Author Archives: Marc O. DeGirolami

Welcome to Gerald Russello

Mark and I are delighted to welcome Gerald Russello to the Forum as our guest Gerald Russello
for the next month or so. Gerald is a partner at an international business law firm, where he has specialized in securities enforcement and regulatory matters. But he also has a “second life” as a frequent and thoughtful commenter on many matters of immediate concern to our readers. I’ve learned greatly from his incisive essays. And he is the tireless editor of The University Bookman, the arm of the Russell Kirk Center For Cultural Renewal devoted to essays and reviews about books that “diagnose the modern age and support the renewal of culture and the common good.”

Welcome Gerald!!

Garnett on Tax Exemptions for Religious Institutions

Rick Garnett has a very good short piece over at the Washington Post on a newly controversial issue: tax exemptions for religious institutions. It’s one in a series of short essays on the subject. Here is the beginning:

Instead of asking whether churches and religious organizations deserve to be tax-exempt, we should ask why governments should be able to tax them at all. Taxation, after all, involves interference by the state, and in a free society such interference needs to be justified.

The power to tax involves the power to destroy, as Daniel Webster argued in the Supreme Court nearly two centuries ago. While our government does have the right to levy taxes, it’s only because “We the People” have authorized it to do so — in order to raise the funds needed to provide for the common good. But should we give our government this “power to destroy” over churches and religious institutions?

Rick contends that the answer to this question is ‘no.’ For a contrary view, contending that because Americans are “abandon[ing] organized religion,” it is time to tax churches, see this effort in the same series by David Niose, legal director of the American Humanist Association. Mr. Niose’s essay contains a few errors, such as the suggestion that a “non-Christian” homeless person would be denied care by a Christian charity on religious grounds. But it does accurately reflect the increasingly popular view that tax exemption for religious institutions is an “extraordinary handout.”

For some reflections of my own on the historical premises of tax exemption for religious organizations, and the breakdown of those premises (as reflected, in part, in Niose’s piece), see this post.

Now Comes the “Museum of the Bible”

This story reports on the arrival in Washington, D.C. of a new museum, the “Museum of the Bible,” whose collection will include “pieces of the Dead Sea Scrolls, a Gilgamesh tablet, Elvis Presley’s Bible and about 850 manuscripts, 12 of which are in Hebrew and come from China’s Jewish population. A third of the material may be considered Judaica, related to Judaism and the Old Testament, including torahs that survived the Spanish inquisition and the Nazis.”

Notwithstanding this scattershot miscellany, the story seems determined to find a controversial church-state angle. It reports that the museum is the creature of Hobby Lobby President Steve Green and that its proposed location near the Mall might well overshadow a downtown skyline that is “dominated by monuments to men.” Objections to the museum appear to combine the aesthetic, the religious, and the ideological: e.g., “To many in the scholarly community, the museum seems like an oversize piece of evangelical claptrap”; “The museum will be a living, breathing testament to how American evangelicalism can at once claim it is under siege from secularists, the LGBT rights movement, or feminism — yet also boast of acquiring a prime private perch, strategically located at the nation’s epicenter of law and politics.”

But perhaps all of this is too much fuss over a development that secular critics of

"Creation" Museum

“Creation” Museum

the museum might welcome. Artifacts that get their own museums are probably on their way out culturally. Museums generally involve subjects and events that are in some way closed affairs–affairs to be studied and reflected on retrospectively. Proust recognized as much when he spoke of the movement to turn French cathedrals into museums in the early 20th century, which he pronounced “the death of the Cathedral.”

As for the American religion that needs defending against the assault of the museum, that’s nearly perfectly summarized in the first paragraph of the story (though the final word “instead” seems entirely out of place):

In Washington, separation of church and state isn’t just a principle of governance, it’s an architectural and geographic rule as well. Pierre L’Enfant envisioned a national church on Eighth Street. A patent office was built on the site instead.

