Bob Jones University v. United States

K. K. HALL, Circuit Judge:

Bob Jones University conducts “an institution of learning for the general education of youth in the essentials of culture and in the arts and sciences, giving special emphasis to the Christian religion and the ethics revealed in the Holy Scriptures....”¹ Its religious teachings include a strict prohibition against interracial dating and marriage. The admissions and disciplinary policies used to enforce this belief have resulted in the loss of the University’s tax exempt status, which we are now asked to review.

Bob Jones University [taxpayer] brought this action to recover Twenty-One Dollars which it paid in 1975 under the Federal Unemployment Tax Act [FUTA].² The government counterclaimed for FUTA taxes for the taxable years 1971 through 1975 in the amount of $489,675.59, plus interest. The district court concluded, on both statutory and constitutional grounds, that the IRS was without authority to revoke the University’s tax-exempt status. Bob Jones University v. United States, 468 F.Supp. 890 (D.S.C.1978). We reverse.

I.

A. The University and its Racial Policies

Bob Jones University was founded in Florida in 1927. It moved to Greenville, South Carolina in 1940 and has been incorporated there as an eleemosynary institution since 1952. Taxpayer is not affiliated with any religious denomination, but maintains a fundamentalist orientation in its educational approach. It is a religious institution in its own right, as well as an educational one.

Taxpayer accepts students from kindergarten through college and graduate school. It enrolls about five thousand students and offers some fifty accredited degrees, in addition to its nondegree Institute of Christian Service. All courses, however, are taught according to Biblical Scripture. Teachers are required to be “born again” Christians; students are screened as to their religious beliefs and their conduct is strictly regulated.

Bob Jones University believes that the Scriptures forbid interracial marriage and dating. Prior to 1971, it completely excluded blacks. From 1971 to May, 1975, taxpayer accepted no applications from unmarried black students, with the exception, since 1973, of staff members who had been at the University four years or longer. Following this court’s decision in McCrary v. Runyon, 515 F.2d 1082 (4th Cir. 1975) (reh. den. May 29, 1975), aff’d 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), prohibiting racial exclusion from private schools, taxpayer revised its policy. After May 29, 1975, unmarried blacks were permitted to enroll, but a disciplinary rule was added to prevent racial intermarriage and dating.

There is to be no interracial dating

1. Students who are partners in an interracial marriage will be expelled.

2. Students who are members of or affiliated with any group or organization which holds as one of its goals or advocates interracial marriage will be expelled.

3. Students who date outside their own race will be expelled.

4. Students who espouse, promote, or encourage others to violate the University’s dating rules and regulations will be expelled.

B. THE IRS’ non-discrimination policy

Prior to 1970, the Internal Revenue Service extended tax exempt status under § 501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 501(c)(3) to all private schools, regardless of racial policy. In 1970, however, black Mississippi parents and children obtained a preliminary injunction prohibiting the IRS, pendente lite, from according tax-exempt status to private schools in Mississippi which discriminated on the basis of race. Green v. Kennedy, 309 F.Supp. 1127 (D.D.C.1970). The IRS later announced nationally that it would no longer allow charitable contributions and deductions, 26 U.S.C. § 170(c)(2), and tax exempt status, § 501(c)(3), to racially discriminatory schools, including church-related schools.

On Juné 30, 1971, the three judge district court in Green ruled that the issuance of tax exempt status to racially discriminatory private schools was illegal, and issued a permanent injunction enjoining the Commissioner of Internal Revenue from approving tax exempt status to any school in Mississippi that does not publicly maintain a policy of nondiscrimination. Green v. Connally, 330 F.Supp. 1150 (D.D.C.1971). That decision was affirmed by the Supreme Court in Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971) (per curiam).

