Many thanks to Mark Movsesian and Marc DeGirolami for letting me return with a couple of guest posts.

I’ve been intrigued by some recent posts on this blog and how they confirm my long-held view that the normative decisions we make with respect to the law’s treatment of religion are deeply intermeshed with cognitive choices we make — how we “see” and understand religion.  Religious phenomena don’t fit easily or self-evidently into the mental maps by which we divide the pieces of the secular world.  All we can do is approximate, and those approximations matter.

Let’s begin with Mark’s fascinating and wonderfully observant recent post about an ad for the Marble Collegiate Church that he recently saw in a New York City subway.  The ad itself was unremarkable, touting Marble Collegiate as “Church the way you always hoped it could be.”  (Marble Collegiate itself is more remarkable, founded in 1628 as a Dutch Reformed congregation and serving in the 20th century as Norman Vincent Peale’s pulpit for some 50 years.)  But the ad included a prominent disclaimer form the MTA (the local transit agency) taking up the bottom third of its precious space: “This is a paid advertisement sponsored by Marble Collegiate Church.  The display of this advertisement does not imply MTA’s endorsement of any views expressed.”  What gives?

It turns out that the MTA was not singling out this church or even religion in general.  The disclaimer was part of a general policy that applies to any “viewpoint ads on political, religious or moral issues or related matters.”  The policy, in place since 2012, was the agency’s response to a federal court decision that struck down its previous rule barring any ads that contained “images or information that demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation.”  (The suit was spearheaded by Pamela Geller, a notoriously shrill and extreme anti-Muslim propagandist.)

So there’s no obvious anti-religious bigotry in the MTA’s policy requiring a disclaimer.  (Though see below.)  If anything, the policy was motivated by the agency’s concern that it would be identified with anti-religious bigotry.

Still, there’s something a little odd about applying the policy to the Marble Collegiate ad, which is not so much a “viewpoint ad” as a sales pitch.  The ad touts Marble Collegiate as “Church the way you always hoped it could be” much as this Florida condominium advertises itself as offering “life, the way you always hoped it would be.”  (For that matter, notice this tech firm offering software development “the way you always hoped it could be” and this home health agency similarly offering employment to nurses “the way you always hoped it could be.”  They all had the same advertising agency, I guess.)

The difference, of course, is that when all is said and done, Marble Collegiate is still a church engaging in religious speech.  And the MTA is probably right, I guess, not to try to distinguish this sort of religious message from more explicitly propositional, theological, or ideological religious speech.

But there’s still a deeper issue here.  As I point out repeatedly to my class on the “The Law of Charities and Nonprofit Organizations,” churches pose a deep paradox to the law.  On the one hand, they are the quintessential charities, whose traditional activities (including educating the ignorant, feeding the poor, and tending for the sick) helped define the sorts of activities we still consider paradigmatically “charitable.”  On the other hand, if our law were to look at churches functionally, unsentimentally, and without our usual reluctance to differentiate too much among them, it might conclude that they often resemble “mutual benefit” clubs more than “public benefit” charities.  (The various opinions in Walz v. Tax Commission tie themselves in knots over exactly this dilemma.  The English, being less sentimental than we are about such things, do require that religious organizations demonstrate a palpable “public benefit” to be classified as charitable.)

In general, it is very much to the advantage of churches — legally, financially, and in the currencies of prestige and social capital — to be treated as charitable organizations.  And it is also generally to the advantage of churches for their speech — whether they are expressing their convictions or simply hawking themselves — to be grouped  with “political” and “moral” speech.  It might even be worth being swept up in the MTA’s policy requiring disclaimers on “viewpoint ads.”

But, wait, there’s more.  In a separate post, Marc DeGirolami very powerfully (and sensibly) asks why other ads, including those pushing “doubtful cosmetic treatments and liquor delivery services,” shouldn’t also be treated as “viewpoint ads” requiring disclaimers.  Don’t these other ads, Marc asks, also express “a certain viewpoint with attendant moral underpinnings?”

Of course, Marc is right about the moral, political, and even religious implications of almost all ads.  Feminists, for example, have for a very long time interrogated (and debated among themselves) the deeper political and cultural meaning of our beauty-obsessed advertising culture.

Nevertheless, the MTA’s policy is not just arbitrary.  It relies on a deep divide in our law between “commercial” and non-commercial speech.  In the context of subway ads, that distinction might suggest, if nothing else, that riders will simply be less likely to ascribe the message behind commercial ads to the MTA itself. Beyond that, though, commercial advertising is understood — for better or worse — to be selling rather than opining.  Advertising, as the philosopher Harry Frankfurt emphasizes, is a quintessential form of “bullshit,”  which is neither intended nor understood to bear any particular relationship to claims about truth.  (Frankfurt also puts much of our political discourse in that same category, but be that as it may.)   Advertising does express viewpoints, and those viewpoints are often worth criticizing.  But those viewpoints are also, as everyone knows, expressed only in the service of selling a product.  Moreover, we all tend to divide the world between the realm of market relations, which follows one set of rules, and the realm of non-market relations, which follows a different set of rules.

Again, there’s a bit of trade-off here.  Commercial speech does not enjoy full First Amendment protection.  But it is also left out of the MTA’s rule requiring disclaimers on “viewpoint ads.”

The bottom line:  The MTA treats promotional ads for churches as “viewpoint ads” even when they are, in effect, simply touting membership in a club.  And it treats commercial ads as uncontroversial even when they carry obvious and even profoundly destructive messages.  But this is all the product of deep conceptual categories that help organize both the law and our lives.

Could these categories be different?  Of course.  But that doesn’t make them any less powerful.

In the long run, the mental maps by which we divide up the world are both open to criticism (and deconstruction) and open to change.  But we’d be in a sorry state if we abandoned such mental maps entirely.

Even in the short run, can taking these maps too seriously, or understanding them too simplistically, sometimes lead us down the wrong path?  Yes.  In fact, that’s the topic of my next post.