Constitutional Law: Should Religion Be Taxed?

In her attack on the U.S. tradition of granting tax exemption to church-owned property, Atheist Madalyn Murray O'Hair filed a widely watched suit in Maryland that no constitutional scholar can lightly dismiss. Such exemption, she argued, hikes taxes for other property owners and violates the First Amendment because it amounts to taxation in support of religion.

Last week the Maryland Court of Appeals unanimously rebuffed Appellant O'Hair (who now lives in Mexico). But in speaking for Maryland's highest court, Judge Reuben Oppenheimer frankly conceded her basic point. "Economically," he said, religious organizations "are in the same position as though they paid taxes to the city and state and then received back the amounts paid in the form of direct grants." Moreover, "members of the general public pay higher taxes than they would if the exemptions were not in effect."

"Logically, this argument is strong," continued the judge. But logic "is a minion of the law, not its master." More important, such exemption aids "the general welfare, apart from any benefit that religious organizations derive from it." Many church activities bring "substantial benefit to the community, such as aid to the poor and aged, day nurseries, care of the sick, and efforts to eliminate racial inequalities. Programs such as these serve public needs; the performance of these functions by private agencies saves the state the expense of providing the same services."

Not only is it impossible to separate the secular from the nonsecular in such church activities, said Oppenheimer, but tax exemption is well established for other charitable organizations performing the same kind of services. If religious groups were forced to give up exemptions, he concluded, "serious questions of unconstitutional discrimination might arise." In short, despite logic, Maryland believes that the Constitution can and does permit this particular reality of U.S. life. Whether Maryland is right must still be decided by the Supreme Court—if, and when, it considers Mrs. O'Hair's appeal.