Garnett et al. on Tax-Exempt Status and Religious (and Other) Organizations

Should government insist that all private organizations comply with its own sense of the good? Most people, I think, still agree that the answer to this question is no. However strongly they feel that those public values are the right values, and however devoutly they may hope that all people and all groups come to share them and to act accordingly, they still believe for various reasons--not least a sense that the public-private distinction, however imperfect and vulnerable to critique, represents an important value of its own--that government should not and perhaps cannot rigorously or ruthlessly enforce what Nancy Rosenblum has called a "logic of congruence" between public and private organizations. To quote Robert Post, they reject the view, one that is nonetheless attractive to many more stringent liberal egalitarians, that "cultural conflict about essential moral values should be suppressed" by bringing private groups in line with public values. For many pluralists, to quote Post again, it is particularly important that the First Amendment--and in the view of some, not only that amendment but broader constitutional values and limits--"establish antihegemonic domains in ways that liberal egalitarian values never can." 

Currently, this issue is again something of a flashpoint in law and politics. That is not surprising to those who think there is something to the idea that we are living through something of a revival of the disputes of the 1990s. Although I think most people still reject the logic of congruence--many more, if we step outside of the usual elite, privileged province of the professional/managerial class, including academics--I dare say that within that province, the momentum right now is on the other side. And for most if not all of us, there are limits. Some of the most difficult cases involve those in which private organizations receive governmental aid. Still further out on the edge are cases in which private groups do not receive direct subsidies or participate directly in government programs, but simply receive the same tax-exempt status that many groups do. This is one area that has become more contested of late, most obviously but not exclusively in the area of sexual orientation equality. 

Our friend and fellow Prawfs writer Rick Garnett discusses that question in a new editorial co-written with John Inazu and Michael McConnell. The title, which I gather its writers did not choose and might not be completely comfortable with, is "How to Protect Endangered Religious Groups You Admire." They argue, in brief, that we should, at a minimum, be willing to protect religious non-profits that provide significant contributions to the public good despite their now heterodox views.

Read the whole thing. Feel free to disagree. I will add two points. I agree, in sensibility at least, with a point made by Marc DeGirolami in a recent post about the editorial: "We use the language of 'exemption' when we speak of the taxable status of nonprofits, but it would be better instead to think of their nontaxable status as marking a boundary of the government's power to tax." Reasonable disagreement is available about whether "power" is an apt word here, but for those who believe that whatever the extent of state power, it ought not lightly be exercised in a way that circumscribes civil society and a vibrant pluralism, the sensibility is right. Second, it ought not be only pluralists, and certainly not only social conservatives, who support these arguments. This is an argument that liberals ought to be taking seriously now, especially as progressive thought continues to drift in a more illiberal direction.