As the conservative Front Page Magazine notes, progressive groups like the ACLU were silent about this Establishment Clause violation by their ideological compatriots on the Left:
“‘Maryland Gov. Martin O’Malley made national news last year when he fought to pass and signed a tax bill that levied a tax on Marylanders, businesses and churches for the amount of ‘impervious surface’ they have on their property.
“Though the O’Malley administration calls it a ‘fee,’ it is commonly called the ‘rain tax’ throughout the state. It is wildly unpopular and the promise to fight to repeal the tax was a large factor in Maryland electing Republican Larry Hogan governor this month.
“Now Prince George’s County is offering a way for churches to avoid paying the tax, which is estimated to be an average of $744 per year for them — preach “green” to their parishioners.
“So far 30 pastors have agreed to begin ‘green ministries to maintain the improvements at their churches, and to preach environmentally focused sermons to educate their congregations” to avoid being hit with the tax.’
“No ACLU lawsuits [or criticism despite a state-favored] church preaching the word of Mother Earth….”
This sets a dangerous precedent. As legal commentator Walter Olson asks, “Since when does government get the power to cut churches tax breaks in exchange for their agreement to preach an approved line?”
This violates freedom of speech under the unconstitutional conditions doctrine. Under Supreme Court precedent, you can’t condition a valuable government benefit like a tax exemption on someone’s speech. Speiser v. Randall, 357 U.S. 513 (1958), was a Supreme Court case addressing California’s refusal to grant a veteran a tax exemption because he refused to sign a loyalty oath as required by a California law. The Supreme Court ruled that the condition violated the First Amendment. The Supreme Court has reaffirmed this “unconstitutional conditions” doctrine in many other cases and contexts, such as in Dollan v. City of Tigard, 512 U.S. 374, 385 (1994).
Even if this did not violate the First Amendment’s free speech clause, it would still be unconstitutional. This government meddling in the content of sermons constitutes undue entanglement and religious favoritism in violation of the Establishment Clause and the religion clauses of the Maryland and federal constitutions. Government officials are not supposed to even indirectly meddle in things like the “voice of the church,” even through generally-applicable, non-discriminatory labor or employment laws (which this viewpoint-discriminatory reward for green ministries manifestly is not, making it patently unconstitutional). See, e.g., EEOC v. Catholic University of America, 83 F.3d 455 (D.C. Cir. 1996) (appeals court ruled that EEOC could not enforce even generally-applicable employment laws so as to regulate who religious university employed as the “voice of the church” in matters of theology, since that would entangle church and state, and violate religious freedom); Larkin v. Grendel’s Den, 459 U.S. 116 (1982) (Supreme Court declared that land-use provisions that would be valid in secular context violated the establishment clause when they conferred a benefit on churches suggestive of a symbiotic union of church and state).
Selective concern for separation of church and state is nothing new. The Supreme Court unanimously ruled against the Obama administration’s attempt to regulate hiring of clergy and teachers of theology in the 2012 Hosanna-Tabor case, thereby preventing bureaucratic entanglement in internal church affairs. Although its ruling protected separation of church and state, it was denounced by many self-proclaimed supporters of separation of church and state. Those hypocritical progressive groups had filed amicus briefs with the Supreme Court seeking to give federal bureaucrats the ability to micromanage churches’ hiring of clergy and other “voices of the church."
Hans Bader is a senior attorney at the Competitive Enterprise Institute.