March 8, 2003
GOD, YOU CALL THAT A RELIGION?
Strayhorn v. Ethical Society of Austin, No. 03-02-00 066-CV (Tx. Ct. App., 3d Dist. March 6, 2003)(Via Eugene Volokh)The Ethical Society of Austin ("the Ethical Society"), a congregation of individuals who meet regularly to practice a belief system known as Ethical Culture, seeks tax-exempt status as a religious organization under the tax code. The Texas Comptroller denied the application on the ground that the Ethical Society must demonstrate that it requires belief in a "God, Gods, or higher power" (hereinafter "the Supreme Being test") in order to qualify. The trial court found that the Ethical Society should not have been denied tax-exempt status because the Comptroller's test was unconstitutionally underinclusive and that the Ethical Society should have qualified for the requested tax exemptions. We must now decide whether a state government may, consistent with the First Amendment to the United States Constitution, require a group to demonstrate its belief in a "Supreme Being" in order to be considered a religion for statutory purposes. Because the Comptroller's test fails to include the whole range of belief systems that may, in our diverse and pluralistic society, merit the First Amendment's protection, we will affirm the trial court's judgment. [Citations omitted] . . .Ethical Culture has the marks of a traditional religious organization. Indeed, with a history dating back to 1876, Ethical Culture does appear to function in a way analogous to more established religious groups. It maintains a bona fide separate corporate existence. It possesses a coherent literature. Ethical Culture groups meet regularly, typically on Sundays, for services including ceremonial practices. Those services are led by a group of clergy, most of whom have been educated at theological institutes and seminaries. The same trained clergy perform life cycle rituals, including marriages and naming ceremonies. The services are supplemented with religious instruction for children. The Ethical Society of Austin has such meetings, coordinated by professional clergy, and meets regularly on Sundays. Taken together, these factors indicate to us a sincere attempt by the Ethical Society, and its sister groups, to undertake to provide the benefits of a traditional religion. In light of our understanding of the structure of Ethical Culture's principles, these external indications of religious faith mark an important factor for determining whether the Ethical Society is a religion.
One of the ways in which the First Amendment is a headache for government is that while enforcing it necessarily requires us to identify religions, it also forbids us from making this determination. Michael McConnell once accused me (jokingly, I think) of wanting to limit the First Amendment to those religions that were recognized as such in 1789. I think that would be wrong, but it does have its attractions. How do we tell what is a religion and what's not if we can't require a belief in God, or judge the sincerity of belief? That religions hold regular Sunday services is not a particularly satisfying answer. I think the Strayhorn court did a pretty good job and its conclusion is probably right, but isn't its methodology troubling? Posted by David Cohen at March 8, 2003 11:02 PM
I almost got in a fistfight in law school arguing that all the First means by "religion" is the monotheisms. That seems a perfectly reasonable reading.
Posted by: oj at March 8, 2003 11:31 PMI think that the subject is actually "establishments of religion", but where's that going to get me?
Posted by: David Cohen at March 9, 2003 12:02 AMSince the issue here is only Ethical Society's tax status, an easy way to evade the issue is to simply drop specific tax exemptions for religious groups. It's also better policy: I see no reason why religious groups should be treated differently from other non-profit groups.
Posted by: Peter Caress at March 9, 2003 10:19 AMPeter:
Obviously because the government could use taxation as a weapon to attack religious institutions.
Not that I object -- I don't -- but is this turning into another Volokh Conspiracy or something? I count four posters now.
Posted by: Chris Badeaux at March 9, 2003 2:14 PMChris --
If I signed my posts "dj", would that help?
Secularism IS a religion according to religious conservatives. That is how they try to keep Darwinism & Secular Humanism out of schools. So make up your minds! Be consistent!
Posted by: Robert D at March 9, 2003 3:35 PMRobert D--
I'm not sure I understand your point.
I don't feel much compulsion to make my own views consistent, let alone hew to views expressed by various people I'm lumped in with.
As a noted in the post, I have no problem with the Ethical Society being considered a religion for First Amendment purposes, but what is a religion? If we're going to accomodate them, or wall them off from government, we'd better figure out what they look like. Here are some possibilities. A religion is:
whatever adherents decide is a religion;
whatever non-adherents decide is a religion;
a belief that the universe was created;
a belief in a being or beings not bound by the observed laws of physics;
any explanation for man's existence;
any attempt to explain man's relationship with the physical universe;
any belief in a non-material aspect of mankind; or
a belief in one God who first revealed himself to Abraham.
It would be nice to be able to pick one, but wouldn't the First Amendment prohibit us from doing so?
David: No, in all likelihood, it would just confuse me more.
Posted by: Chris Badeaux at March 9, 2003 10:46 PMDavid -
The 14th Amendment presumably incorporates the free exercise of religion under the privileges or immunities (i.e. rights or freedoms) clause; it also gives Congress the power to make laws enforcing the 14th Amendment; therefore Congress would seem to have power to define the scope of federal enforcement of the free exercise clause against the states.
If one agrees that the establishment clause is a federalism clause, as Akhil Reed Amar and others have argued, then it cannot be applied against the states.
Therefore, it seems to me that there ought in principle to be no muddle here, at least in a case in which the parties are a private party and a state government.
If our Republic is grounded on rights that flow from the Creator, then why should we assume that religious protections are intended to extend to any group that does not recognize that Creator?
Posted by: oj at March 9, 2003 11:25 PM