The Infrastructure of Religious Freedom

In response to my speech on the infrastructure of free expression, Rick Garnett asks whether there might be an infrastructure of religious freedom.

There certainly is. Freedoms like speech, press, and religion require more than mere absence of government censorship or prohibition to thrive; they also require institutions, practices and technological structures that foster and promote these freedoms.

Some parts of that infrastructure are public; others are private. Some elements are social norms; others are institutions like libraries and schools (both public and private), and still others involve technology (both publicly and privately owned), including-- for example-- buildings where institutions and practices occur, technologies of communication, and so on.

So what are the infrastructures of religious freedom? They include a wide range of private institutions-- churches, educational institutions, and charities. They also include many of the same structures and technologies that undergird freedom of speech, because religions are usually perpetuated through communication and education, just as cultures and ideologies are.

Religious freedom faces a special problem, however, because the U.S. Constitution limits the forms of infrastructure that the government can provide. The Constitution forbids federal and state governments from making laws concerning establishments of religion or that establish religion. Hence some obvious methods for creating an infrastructure of religious freedom are not available to governments that would be available to promoting freedom of speech more generally. For example, there is no problem with the U.S. government spending money to promote scientific research; indeed, the U.S. government is probably the foremost patron of scientific research in the country, if not the world. There would be a constitutional problem, however, with the U.S. government promoting religion by donating large sums of money to existing churches to promote proselytization, or perhaps even providing seed money for people to start new churches of their own.

Therefore, government can play somewhat less of a role in providing the infrastructure of religious freedom than it can in the case of free expression. Much of the slack will have to be made up for by private action, including private charity. With respect to the latter, however, government can play and has traditionally played an important role. Governments have allowed deductions for contributions to religious organizations and religious charities, and they have traditionally allowed churches and other religious charitable organizations exemption from property taxes as part of a general exemption for charitable and educational organizations.

It is impossible to overestimate how much tax relief-- in the form of tax exemptions and tax deductions-- counts in fostering a vibrant religious sphere in this country. We often think of government support for religion in terms of support for parochial schools or government partnering with religious organizations to provide social services. But these proposals-- to the extent that they are constitutional-- really pale in importance to long standing governmental tax policies that treat religious organizations the same way they do other charitable and educational institutions.

Moreover, government investments in infrastructure-- including libraries, postal subsidies, and subsidies for telecommunications infrastructures-- strongly benefit religious organizations even though they benefit many other kinds of speech, expression and association generally. That is because religious speech, expression and association makes considerable use of the same infrastructural elements as other forms of speech, expression, and association.

Thus, although the Establishment Clause prevents the government from singling out religion for special benefits to create an infrastructure of religious freedom, it does not prohibit the government from creating infrastructural elements that benefit both religious and nonreligious expression alike. As a result, government plays an incredibly important-- although generally unacknowledged-- role in supporting and maintaining the infrastructure of religious freedom in the United States even though it may not support religion in all the ways that various religious movements might like. For those who would like to relax our current Establishment Clause doctrines further, one might object that I am merely pointing out that the glass is half full rather than half empty. I think, however, that this really underestimates what existing policies do in terms of material support for religious belief, even given the Establishment Clause jurisprudence we have today.

As the American welfare state-- with its various tax and expenditure policies-- has grown over the years, so too has the effective practical support for religious institutions in the United States, even given the limitations of the Establishment Clause. That is one reason why religious organizations in particular should support many aspects of the access to knowledge movement. These policies not only benefit speech and the promulgation of ideas generally, they also benefit religious speech and the promulgation of religious belief.