Earlier this week, the California Supreme Court issued a decision in California Statewide Communities Development Authority v. All Persons Interested. The opinion is available on the web at http://www.courtinfo.ca.gov/opinions/documents/S124195.PDF
The lower courts had concluded that article XVI, section 5 of the California Constitution (sometimes called California's "Blaine Amendment") forbid the agency (CSCDA) from issuing tax-exempt bonds for construction projects at Azusa Pacific University, California Baptist University, and the Oaks Christian School if such schools were "pervasively sectarian." By a 4-3 vote, the state supreme court held that a school's eligibility for tax-exempt bond finance does *not* turn on whether it is "pervasively sectarian." It remanded the case back to the lower courts for further proceedings. [The dissenters concluded that the proposed bond issues were plainly unconstitutional and that remand was unnecessary.] The supreme court instructed the lower courts to ask two questions in determining the constitutionality of the proposed bond issues: (1) whether the schools "offer a broad curriculum in secular subjects"; and (2) whether "the schools' secular classes consist of information and coursework that is neutral with respect to religion." In discussing the "neutrality" requirement, the court invoked Establishment Clause cases requiring religious neutrality in various settings, including Epperson v. Arkansas and McCreary County v. ACLU. At the same time, the court said that "the expression of a religious viewpoint in otherwise secular classes" held in financed buildings would not render the bond issue unconstitutional. I am particularly interested in whether other subscribers believe whether a bond issuing agency would violate the federal constitution if it denied a religious school access to conduit financing on the ground that its secular classes are NOT "neutral with respect to religion." Federal and state tax codes exempt from income tax the interest earned on government-issued bonds. Government agencies issue bonds for the benefit of a huge variety of entities, including for-profit industrial enterprises, housing facilities, airports, hospitals, and schools. Because the investors don't pay tax on the interest they earn, they are willing to accept a lower rate of return. This benefits the borrowers, who pay a lower interest rate. Of course, government tax revenues are lower than they otherwise might be. Given the indirect nature of the government benefit to religious schools, is California justified in requiring religious neutrality in financed buildings? Or is this an unjustifiable viewpoint discriminatory condition on an otherwise available benefit? Greg Baylor Gregory S. Baylor Director, Center for Law & Religious Freedom Christian Legal Society 8001 Braddock Road, Suite 300 Springfield, VA 22151 (703) 642-1070 x 3502 (703) 642-1075 fax [EMAIL PROTECTED] http://www.clsnet.org _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