Announcing the Third Biennial Colloquium in Law and Religion

The Center for Law and Religion at St. John’s Law School isCLR Logo pleased to announce its third biennial Colloquium in Law and Religion, scheduled for Spring 2016. This seminar invites leading law and religion scholars to make presentations to a small audience of students and faculty.

The following speakers have confirmed:

February 1: Brett G. Scharffs (Brigham Young University School of Law)

February 16: Robin Fretwell Wilson (University of Illinois School of Law)

February 29: Robert P. George (Princeton University)

March 14: Mark Tushnet (Harvard Law School)

April 4: Justice Samuel A. Alito (United States Supreme Court)

April 18: Elizabeth H. Prodromou (Boston University & Tufts University Fletcher School of Diplomacy)

Topics will be announced at a future date.

For more information or if you would like to attend the sessions, please contact the colloquium’s organizers, Marc DeGirolami ( and Mark Movsesian ( For information about past colloquia, please click here, Spring 2012, and here, Spring 2014 (hosted with Villanova Law School).

The Conditions in Which Private Groups May Perform Civic Functions

Here’s an insightful post by Paul Horwitz on the Garnett, Inazu, McConnell essay that I commented on a few days ago. Paul introduces his post with a discussion about contemporary attitudes toward government’s “insist[ence] that private organizations comply with its own sense of the good,” and he claims that though many people continue to believe that such insistence is illegitimate, “the momentum” within the elite classes (or call them how you will) “is on the other side.” I am always pleased when Paul shares at least some of my sensibilities.

One more thought connected to Paul’s comment on these interesting matters. Tax exemption for private nonprofit organizations made a certain amount of sense when two conditions obtained: (1) the size of government, and the scope of its role in American social life, was a good deal smaller than it is today, thereby both necessitating and making space for the involvement of private nonprofit institutions for the support of civil society; and (2) the view that these private institutions could and should play an independent role in shaping civil society in accordance with their own senses of the political and moral good, senses that might diverge in important respects from the state’s.

The conditions are mutually reinforcing and mutually dependent. As government becomes larger, both the need and the space for private institutions shrinks as does the perception that private institutions might actually have something of value to say in the way civic formation that is very different from what the state says. The “need” question is complex, because the breakdown of condition #1 would not necessarily mean that we would see fewer private institutions performing the sort of work that they had performed in the past. Indeed, the increase in the size and scope of the government’s role might itself necessitate greater numbers of private institutions to help it fulfill its enlarged offices. But we should expect to see a sharp decline in private institutions engaged in civic formation whose values differed sharply from the government’s. Whatever public/private partnerships endured after the fall of condition #1 could not continue to operate under the premises of condition #2. One might say that this is to be expected–indeed, it might be said to validate a hoary separationist rallying cry: if private institutions want to be in the business of performing civic functions, they ought to expect pressure to conform to the government’s preferred views of the civic, political, and moral good (a footnote: I’m always struck by how decidedly Protestant the theology supporting these kinds of separationist arguments seems). All true, though one could offer in return that such increased pressure is not inevitable but the product of a historical contingency: the breakdown of the two conditions above.

Biblical Intratextualism

Those familiar with some of the schools of constitutional interpretation will know what is commonly called the intratextualist or structuralist method of divining meaning. The idea is to understand the meaning of a word or phrase by searching out and comparing like words or phrases in the same document in order to arrive at a unified meaning. There is a kind of horse-sense fundamental principle sitting somewhere beneath the method: words used at different points in the same document ought to mean the same thing throughout the document, and variations on word usage ought to be understood as signifying difference of meaning. The meaning of the words in the document should render the document a coherent whole. The several usages of “necessary” in the Constitution, for example, are useful in teaching the virtues and vices of intratextualism.

