Establishment Clause Jurisprudence and Douglas and Walz v Tax Commission and New York and entanglement

In this 8-1 decision the Court, over the vigorous dissent of Justice William O. Douglas, held that real property tax exemptions for property owned by religious organizations and used solely for religious worship did not violate the Establishment Clause. The new Chief Justice, Warren Burger, wrote for the Court and, while still clinging to the doctrine of separation derived from Everson, brought another argument to the fore--state entanglement with religion--that would become one of the three prongs of the Lemon test articulated in 1971.

The Case

The facts of the case are neither significant nor complicated. An owner of New York real estate sought an injunction to prevent the NY Tax Commission from granting statutorily permitted tax exemptions for property used solely for religious purposes. This case was the occasion, however, for extensive articulation of the way that historical practices impinge upon the Court's decisions in Establishment Clause cases. First, however, the Court repeated principles of Establishment Clause jurisprudence.

After confessing that the religion clauses of the First Amendment are not "the most precisely drawn" clauses, and that the Court has struggled to find a "neutral course" between the two clauses, the Chief Justice said that there was room for "play in the joints productive of a benevolent neutrality" between church and state. This metaphoric liberty then characterized the rest of the Chief Justice's opinion. He didn't want to construe the Clause "with a literalness" that would undermine the constitutional objective as illuminated by history; indeed the metaphor he landed on, entanglement, has served the Court well since 1970.

The three linchpins of his argument are that excessive entanglement does not occur through this exemption; that the exemption creates only a "minimal and remote involvement" between church and state that involves no "nexus" between the two; and that historic practice of all 50 states stretching back to the near origins of the Republic allowed such exemptions. In addition, both his opinion and the concurrence of Justice Brennan stress the "secular" benefits to society of these exemptions: these institutions foster "moral or mental improvement" and are "beneficial and stabilizing influences in community life."

Rather than seeing tax exemption as a benefit enjoyed in a discriminatory way by religions, he argued that exemption constitutes a reasoned and blalanced attempt to guard against the "latent dangers" inherent in the imposition of a property tax. Then, he used a word that would become the watchword of a different approach to the question in the 1980s and 1990s: "The limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise clause." Then, with a pronouncement that smacks more of conclusion than of argument, he says, "We cannot read New York's statute as attempting to establish religion; it is simply sparing the exercise of religion from the burden of property taxation levied on private profit institutions."

Concurrence and Dissent

Justice Brennan's lengthy and scholarly concurrence uses the historical method of Justice Wiley Rutledge in Everson to argue that the line between permissible and impermissible "establishments" is one which "accords with history and faitfully reflects the understanding of the Founding Fathers." Justice Brennan then takes readers on a detailed tour of the way that tax exemptions for religious bodies were part of the law of Virginia and New York since the 1780s. Thus, while Virginia was hammering out its understanding of separation of church and state, it did so while honoring the practice of tax exemption of real property used for religious purposes. The absence of any objection of Madison or Jefferson to this practice is "significant." "It is unlikely that two men so ocncerned with the separation of church and state would have remained silent had they thought the exemptions established religion." Though historic practice is not necessarily determinative, it is strongly suggestive of constitutionality.

Justice Douglas was so vigorous in dissent possibly because he had to do a mea culpa for his change of heart since Everson. In that case he voted for the majority, but here he sought to distance himself from that vote by stressing the difference between Everson and Walz and recasting the tax exemption as actually a financial subsidy from state to church. If the exemption can be convincingly so characterized, an exemption stands foursquare in contradiction to Madison's language in his 1785 Memorial and Remonstrance, which undermined the 1784 Act to provide state financial support for Christian teachers. He quotes a 1933 Brookings Institution Report to the effect that "Tax exemption, no matter what its form, is esssentially a government grant or subsidy." He concludes his opinion by saying that if believers are entitled to public financial support through the tax exemption, then so are nonbelievers. Because believers and nonbelievers are treated differently because of their faith, the tax exemption law violates the Establishment Clause of the First Amendment.