One of the themes I develop in Collective Liberty is how the secularization of our society will weaken statutory protections for religious organizations.

YouGov has released a poll that reflects this secularization trend.

The American public is split right down the middle on the thorny issue of whether or not religious organizations should be exempt from taxation. 40% of Americans think that they should be exempt, while 40% think that they should not be. There is a strong partisan element to opinion on this issue, though a significant minority among both Republicans and Democrats disagree with the majority opinion of their fellow partisans. Democrats oppose tax exempt status for religious organizations 52% to 32% while Republicans support it 57% to 25%. Independents are effectively split, with 40% saying that religious organizations should not be tax exempt and 36% saying that they should be.

This trend speaks to the the thorny issue of tax-exempt status for religious organizations that do not perform same-sex marriages. Justice Kagan aptly explained during oral arguments in P that no church or temple can be forced to perform same-sex marriages–that would be a violation of the free exercise clause. But as an exchange between Justice Alito and the Solicitor General elucidated, whether such houses of worship can maintain their tax-exempt status is “going to be an issue.” Looking abroad, a think tank in New Zealand has already proposed eliminating religious organizations automatic tax-exempt status.

I don’t think this “issue” starts at the top with the IRS eliminating federal tax-exempt status. Rather, I think this begins with local municipalities voting to rescind sales and property tax exemptions–these are true lifebloods to churches, synagogues, and mosques in areas with high sales and property taxes. We are already seeing jurisdictions exclude religious organizations from supervising adoptions, because they will not place children with same-sex couples. In certain progressive enclaves, even today, I can see a city counsel, approving a measure that denies tax-exempt status to any non-profit that does not comply with the local non-discrimination ordinance. Ultimately, progressive states that have RFRAs on the books will soon repeal them (I’m looking at you Connecticut), and then we are left only with the Free Exercise clause as envisioned by Justice Scalia in Smith–which provides very little protection at all.

This isn’t even a 50-50 issue today. If a majority of Democrats today oppose tax-exempt status, that number will likely continue to grow as Obergefell becomes more settled, and the notion strengthens that the government should not subsidize to the tune of billions of dollars a year those who do not conform to prevailing societal norms.

 

In January, I will be speaking at the AALS Constitutional Law Panel on “Resistance and Recognition,” alongside Erwin Chemerinsky (U.C. Irvine), Charlton C. Copeland (Miami), Martha L. Minow (Harvard), and Rachel F. Moran (UCLA). Here is a description of the event.

With the Supreme Court reaching a tipping point in terms of its composition, and the Court’s opinions renegotiating the parameters of reproductive justice, racial justice and same-sex marriage under the 14th Amendment, voting rights, political equality, and the scope of federal authority relative to state authority, our goal with this program is to create a space to discuss the overall issue of resistance and recognition. What does resistance and recognition mean? Are they even possible, and if so, under what conditions? Are we limited to the forms of resistance and request for recognition pursued in the Civil Rights Era? Does resistance require direct negation of government policy, regulation, or structures? Or can/should we expand our understanding to include things like a transvaluation of constitutional memory or a reconstruction of subjectivity as a means to assert rights for recognition under the Constitution? The participants in this panel will offer a variety of perspectives on thinking about resistance and recognition under the Constitution. The larger aim of the panel is to open up a conversation about the possibilities for the formation of a discourse of resistance and recognition under the Constitution in the 21st century.

What looks to be a fascinating panel is very much in keeping with the topic of Collective Liberty.

Update: Pope Francis aptly summarizes the trend:

Until recently, we lived in a social context where the similarities between the civil institution of marriage and the Christian sacrament were considerable and shared.  The two were interrelated and mutually supportive.  This is no longer the case.