Following the Green decision, the Service formalized the nondiscrimination policy in several rulings. Rev.Rul. 71-447, 1971-2 Cum.Bull. 230; Rev.Proc. 72-54, 1972-2 Cum.Bull. 834. The 1972 procedures were superseded in 1975 by Rev.Proc. 75-50, 1975-2 Cum.Bull. 587, see also Rev.Rul. 75-231, 1975-1 Cum.Bull. 158 (nondiscrimination requirement for church operated schools). Revenue Procedure 75-50 provides that in order to qualify under section 501(c)(3), a private school must be able to show that all of its programs and facilities are operated in a nondiscriminatory manner.³

Bob Jones University is subject to the Revenue procedures prohibiting racial discrimination in private schools. The University is an educational institution as well as a religious one. See 26 C.F.R. § 1.501(c)(3)-1(d)(3) (educational defined), and the rulings and procedures promulgated by the Service apply to all private schools. We decline to create an exception for religion-based schools where the Service has made none.

We, therefore, must address two questions. Does the IRS have the statutory authority to deny tax exempt status to Bob Jones University because of its racial policies and, if so, does the denial contravene the First Amendment to the Constitution of the United States?

II.

Statutory Authority for the Nondiscrimination Condition

The district court found that the University was entitled to the section 501(c)(3) exemption because “its primary purpose is religious and it exists as a religious institution.” 468 F.Supp. at 897. The court reasoned that since the statute and the regulations enumerate seven distinct tax exempt purposes, one of which is “religious,” see 26 C.F.R. § 1.501(c)(3)-1(d)(1)(iii), the exemption must be granted once it has been established as a fact that the institution fits one of those enumerated categories.

This simplistic reading of the statute, however, tears section 501(c)(3) from its roots. In Green v. Connally, 330 F.Supp. 1150 (D.D.C.1971), aff’d per curiam sub nom. Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971), a three judge district court held “[t]he code must be construed and applied in consonance with the federal public policy against support for racial segregation of schools, public and private.” 330 F.Supp. at 1163.⁴ Accordingly, it upheld the application of the IRS’s nondiscrimination condition to private schools in Mississippi which practiced racial discrimination.⁵

In that persuasive and scholarly opinion, Judge Leventhal viewed . section 501(c)(3) against its background in the law of charitable trusts, concluding that to be eligible under that section, an institution must be “charitable” in the broad common law sense,⁶ and therefore must not violate public policy. Green, supra, 330 F.Supp. at 1156-60.

The legislative history of § 501(c)(3) verifies the exemption’s foundation in public policy.

The exemption from taxation of money and property devoted to charitable and other purposes is based upon the theory that the Government is compensated for the loss of revenue by its relief from financial burden which would otherwise have to be met by appropriations from other public funds, and by the benefits resulting from the promotion of the general welfare. H.R.Rep.No.1820, 75th Cong.3d Sess. 19 (1939). (emphasis added)

Accordingly, it is appropriate that the Service interpreted section 501(c)(3) in a manner that reflects its purpose and history. Moreover, as the Green court noted, tax benefits such as deductions and exclusions generally are subject to limitation on public policy grounds. In Tank Truck Rentals v. Commissioner, 356 U.S. 30, 78 S.Ct. 507, 2 L.Ed.2d 562 (1958), the Court upheld the service in disallowing the deduction of fines paid for violations of highway weight limits under the “ordinary and necessary” business expense provision of the Code, 26 U.S.C. § 162. The allowance of the claimed deduction, the Court held, would frustrate the purpose of the State weight law by diluting the punishment imposed. The court held that the expense could not be deemed a “necessity” if allowing the deduction would frustrate “sharply defined” public policy. 356 U.S. at 33, 78 S.Ct. at 509.

Bob Jones University’s racial policies violated the clearly defined public policy, rooted in our Constitution, condemning racial discrimination and, more specifically, the government policy against subsidizing racial discrimination in education, public or private.