But intratextualism is not just for constitutions. It is a more general approach to extracting meaning from text. Here’s an interesting passage from Robert Louis Wilken’s The First Thousand Years: A Global History of Christianity that describes early developments in Christian interpretation of the Old Testament. This is from the chapter on the great Origen of Alexandria (p.62):

Origen was to spend the rest of his life in Caesarea, and his most mature works were written there, including many of his biblical commentaries. He was the first Christian to write scholarly commentaries on books of the Old Testament, such as Genesis and Psalms, as well as on the New Testament, including the Gospel of John and the Epistles of Paul. Two features stand out in his commentaries: a deep respect, even reverence, for the words of the text, and the conviction that a spiritual meaning could be drawn from every passage of the Bible.

Consider his interpretation of the following passage from the book of Deuteronomy, for example: “If you walk in my statutes and observe my commandments and do them, then I will give you your rains in their season, and the land shall yield its increase, and the trees of the field shall yield their fruit.” (Deuteronomy 11:13-17). Origen begins by putting questions to the text. If “rain” is given as a reward for those who keep the commandments, how does one explain that this same rain is given to those who do not keep the commandments, and “the whole world profits from the common rains given by God”? This leads him to propose that the term “rain” can have another sense than water from the heavens, because in this passage it seems to refer to something that is given only to those who walk in God’s statutes and observe the divine law. It signifies something given “only to the saints.”

With the puzzling use of the term “rain” in the passage as a starting point, Origen proceeds to examine the term “rain” elsewhere in the Scriptures and discovers that it is sometimes used in a metaphorical sense. Moses, for example, said, “May my teaching drop as the rain, my speech distill as the dew” (Deuteronomy 32:1-2). In this passage rain is a metaphor for Moses’s words, and hence of the word of God. That is to say, in the Scriptures “rain” can have another meaning than the plain sense.

Garnett, Inazu, and McConnell on FADA and Religious Nonprofits

very interesting comment authored jointly by Rick Garnett, John Inazu, and Michael McConnell on the recently introduced First Amendment Defense Act. A bit:

Today, tens of thousands of religious organizations, and tens of millions of Americans, continue to believe and teach that the proper understanding of marriage is a union of one man and one woman. But they do far more than believe and teach this and other views.

They also give food, clothing, shelter, counsel, and comfort to millions of Americans in need. They offer some of the most important and desperately needed health, educational, and social services in the country. And they provide billions of dollars and thousands of full-time workers for international relief aid that serves vulnerable migrants, refugees, and persecuted minorities. The work of religious organizations has long been and continues to be central both to religious believers’ lives and to the welfare of others. Our communities—and, indeed, communities around the globe—would be much worse off without these organizations and their faith-informed good works.

Despite the crucial role that religious organizations and individuals have long played in our country, some voices now suggest that they and their work are somehow tainted because of their beliefs about marriage and sexuality. Some argue that the time has come to push religious believers out of the public square and confine them to the quiet, private realm of personal prayer and worship. This despite the Supreme Court’s recent decision in Obergefell v. Hodges, which not only required states to legally recognize same-sex marriages but also said, “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”

Nonetheless, because of their traditional views on human sexuality, religious organizations have already been threatened with heavy-handed government action….

Some members of Congress have now introduced the First Amendment Defense Act (FADA) in an effort to ensure that overheated rhetoric and political opportunism do not endanger the important work of faith-based organizations. The core of FADA would require the federal government to honor its longstanding commitments to treat all such organizations with an even hand. It would prevent federal officials from attempting to strip tax-exempt status, from denying equal access to federal facilities and entitlements, or from taking adverse actions related to licensing or accreditation….

We understand that new versions will address many or all of these issues. We think the best approach is to tailor FADA to the core area of concern: religious nonprofits. That focus would serve the cause of religious freedom by making it more likely that this important legislation can move forward.

