Religion and the Welfare State

Almost every Establishment Clause case uses the word “neutrality” in describing the proper attitude of government toward religion.

What does neutrality mean in the context of benefits in the Welfare State? Religious citizens pay their share of taxes to fund the Welfare State, and so the question is whether they should also be eligible for an equal share of benefits.

Suppose Nebraska passes a law providing a $3,000 tax credit to any full-time k-12 teacher in any accredited school (including private schools) earning less than, say, $35,000. Is this a direct benefit to religious educators that advances religion under the EC?

What about a state income tax that applies to all teachers in both public and nonpublic schools. Is this a direct burden on religious educators that inhibits religion?

Suppose the State of Nebraska adopted a program that would pay $2,000 per year to anyone who would agree to eat only non-Kosher meats? Would this program violate the Establishment Clause? The Free exercise Clause?

Let’s apply law and economics here – at least at the margins, would you expect more, or less, or the same degree of compliance with Kosher dietary restrictions among Jewish citizens with this program in effect.

Suppose instead of a cash grant the government simply increased our taxes in exchange for a free weekly allotment of meat at Government Meat Shops. Although Jews were required to pay the tax along with everyone else, they receive little or no benefits from the program (because the government butcher shops do not carry Kosher products).

Is this law “neutral” concerning its impact on religion?

Does it violate the EC for the Food Stamp program to include Kosher foods as eligible for purchase with food stamps?

Would it violate the EC to exclude Kosher food from the Food Stamp program? What about the Free Exercise Clause?

Imagine a very large Welfare State, one with very high tax rates (say 80-90%) but also very generous benefit programs:


High demand religions in the Welfare State (Super Strict Amish denomination)
– strict dietary requirements (certain food)
– strict clothing requirements (certain clothing)
– strict educational requirements (must attend church schools k-12)
– strict requirements about books and recreational activities etc.

90% tax, but the taxes are returned in the form of social benefits
– meat allowance in Govt. Grocery stores (but "religious food" not stocked)
– clothing allowance in govt. dept. store (but no "religious clothing")
– free tuition in Govt. Schools (but no funding of religious K-12 schools)
– book allowance in govt. book stores (but no Bibles or religious books)
-free electric heat (but no firewood or coal)

How hard will it be for members of this Religious Denomination to live out their religious lifeways in this kind of State?