Bob Jones’ pre-May 1975 policy excluding unmarried black students violated public policy by subjecting black persons to restrictions which were not imposed on whites. In Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1975), the Supreme Court held, in a non-religious setting, that the equal right to contract provision, 42 U.S.C. § 1981, prohibits racial discrimination in non-public school admission policies. Similar considerations apply in a religious setting. In Bob Jones University v. Roudebush, 529 F.2d 514 (4th Cir. 1979) affirming Bob Jones University v. Johnson, 396 F.Supp. 597 (D.S.C.1974), we upheld the denial of Veterans Administration assistance to Bob Jones University and its students under Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et seq., because of this policy of excluding unmarried blacks. See also Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973).

The University’s post:May 1975 policy applies equally to both black and white students; nevertheless, it too constitutes racial discrimination. That discrimination on the basis of racial affiliation or companionship is a form of racial discrimination is clear from Equal Protection cases such as Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (law prohibiting interracial marriage unconstitutional) and McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964) (interracial cohabitation law invalid), as well as § 1981 decisions, see Tillman v. Wheaton Haven Recreational Association, 410 U.S. 431, 93 S.Ct. 1090, 35 L.Ed.2d 403 (1973) (white club member expelled for bringing black guests); Faraca v. Clements, 506 F.2d 956 (5th Cir. 1975) cert. denied 422 U.S. 1006, 95 S.Ct. 2627, 45 L.Ed.2d 669 (1976) (white man denied employment because wife was black).

We think the Service acted within its statutory authority in revoking Bob Jones University’s tax exempt status because of these policies.

The University asserts, however, that this situation is special because its racial policies are grounded in sincere religious faith and therefore immutable; with or without the exemption it will maintain its present policy. The district court agreed, finding that the relationship between the exemption and the frustration of public policy against discrimination was too remote to bring the case within the narrow Tank Truck exception to deductibility. 468 F.Supp. at 903-04.

This argument misses the mark for two reasons. First, we are not here confronted with a computational provision designed “to tax earnings and profits less expenses and losses.” Tank Truck, supra, 356 U.S. at 33, 78 S.Ct. at 509. Unlike section 162, section 501(c)(3) is rooted in public policy considerations wholly apart from the “broad basic policy of taxing ‘net, not * * * gross, income.’ ” Id. (citations omitted) The public policy limitation, therefore, need not be so narrowly applied.

Second, the nondiscrimination policy assures that Americans will not be providing indirect support for any educational organization that discriminates on the basis of race. Cf. Norwood v. Harrison, supra.⁷ The fact that the religious belief is sincere, and the policy immutable in this case does not obviate the need for a prophylactic rule to prevent such support.

III.

The First Amendment

Our approval of the government’s interpretation of § 501(c)(3) brings us to the question whether application of the nondiscrimination policy to Bob Jones University violates the Free Exercise and Establishment clauses of the First Amendment.

A. The Free Exercise Clause

The University contends that the IRS’s nondiscrimination policy violates its right to freely practice its religion because it is forced to give up a valuable government benefit in order to practice its religious beliefs. Assuming that the revocation of § 501(c)(3) status does impinge upon the University’s practice to some extent, see Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1962), the question remains one of balancing — giving due consideration to the weight of the interests asserted by the government and the extent and nature of the burden on the religious practice and the religion as a whole. See, Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). See also, Note, 1981 after Runyon v. McCrary: The Free Exercise Right of Private Sectarian Schools to Deny Admission to Blacks on Account of Race, 1977 Duke L.J. 1219, 1240-1266.

The government interest in eliminating all forms of racial discrimination in education is compelling. See, e. g., Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). It extends to private action as well as public, Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1975), and has a special vitality where the integration of public schools has made private education attractive to those who would try to turn back the clock.

Government must “steer clear” of any expression of support for racial discrimination in education. See Norwood v. Harrison, supra, 413 U.S. at 467, 93 S.Ct. at 2811.

