Stadium's charge an entrance fee and earn money, There is no charge for the public to use their playground.
That's a distinction without a difference.
I disagree that withholding taxes is a
subsidy.
Of course it is. It is money that the state waives it's right to and that the church does not have to pay. That is a clear form of subsidy.
If they provide a service indistinguishable from those who do pay taxes and provide the same service, then a secular government cannot refuse them.
Agreed, but the service is not indistinguishable, if nothing else, it creates good will toward the church that is part of it's mission of conversion.
In that I believe that if the church provides a service indistinguishable from others who provide the same service, then a secular government should not refuse them.
I have just falsified your belief, thus a secular government
should refuse them.
It seems part of the problem here is that everybody agrees that the children's safety is important. I would expect any entity to which children are entrusted to provide both security and a safe surface. So this school, like any other, must control the usage and access some of the time.
But that isn't the real point here. Any other private club, tax exempt or not, would have the same obligations. The question is whether or not a tax exempt club has the same rights to taxpayer funded grants as the rest of us do.
I am saying that they don't. Not because they are religious, my opinion is entirely secular. I think the VFW is also a tax exempt organization, I wouldn't expect tax paying nonmembers to foot the bill for their improvements either.
Tom
The VFW would be eligible since the state constitution does not prohibit it as it clearly does in the case of the church.
Many of the comments here are so very disconnected from this case and from the case law on which this case should be decided. If you were to read the briefs, you would see that taxes are not a relevant issue in this case. All 501(c)(3) organizations are considered charitable organizations, and are under the same tax structure. The Missouri policy singled out religious nonprofits for a special penalty in excluding them from the Scrap Tire Grant Program. Among the questions at oral arguments was how exactly to distinguish religious nonprofits from non-religious ones. It's a good question that no one here has addressed.
The case law seems to me consistent with Brennan's proposition in McDaniel, that “government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits.” If anyone knows of any case in which the Court held that governments may distinguish and exclude religious nonprofits from the grants that are provided to other nonprofits, please cite it.
The tax issue is a bit of a red herring. Let us keep in mind that words of Daniel Webster and John Marshall in McCulloch v. Maryland.Webster, in arguing the case, said: "An unlimited power to tax involves, necessarily, a power to destroy." In his decision, Chief Justice Marshall said: "... the power of taxing ... by the States may be exercised so as to destroy it, is too obvious to be denied." and that: "the power to tax involves the power to destroy [is] not to be denied." Churches are not tax exempt so as to encourage their "good works" but rather to remove a weapon that the government could wield selectively against them. Similarly it is bad public policy to permit churches to become dependent upon public funds in any form as that will, inevitably, lead to government control.
No, that isn't the question in this case. The question the Court will answer is this:
Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.
If that is the question, a simple issue of inclusion vs. exclusion, the answer is simple: no, as long as all similar religious organizations are similarly excluded. The clear distinction has already been made in the state constitution.
The Missouri policy did just the opposite in this case--it singled out religious nonprofits for a special exclusion from a grant program, for no rational reason (much less for a compelling governmental purpose). The stated purpose of the grant program was to reduce the number of tires in landfills and to make playgrounds safer for children. The purpose of the grant program is served perfectly by including religious nonprofits.
There we differ, there are at least three compelling governmental purposes: eliminating governmental ability to destroy religious organizations, eliminating dependence of religious organizations on the government, and not using governmental resources to advance the agenda of a religious organization.
