religious activities was

specifically distinguished from the question of license

taxes. What, however, is extremely significant is that the

majority of the Court never even raised the question of

the constitutional permissibility of the traditional

practice of exempting religious groups from general

property taxes. Such permissibility seems to have been

taken completely for granted.

Everson v. Board of Education’? was decided three

years after Follett v. Town of McCormick. The No

Establishment language of Everson is clear and emphatic:

government cannot tax to raise funds to support strictly

religious activities. Yet there is not the slightest indica-

tion in the majority or minority opinions in Everson

that members of the Court saw any inconsistency

between what they said in Everson and what they had

said so recently in Murdock, Jones and Follett. Indeed,

the Everson majority cited Murdock as its authority for

the incorporation of the religious guarantees of the First

Amendment into the Fourteenth.'!3

One year after Everson, this Court invalidated a public

school “‘on-the-premises” released-time program.'!* Five

years after Everson, this Court sustained a different kind

of released-time program, under which the public school

accommodated its schedule to off-the-premises religious

instruction.''S The fundamental distinction between the

112330 U.S. 1 (1947).

13330 US. at 8.

"McCollum v. Board of Education, 333 U.S. 203 (1948).

''SZorach v. Clauson, 343 U.S. 306 (1952).

two cases, however, did not rest on the use or non-use

of public property. The essential difference between the

two cases was the difference between an affirmative,

purposeful support of religion as such by the gover-

ment—a support that involved public premises, public

officials and public embarrassment of the children of

dissenters—and a deliberate abstention by the govern-

ment in the interest of accommodating the free exercise

of religion. The exemption from public school attend-

ance which Zorach v. Clauson approved was constitu-

tional because it did not frustrate the secular educational

efficiency of the public schools, did not coerce anyone

in the practice of his own religion, and did not involve

the government intimately with religion. On the positive

side, the exemption from public school attendance

accommodated the constitutional right of parents to

provide an efficient system of formal religious instruc-

tion for their children.

There is nothing, of course, in the language of Zorach

v. Clauson to suggest that a state must grant the type of

religious accommodation afforded by New York in that

case. The attack was on the permissibility of the

accommodation, and the Court answered in terms of

permissibility. Thus, the Court recognized that the No

Establishment and Free Exercise Clauses leave open at

least one area of religious accommodation to legislative

discretion.

The next important Church-State decisions by this

number of Jewish merchants claimed that they had a

116366 U.S. 420, 582, 599, 617 (1961).

_ —

constitutional right to an exemption. In disallowing that

claim, on the ground that a mandatory exemption might

frustrate the secular purpose of the Sunday closing laws,

the majority of the Court clearly Suggested that the

States were free to grant the exemptions, if they were

willing to assume the burden of doing so. One year later,

the Court sustained precisely such an exemption. !!7

By these decisions, the Court has recognized that the No

Establishment and Free Exercise Clauses do not settle

all matters on a constitutional level: the wall of separa-

tion has not destroyed the field of legislative discretion.

It is now necessary for this Court to decide once

again''® whether this discretionary area includes the

traditional exemption of religious properties from the

general ad valorem tax. Amicus has already urged the

legislative and judicial history of these exemptions as

compelling proof of their constitutional permissibility.

That proof is solidly reinforced by a consideration of

the consequences that a constitutional mandate of

imposing taxation would inflict on the fiscal separation

of Church and State and on the free exercise of religion.

A. Fiscal Separation. If the States are forced by the

strictures of the Fourteenth Amendment to tax, rather

than permitted by its guarantees to exempt, church

Property devoted exclusively to church Purposes, the

States will find that they are more substantially involved

''7Arlan’s Dept. Store vy. Kentucky, 371 U.S. 218 (1962).

184 micus has already discussed earlier decisions by this Court

on the merits in Heisey y. County of Alameda, 352 US. 92]

(1956) and General Finance Corp. v. Archetto, 369 U.S. 423

(1962).

eta

than at present with the churches. It must be noted that,

whether the States tax or not, they must identify the

churches as churches—most importantly, to avoid both

establishment and interference with free exercise.