In Bob Jones University v. Roudebush, 529 F.2d 514 (4th Cir. 1979) (per curiam), affirming Bob Jones University v. Johnson, 396 F.Supp. 597 (D.S.C.1974), we recognized that the government interest in eliminating all racial discrimination in education was sufficiently compelling to justify denial, under Title VI of the Civil Rights Act, of Veterans Administration [V.A.] benefits to Bob Jones University and its students. The policy involved in that case was the same religiously based pre-1965 policy involved here: the denial of admission to unmarried blacks. The district court rejected the University’s Free Exercise claim, stating:

It is clear that the Free Exercise Clause cannot be invoked to justify exemption from a law of general applicability grounded on a compelling state interest.

396 F.Supp. at 607; we affirmed.

In Goldsboro Christian Schools v. United States, 436 F.Supp. 1314 (D.S.C.1977), the government’s policy of denying tax exempt status to private racially discriminatory schools survived Establishment Clause challenge by a school that excluded blacks because of its religious proscription of racial intermarriage. See also Green v. Connally, supra, 330 F.Supp. at 1169; Brown v. Dade Christian Schools, 556 F.2d 310, 314-24 (5th Cir. 1977) (concurring opinion of Judge Goldberg).

The government interest in this case is compelling, when applied to the post-May 1975 policy of strict limitations on racial companionship as well as to the pre-May 1965 policy of excluding unmarried blacks. As discussed in part II, supra, the clear federal policy against racial discrimination applies to all forms of racial discrimination — governmental or private, absolute or conditional, contractual or associational.

In contrast, the government’s rule would not prohibit the University from adhering to its policy.⁸ Abandonment of the policy would not prevent the University from teaching the Scriptural doctrine of nonmiscegenation. Nor is any individual student at Bob Jones University forced to personally violate his beliefs; no student is forced to date or marry outside of his race. We think these factors tip the balance in favor of the Services’ nondiscrimination doctrine. See generally, Note, Section 1981 after Runyon v. McCrary: The Free Exercise Right of Sectarian Schools to Deny Admission To Blacks on Account of Race, 1977 Duke L.J. 1219; Racial Exclusion by Religious Schools, Brown v. Dade Christian Schools, Inc., 91 Harv.L.Rev. 879 (1978). Comment, The Tax Exempt Status of Sectarian Educational Institutions That Discriminate on the Basis of Race, 65 Iowa L.Rev. 258 (1979).

B. The Establishment Clause

The nondiscrimination policy also passes muster under the Establishment Clause. The Establishment Clause requires that a law reflect a secular legislative purpose, have a primary effect that neither advances nor inhibits religion, and avoid excessive entanglement with religion. Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 100 S.Ct. 840, 846, 63 L.Ed.2d 94 (1980); Committee for Public Education v. Nyquist, 413 U.S. 756, 773, 93 S.Ct. 2955, 2965, 37 L.Ed.2d 948 (1973); Tilton v. Richardson, 403 U.S. 672, 678, 91 S.Ct. 2091, 2095, 29 L.Ed.2d 790 (1971). The secular purpose of the rulings in question is unassailable. Taxpayer asserts, however, that the result is both the unconstitutional advancement of certain religions and government excessive entanglement in religious practices.

The district court perceived an Establishment Clause conflict created by the government’s denial of tax exemption to religions which would not “stay in step” with expressed federal policy. Thus, it held “the application of the law in the manner which defendant construes it, results in government favoring those churches that adhere to federal policy, more specifically, in this case, those churches whose religious beliefs do not forbid interracial marriage.” 468 F.Supp. at 900.

We agree that the Government must maintain an attitude of neutrality toward all religions. Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971); Walz v. Tax Commission of New York, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970).⁹ But certain governmental interests are so compelling that conflicting religious practices must yield in their favor. Thus the court has upheld statutes prohibiting polygamy, Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878), or sale of religious materials by minors, Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), even though they “favor” religions that do not engage in such practices. In Braunfield v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961), the Court upheld Sunday closing laws, which made the practice of orthodox Jewish merchants’ beliefs more expensive” because of the strong state interest in providing one uniform day of rest for all workers.” Again, certain religions were “favored,” but the First Amendment was not violated.