One thought that has occurred to me on the issue of “tax exemption” of nonprofit institutions is that the entire discussion seems askew. It generally begins from the premise that the government can and should be able to tax anyone and anything that it pleases. The tax base is limitless. Amenability to taxation, however, ought not to be the default posture, as if the government simply gets to decide at its pleasure and election whom and what it wishes to tax. Income taxation only follows from the fact of income generation, and though nonprofits generate income they do not distribute it to individuals for private use but spend it in ways that promote public functions and purposes. Nonprofit actors are not appropriate objects of this kind of taxation at all. Consider, for example, the way in which the Connecticut Supreme Court in an 1899 decision discussed Yale University’s tax exempt status (not an income tax decision, of course):

The non-taxation of public buildings is not the exception but the rule. The corporations, whether municipal or private, which own and are by law charged with the maintenance of such untaxed buildings, are not the recipients of special privileges, in any sense obnoxious to the law. The seats of government, State or municipal, highways, parks, churches, public school-houses, colleges, have never been within the range of taxation; they cannot be exceptions from a rule in which they were never included.

Yale University v. Town of New Haven, 42 A. 87, 91 (1899). These institutions are, as the authors of the piece put it, actors within “civil society” that should in general not be touched by the government’s taxing power. Moreover, a government decision not to tax is emphatically not the same as a government decision to grant money or subsidize. 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.

[Update: I’ve amended some things in the post for clarity.]

Neutrality Partiality

I have a short essay on the Library of Law and Liberty site involving the idea of religious neutrality when it comes to American public and private education. It was occasioned in part by the Colorado Supreme Court’s recent decision invalidating, pursuant to its state Blaine Amendment, a local program that would have made tuition scholarships available to certain students, which the students could then use to pay to attend private religious and nonreligious schools. I criticize the decision but use it to talk about certain broader issues. Here’s a bit from the conclusion:

Focusing on these details of Colorado law, however, obscures certain larger questions. If “sectarian” truly does mean “Catholic,” and even if it means, as Black’s Law Dictionary says, “of, relating to, or involving a particular religious sect,” then any state Blaine Amendment with this language would be subject to constitutional challenge under the Supreme Court’s free exercise law. “Sectarian” does not sound particularly neutral; or, to the extent it does, it sounds in the rather counterintuitive neutrality of state-endorsed religious hostility. Yet even this perspective on the question of neutrality passes over the colossal non-neutrality of the government’s systematic and exclusive funding of its own putatively religion-neutral schools, to the detriment of able students—many of them from poor and educationally underserved communities—who would greatly benefit from private religious schooling. Neutrality between religion and non-religion seems to demand a plainly partial allocation of resources. Or, one variety of government neutrality—no funding of religious schools—obstructs the achievement of another—educational opportunity.

The question of the place of religion in American educational life—whether in the nation’s public schools or in its position on private religious schools—will not be answered by neutrality talk, for the fundamental reason that nothing in the projects of American education is or ever has been neutral toward religion. From the very first, it was precisely the non-neutrality of the state toward religion that has been one of the prime catalysts of cultural and legal development in American education policy, public and private. There is an understandable tendency among some opponents of state Blaine Amendments such as Colorado’s to reduce them to simple expressions of non-neutral anti-Catholicism. Often they were that, but they were more.

To understand them merely in these terms—as lamentable examples of “discrimination”—domesticates them. It consigns them to a history from which we have happily progressed now that we have entered an epoch in which the making of discriminations of any kind is taboo. It puffs us up with the Whiggish certitude that to repudiate the Blaine Amendments is to rid ourselves decisively of the very real problem they addressed. That problem—how to foster through education the common civic culture upon which the American polity, even still, depends—does not vanish by easy, self-congratulatory resort to the voguish platitudes of antidiscrimination. The Blaine Amendments were woefully inadequate responses to that problem, but responses nonetheless. The empty bromide of religious neutrality is no response at all.