Identification of the churches, however, brings govem-

mental involvement with religion to an end in the area of

taxation, provided that the States are permitted to

exempt church property used for exclusively religious |

purposes. On the other hand, if the States are compelled

to tax such property, there must be continuous govern-

mental action aimed precisely at assessing the property

and collecting the tax.

The difficulties involved in determining the secular

value of property committed to a religious use are enor-

mous. Religious property as such is scarcely the subject

of ordinary commerce, and it seems both indecent and

dangerous to force a cold appraisal of its secular value

by the States. What is a sanctuary worth, as a sanctuary,

on the open market? If governments are forced to tax,

their involvement with the churches will reach an

unprecedented level of intimate financial scrutiny.

Tax exemptions of houses of worship have un-

doubtedly played an important role in maintaining reli-

gious peace in the United States. By keeping the tax

collector away from the sanctuary, they have prevented

innumerable controversies over the secular value of

objects men hold most sacred. Moreover, by preventing

even the possibility of governmental foreclosures for

deficient taxes on the places where men worship,

exemptions have reinforced, not undermined, religious

peace and the wall of separation between Church and

State.

| ee

Some of the staunchest public defenders of the strict

wall of separation have admitted that, in actuality, the

exemption of church property “creates no relationship

between Church and State.”"!9 It might be more accu-

rate to say that it creates a relationship of minimal,

healthy and neutral involvement. If State taxation

becomes compulsory, the commendable goal of main-

taining freedom of the churches from intimate govern-

mental scrutiny will necessarily have been impaired.

The good sense of not having the state undertake the

role of tax collector and lien enforcer so far as church

properties used for religious worship are concerned is

obvious by inspection. We fail to see how abolition

of the traditional practice of State exemption would

further the constitutional ideal of separation of Church

and State. Quite to the contrary, we believe it would

be an unfortunate departure from that ideal, and a dis-

service to the States quite as much as to the churches.

B. Free Exercise. Amicus also believes it indispu-

table that, in the practical order of things, the compul-

sory elimination of tax exemptions for houses of

worship might substantially impair the flourishing of

religious liberty in the United States.

While all churches would be affected, it would be the

smaller, rural country churches and the churches of the

depressed center-city sectors of the large metropolitan

areas that would be most hurt, if their dwindling, and

frequently impecunious, congregations were required to

pay taxes on church property. The assessed valuation

might be substantial, if the norm of the best use to

which the property might be put were employed. On

the other hand, the ability of small rural and center-city

"Agnes E. Meyer, The School, the State, and the Church,

Atlantic Monthly 45, 48 (Nov., 1948).

—

congregations to pay the taxes assessed on such a valu-

ation would be extremely circumscribed.

Under a system of compulsory taxation, the larger

churches would have a distinct financial advantage over

the smaller ones. Compulsory taxation might force

many small, independent churches to curtail their reli-

gious functions, merge with a denomination whose

financial resources were more adequate than theirs, or

even go out of existence. Thus, the religious pluralism

that is characteristic of America and specially protected

by the First Amendment would be substantially im-

paired should the New York type of exemption be for-

bidden by this Court.

C. Burdens and Benefits. Against the many argu-

ments supporting the constitutionality of the New York

type of exemption, there is one fundamental argument

urged by those who seek the abolition of the exemp-

tion. This is the contention that the exemption forces

them to pay more than they would otherwise have to

pay in the way of taxes, and therefore to contribute to

the support of the churches. Amicus has already

pointed to the total lack of proof that appellant’s taxes

would in fact be reduced by the abolition of the New

York exemption. There are, however, other compelling

reasons for rejecting the argument based on _ the

“burden” that exemptions allegedly impose on the non-

churchgoer, the nonbeliever, or the believer who does

not believe in exemptions.

The first reason is that the “‘burden”’ falls equally on

all taxable property owners, without distinction as to

their religion or lack of it. Property taxes are not taxes

for the churches; they are part of the basic revenue of

the State needed to pay for its general secular services

to the entire community. When appellant complains

a ee

eee

that he does not receive his proportionate share of tax

benefits because he does not belong to any church, he

is in exactly the same position as other members of the

community who object to this or that tax on the

ground that they individually do not benefit from it at

all or at least not as much as others.