We respect the district court’s concern that religions not be required always to “stay in step with expressed federal policy.” The Establishment Clause protects against such intrusion. Walz, supra 397 U.S. at 674, 90 S.Ct. at 1414. But the principle of neutrality embodied in the Establishment Clause does not prevent government from enforcing its most fundamental constitutional and societal values by means of a uniform policy, neutrally applied. See Gillette, supra.

Finally, the government’s rulings do not create the kind of excessive entanglement with religion recently avoided in National Labor Relations Board v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979). In Catholic Bishop, the Supreme Court held that the National Labor Relations Act did not require Roman Catholic religious schools to permit their lay teachers to hold representation elections, and rejected NLRB jurisdiction over alleged unfair labor practices involving such schools. The Court noted that to hold otherwise would present a significant risk that the First Amendment would be infringed. Id., 99 S.Ct. at 1320. First, it would often require inquiry into the good faith of the position asserted by the clergy administrators and by the school’s religious mission. Second, the Board would be called upon to decide what are “terms and conditions of employment” — an inquiry that would involve the Board in “nearly everything that goes on in the schools.” Id. (emphasis added)

In contrast, the scope of government involvement in this case is much narrower; the only inquiry is whether the school maintains racially neutral policies. And, the uniform application of the rule to all religiously operated schools avoids the necessity for a potentially entangling inquiry into whether a racially restrictive practice is the result of sincere religious belief. Compare, Brown v. Dade Christian Schools, supra. The provision in question involves minimum intrusion into the operation of the school while serving important government interests.¹⁰

IV.

In conclusion, we hold that the revocation of Bob Jones University’s tax exempt status violates neither the statutory mandate of section 501(c)(3) of the Internal Revenue Code nor the First Amendment to the Constitution of the United States. The judgment of the district court is reversed with instructions to dismiss the University’s claim for refund of 1975 FUTA taxes, and to reinstate the government’s claim for the years 1971 to 1975 and enter appropriate judgment thereon for defendant.

REVERSED AND REMANDED WITH INSTRUCTIONS.

1 . As stated in its Preamble, and contained in its Certificate of Incorporation:

The general nature and object of the corporation shall be to conduct an institution of learning for the general education of youth in the essentials of culture and in the arts and sciences, giving special emphasis to the Christian religion and the ethics revealed in the Holy Scriptures, combating all atheistic, agnostic, pagan and so-called scientific adulterations of the Gospel, unqualifiedly affirming and teaching the inspiration of the Bible (both Old and New Testaments); the creation of man by the direct act of God; the incarnation and virgin birth of our Lord and Saviour, Jesus Christ; His identification as the Son of God; His vicarious atonement for the sins of mankind by the shedding of His blood on the Cross; the resurrection of His body from the tomb; His power to save men from sin; the new birth through the regeneration by the Holy Spirit; and the gift of eternal life by the Grace of God.

2 . In an earlier action, filed in 1971, taxpayer attempted to enjoin the IRS from revoking its tax exempt status. In Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974), the Supreme Court held that the Anti-Injunction Act of the Internal Revenue Code, 26 U.S.C. § 7421(a), prohibited such an action, but suggested the procedure employed here. Id. at 746, 94 S.Ct. at 2050.

3 . In 1979, Congress passed the Treasury, Postal Service and General Government Appropriations Act, 1980, Pub.L. No. 96-74, 93 Stat. 559.

That Act provides,

§ 103. None of the Funds made available pursuant to the provisions of this Act shall be used to formulate or carry out any rule, policy, procedure, ... which would cause the loss of tax exempt status to private, religious, or church operated schools under § 501(c)(3) of the Internal Revenue Code of 1954 unless in effect prior to August 22, 1978.