Goodman, “American Philosophy Before Pragmatism”

Pragmatism has been called America’s most distinctive contribution to American Philosophy Before Pragmatismphilosophy. And pragmatism has certainly influenced American law–see, for example, the contributions of Richard Posner to jurisprudence. Here is a new book that explores American philosophical thought before the 20th century pragmatist explosion, American Philosophy Before Pragmatism, by Russell B. Goodman (University of New Mexico), to be released in September by Oxford University Press. The publisher’s description follows.

Russell B. Goodman tells the story of the development of philosophy in America from the mid-18th century to the late 19th century. The key figures in this story, Jonathan Edwards, Benjamin Franklin, Thomas Jefferson, the writers of The Federalist, and the romantics (or ‘transcendentalists’) Emerson and Thoreau, were not professors but men of the world, whose deep formative influence on American thought brought philosophy together with religion, politics, and literature. Goodman considers their work in relation to the philosophers and other thinkers they found important: the deism of John Toland and Matthew Tindal, the moral sense theories of Francis Hutcheson, Adam Smith, and David Hume, the political and religious philosophy of John Locke, the romanticism of William Wordsworth and Samuel Taylor Coleridge, and the transcendental idealism of Immanuel Kant. Goodman discusses Edwards’s condemnation and Franklin’s acceptance of deism, argues that Jefferson was an Epicurean in his metaphysical views and a Christian, Stoic, and Epicurean in his moral outlook, traces Emerson’s debts to writers from Madame de Stael to William Ellery Channing, and considers Thoreau’s orientation to the universe through sitting and walking.

The morality of American slavery is a major theme in American Philosophy before Pragmatism, introduced not to excuse or condemn, but to study how five formidably intelligent people thought about the question when it was–as it no longer is for us–open. Edwards, Franklin and Jefferson owned slaves, though Franklin and Jefferson played important roles in disturbing the uneasy American moral equilibrium that included slavery, even as they approved an American constitution that included it. Emerson and Thoreau were prominent public opponents of slavery in the eighteen forties and fifties. The book contains an Interlude on the concept of a republic and concludes with an Epilogue documenting some continuities in American philosophy, particularly between Emerson and the pragmatists.

A Few Notes on the Libertas Conference on Religious Freedom

Mark and I are just back from the Libertas Conference at Villanova Law School. It was an extremely edifying period of thought, reflection, and fellowship with a wonderful group of lawyers, political theorists, philosophers, historians, and journalists, including Steve Smith, Damon Linker, Christopher Tollefsen, Elizabeth and David Corey, Tuan Samahon, and Gerald Russello, among many others. Rick Garnett, Zak Calo, and I were fortunate enough to moderate the sessions over a period of three days.

The sessions really broke down into four general categories: (1) genealogical accounts of church and state in modernity (including readings by Brad Gregory and Mark Lilla, as well as by Steve Smith); (2) historical studies of the specifically English and American experience of church and state (including readings by Stuart Banner and Michael McConnell), (3) comments on the projects of cultural Christianity and secularism (John Courtney Murray, Robert Louis Wilken, and Pope Benedict XVI were on the agenda); and (4) diagnoses of and prognoses for religious freedom in the United States (here some of the readings were decidedly inferior as they included some of my recent work, but also much better material by Rick Garnett and Paul Horwitz).

The conference was organized by Michael Moreland with his usual grace, generosity, and aplomb. The participants’ comments and insights will influence my own thinking and writing for a while, in ways I hope to note by and by. But here’s one initial thought having to do with scholarly method. There are of course many different ways to make scholarly contributions in law: argument in the service of changing doctrine, synthesis of a body of law to arrive at a new insight, normative pleas for turns or returns to various positions having assertedly desirable political ramifications, studies of empirical states of affairs, and so on. But my own view–helped along and shaped by the participants at the conference (as well as by posts like this one)–is that we are at the beginning of the flowering of an interesting period of long-view, retrospective, critical diagnostic scholarship in law and religion and constitutional law more broadly. Not everybody will be interested in this sort of approach, of course. Others in the field have different projects and different objectives. But at least for me, this is an invigorating thought.