The second fallacy in the “burden” argument is its

complete misconception of constitutional rights to

equality of tax treatment. Some Americans bear more

of the cost of government than others, but there is no

constitutional violation unless two persons in precisely

the same economic and legal situation are treated differ-

ently by the government. When the legislature varies

tax liabilities according to significant differences in eco-

nomic and legal status, the legislature is distributing tax

burdens in a constitutional and equitable manner. There

is no constitutional mandate that every piece of prop-

erty, or that every person and institution, be taxed.

When the legislature grants the same tax exemption to

houses of worship that it concedes to a wide variety of

other private, voluntary, nonprofit organizations, the

legislature may be “‘burdening” the appellant in common

with all other taxpayers, but proof of a tax burden is

no proof whatsoever of unconstitutionality.

Moreover, to look only at the burden is to miss the

enormous benefit that such exemptions confer on

American society. This is particularly true of religious

exemptions from general secular laws. They greatly

enhance religious liberty in a society as deeply pluralis-

tic as our own. They express the deep-rooted and char-

acteristic policy of not compelling conformity where

conformity is not essential to the health, peace and

prosperity of our country. To destroy religious exemp-

tions in the name of preventing “burdens” on taxpayers

(or “aid” to religion) would be to destroy the American

—

tradition of as much governmental acconimodation as

possible to the interests of religious liberty.

D. Freedom of Conscience. In addition to making

the argument from financial “burden,” appellant alleges

that tax exemptions of houses of worship interfere with

his freedom of conscience. This interference, however,

amounts to nothing more than the State’s adoption of

a tax policy with which appellant disagrees in con-

science. Appellant is not compelled to go to church or

profess a creed. He is not compelled to pay any taxes

levied for the support of religious worship. He has not

been put under any civil disability or criminal penalty

because of his religion. He is as free as any other

American to worship in accordance with the dictates

of his conscience.

ee een

From the very beginning, we have sought to accom-

modate our laws so that every citizen could live in as

much harmony as possible with his conscience and his

government. It is not possible, however, in a nation as

religiously diverse as our own, to give every citizen’s

conscience a right of veto over governmental policy.

Appellant is free to hold his conscientious convictions,

but he has no right, merely because they are conscien-

tious, to impose them as the law of the land.!2°

120During the proceedings in the First Congress (1789) over the

wording of the Bill of Rights to be submitted to the States, there

were repeated efforts to add a “rights of conscience”’ clause to

the No Establishment and Free Exercise guarantees. ll such

efforts, however, failed. See Antieau, Downey, and Roberts,

Freedom from Federal Establishment 128-31 (1964). In view of

this deliberate action by the First Congress, there is no historical

basis for classifying mere disagreement in conscience as a con-

stitutional injury.

ees

in deciding where to draw the line between accom-

modation and non-accommodation of the individual

conscience, our Nation has been guided by eminently

practical, as well as constitutional, considerations of the

degree of interference with essential secular objectives

that accommodation involves, and of the degree of seri-

ous, personal hurt to the individual citizen that non-

accommodation involves. On the basis of that distinc-

tion, it is manifest that tax exemptions of houses of

worship do not paralyze the public revenue, and that

taxation of such properties would involve the govern-

ment very intimately with the churches and might well

impose a significant burden on the religious liberty of

many Americans. Thus, the importance of the accom-

modation far outweighs the financial burden, if any, on

the government and on those who conscientiously dis-

agree with the exemption policy.!?!

The tradition of tax exemptions which appellant

requests the Court to strike down is a “rationally con-

ceived and deep-seated policy, and not an accidental or

121Cf. Chief Justice Warren’s discussion of the constitutional-

ity of indirect burdens on the free exercise of religion in Braun-

feld v. Brown, 366 U.S. 599, 603-9 (1961), and especially the

following passage: “Abhorrence of religious persecution and

intolerance is a basic part of ou

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