(emphasis added). Section 615 of the Act specifically prohibited funding of two proposed revenue procedures, 3830-01-M (44 Fed.Reg. 9451, Feb. 13, 1979) and 4830-01 (43 Fed.Reg. 37296, Aug. 22, 1978).

The effect of the Appropriations Act is clearly prospective and has no effect on the policy as enforced in this case. See also 125 Cong. Rec. H 5879, 5882 (daily ed. July 13, 1979) (Rep. Ashbrooke). Rather, it places a moratorium on new procedures, including the proposed procedures cited in section 615. The provision is discussed more comprehensively in Note, The Judicial Role in Attacking Racial Discrimination in Tax-Exempt Private Schools, 93 Harv.L.Rev. 378 (1979).

4 . In Bob Jones University v. Simon, supra, 416 U.S. at 740 n.11, 94 S.Ct. at 2047 n.11, the Supreme Court indicated that its affirmance of Green lacks the precedential weight of a case involving a truly adversary appeal to that court. We think the reasoning of the three judge court below, however, is persuasive and not without precedential weight.

5 . In Goldboro Christian Schools v. United States, 436 F.Supp. 1314 (E.D.N.C.1977), the IRS nondiscrimination condition was upheld when applied to a religiously based private school which excluded blacks.

6 . This view finds additional support in the statutory framework itself: Section 170 of the Code, the companion provision to 501(c)(3), places the separately enumerated purposes in that section under the broad heading of “charitable” and permits deduction of contributions made to organizations serving those purposes. 26 U.S.C. § 170(c)(2)(B).

7 . The grant of tax exempt status to any institution necessarily confers upon it a kind of monetary benefit and constitutes a form of government support. Walz v. Tax Commission, 397 U.S. 664, 674-75, 90 S.Ct. 1409, 1414, 25 L.Ed.2d 697 (1970). The Supreme Court in Walz held that a state property tax exemption for religious organizations evidenced a neutrality toward religion, and the level of government support conferred by the exemption was within permissible limits in light of the fact that “either course, taxation ... or exemption, occasions some degree of involvement with religion.” Id. at 674, 90 S.Ct. at 1414. Indirect aid in the form of tax benefits may, in other circumstances, constitute state aid to religion in violation of the Establishment Clause. Committee For Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973) (“tax credit” to parents sending children to religious school). The basic tax exemption in this case is, on its face, more like that upheld in Walz, but the government “neutrality” advanced when such exemptions are granted takes on another aspect when the tax benefit goes to a religion-based school which practices, for whatever reason, racial discrimination.

The Constitution commands that government not provide any form of tangible assistance to schools which discriminate on the basis of race. Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973). In Norwood the Court remarked that the permissible scope of assistance to racially discriminatory private schools is even narrower than that permitted under the establishment clause — the Constitution is less tolerant of “neutral support” when the underlying effect is to subsidize racial inequality or segregation.

This is not to say that the tax benefit turns the University’s policy into government action for Equal Protection Clause purposes. We do think, however, that government must “steer clear” of affording significant tax support to educational institutions that practice racial discrimination.

8 . A law which penalizes a person indirectly for practicing his belief may violate the Free Exercise Clause, Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). The indirect nature of the “penalty” is, however, a factor to be considered in the balance.

9 . Walz upheld that New York property tax exemptions for religious organizations, for properties used solely for religious worship, did not violate the Establishment Clause. The Walz opinion permits such exemptions but does not require them.

10 . Taxation itself involves some degree of government involvement, but some degree of involvement is inevitable whether the tax exemption is granted or denied. Walz, supra, 397 U.S. at 674-675, 90 S.Ct. at 1414. We do not think the administration of tax laws or the “hazard of churches supporting government” violate the “excessive entanglement” prong of the Establishment Clause.