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This is not a new debate. It goes all the way back to when James Madison led the fight against a proposed tax assessment in Virginia that would have, among other things, paid for the creation and maintenance of houses of worship. That was in 1785. The proposal lost. As Ira Lupu and Robert Tuttle wrote in a legal analysis in 2003, “the Supreme Court has frequently looked to this historical episode as a guide to the original meaning of the Establishment Clause, which became part of the federal constitution in 1791.”
Then in the 1971 case Tilton v. Richardson, the court essentially prohibited government construction or repair of buildings used for religious worship or instruction. That case, along with a pair of subsequent decisions, has so far been the last word from the court on this issue.
But Congress and the executive branch have nudged federal officials to be more generous with public funds. So houses of worship may now apply for grants for historic preservation and homeland security — a program that, as the Forward has reported, was essentially crafted to aid Jewish institutions. Another chink in the proverbial wall of separation was carved in 2002, when the Seattle Hebrew Academy was allowed to use federal money to repair a building damaged by an earthquake.
The theory is that the public funding is justified because it’s going to deal with events or obligations outside the institutions’ control — damage caused by flood or earthquake, for example, or the need to protect from potential terrorism. The easy analogy is fire: Should the local fire department not respond to the call from a church when its bell tower erupts in flames, just because it’s a religious nonprofit and doesn’t pay taxes?
Of course the fire department should respond. That’s what a compassionate government does — protects not just the church, but its neighbors. The concept of “neutrality” obligates government to treat houses of worship like other buildings, just as FEMA grants are not skewed to religious organizations but to anyone suffering from the ravages of natural disasters. (This is why the homeland security grants are so problematic, because they are essentially Jewish earmarks.)
But that church or synagogue is not like its neighbors in many respects. Religious institutions hold special privileges even among groups that are qualified as nonprofits and not required to pay taxes.