Slouching Toward a Religious Levy : Law: The Supreme Court decision allowing California to tax items sold by Swaggart Ministries compromises the right of worship.

When the U.S. Supreme Court unanimously ruled that California can tax the sale of religious items by religious groups, the media, for the most part, yawned. The closest thing to alarm was a headline in the Washington Times: “High Court Allows Sales Tax on Bible.” In truth, the court’s decision in Swaggart Ministries vs. California Board of Equalization may be an instance of rendering unto Caesar much more than he deserves.

To be sure, some entrepreneurial activities conducted by churches should be taxed. Swaggart Ministries conceded as much when it decided against contesting California’s levy on its T-shirts and vases. But there are at least two reasons for thinking twice before taxing the sale of religious items by religious groups.

One is social utility. In many communities, the work of church-sponsored social-welfare agencies--from homeless shelters to AIDS hospices--supplements public programs and institutions. The nation would be poorer without this benevolence.

It would also be poorer in the pocketbook. Church institutions and programs save American taxpayers a lot of money. Consider parochial schools. They do a better job than public schools with students of similar background, according to standardized test results. Furthermore, parochial schools do it cheaper. If inner-city parochial schools serving large numbers of poor, non-Catholic children went out of business, taxpayers in scores of cities would face the painful--and expensive--necessity of picking up the slack.

Churches also nurture a moral vision that is indispensable to sustaining the underpinnings of the social order. Without religion and its convictions concerning the transcendent value of the human person, Glenn Tinder wrote recently in the Atlantic Monthly, “the spiritual center of Western politics fades and vanishes.” The secularized West may already be living off the capital of its religious past.

Taxing the sale of religious goods, of course, would not prohibit churches from performing socially useful tasks. But it would make doing so more difficult.

The second reason to proceed slowly on religious taxes is rooted in a constitutional principle. The First Amendment forbids Congress to pass a law respecting the “establishment” of religion (no state church) or “the free exercise thereof.” The protection is embodied in the phrase, “separation of church and state.”

Separation cuts two ways. It’s meant to keep religion out of government; it’s meant to bar government from interfering in matters religious. The latter prohibition is essential to preserving everyone’s right to worship as he or she pleases. It is here that the Swaggart decision is worrisome.

Jimmy Swaggart has long sold Bibles, religious pamphlets, tapes and various other items by mail and at his crusades. During eight of those years, the state of California contended in court, the TV evangelist ran up a tax bill in California of $166,000, plus interest. Swaggart protested, arguing that the tax interfered with his free exercise of religion. He was supported in court by such religious groups as the National Council of Churches, the Watchtower Bible and Tract Society (Jehovah’s Witnesses) and the International Society for Krishna Consciousness.

In determining if a law or policy violates the First Amendment’s free-exercise clause, the Supreme Court uses a three-pronged test. Is the purpose of the law primarily secular? Does the law directly benefit or harm religion? Does it represent “excessive entanglement” between church and state?

The secular purpose of the tax law was clear: Nothing personal--California just wants its money. But the court’s handling of the remaining two questions is hard to understand.

There’s a curious passage in Justice Sandra Day O’Connor’s opinion that highlights the flaw in the court’s reasoning. Sales taxes don’t create church-state entanglement, she argued, since they don’t “require the state to inquire into the religious content of the items sold or the religious motivation for selling or purchasing the items, because the materials are subject to the tax regardless of content or motive.”

But suppose the content of an item and motive for selling or buying it are, indeed, religious? What if selling the item, even at a profit, is the religious ministry, as is the case for many religious groups? If so, taxing the sale of the religious item is tantamount to taxing the ministry itself. Put another way, the ministry is being taxed for exercising its First Amendment right. O’Connor, of course, doesn’t want to hear about that.

Happily, O’Connor noted that the court’s analysis might have been different had a heavier tax been levied, which would have threatened “effectively (to) choke off an adherent’s religious practices.” The Supreme Court doesn’t want to do that, but its reasoning in Swaggart clears the way to compromise the free exercise of religion just the same.