From May 26, 1962, an article from the legendary Robert Drinan, S.J., then the dean of Boston College Law School, on a prickly matter of church and state. Then, as now, the tax exemption of religious institutions was virtually unchallenged:
On April 16, 1962 the United States Supreme Court refused review to a unanimous ruling of the Supreme Court of Rhode Island which has sustained tax exemption for religious bodies. The nation’s highest tribunal, Mr. Justice Black dissenting, said that no “substantial Federal question” was involved in the December 13, 1961 decision of Rhode Island’s highest court affirming the constitutionality of tax exemption for church and other properties.
Although refusal of review by the Supreme Court does not necessarily imply approval of the decision below, it is significant that six Justices of the Supreme Court affirmed for the first time in modern Supreme Court jurisprudence the principle that no “substantial Federal question” is involved in State laws granting tax exemption for buildings, lands and estates which are used for religious purposes.
A clear-cut factual case presented the Supreme Court of Rhode Island with an unavoidable challenge to the constitutionality of exemption from property taxes granted to churches in the city of Cranston. The plaintiff, the Central Finance Corp., owned real property in Cranston which, assessed in 1959 at $24,780, was taxed at $842.52. If exemptions from Cranston’s property tax had not been given to religious and other bodies in that city, the plaintiffs taxes would have been concededly diminished by $30.42. Is the plaintiff, as he strenuously urged, being required to support religion in violation of the Rhode Island Constitution, which states that “no man shall be compelled to frequent or to support any religious worship, place or ministry whatever. ..”? And is the tax exemption granted in Cranston contrary to the U. S. Supreme Court’s interpretation of the First Amendment in the 1947 Everson decision where the Court stated that neither “a State nor the Federal Government . . . can pass laws which . . . aid all religions”?
Rhode Island’s Supreme Court answered No to both questions, stating the following among other reasons:
1. The section of the Rhode Island Constitution referred to by the plaintiff was adopted by the people of that State in the year 1842, with the full understanding that tax exemption for religious purposes had always been a widespread and common practice in Rhode Island.
2. No judicial decision after the Everson-McCollum-Zorach line of cases, decided by the U.S. Supreme Court in the years 1947-52, has taken the view that these decisions, however rigidly they affirm the separation of Church and State, render unconstitutional tax exemption for religious purposes.
3. Tax exemption granted by Rhode Island law for the “estates of the president, officers and professors of Brown University, to the amount of $10,000 in any one estate,” was upheld by the Rhode Island Supreme Court in 1897 in an opinion affirming the existence of the broadest power in the legislature with respect to the granting of tax exemptions. The people of Rhode Island, furthermore, adopted in Article XXX of the Amendments to the Rhode Island constitution tax exemptions for veterans and their widows as well as Gold Star parents.
4. The “incidental benefit” derived from tax exemptions to religions organizations is “not such as to constitute direct participation by State authorities in the promotion of religions education. . . .”
Thus, the U. S. Supreme Court has ruled that the above reasons for dismissing the plaintiff who can prove an actual loss of $30.42 to himself because of tax exemptions to religious groups do not raise any “substantial Federal question.”
The apparent contradiction between the universally accepted practice of tax exemption for religious groups and the strict no-aid-to-religion interpretation of the “establishment” clause suggests some of the complex and contradictory currents of thought which have always been present in Church-State relations in American history. Tax exemption, as Dean Willard L. Sperry of the Harvard Divinity School so correctly stated in his Religion in America, is “the most important governmental recognition of religion in America.” Tax exemption, none the less, continues almost unchallenged. No group, however ardently dedicated to the absolute separation of Church and State, has announced any frontal opposition to the public policy underlying the statutes in all of the States granting tax exemption for religious purposes.
It may be that the only possible ultimate justification for tax exemption to religious groups is a public policy which would favor religion and encourage religious bodies. Perhaps even the most extreme advocates of an impenetrable wall between Church and State hesitate to affirm that such a public policy is really undesirable.