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Bruce D. Baker is a school finance expert at Rutgers University. He writes here that the changing legal status of religious schools opens the door to taxing churches.
On June 30th 2020, the U.S. Supreme Court determined that if a state has a program of providing public financing for private entities to provide educational services, that program cannot exclude from participation any institution simply because that institution is religious (see Espinoza v. Montana Department of Revenue). The decision involved a taxpayer financed tuition tax credit program providing vouchers for children to attend private schools, which under the state’s constitution (Blaine amendment), prohibited use of those vouchers at religious schools. This decision followed an earlier SCOTUS decision that prohibited Missouri from excluding religious institutions from access to a publicly financed program for playground refurbishing. These cases combined reverse a long history of state enforced Blaine Amendments which excluded the use of taxpayer dollars for religious institutions, even where taxpayer dollars were available to other private providers.
Of course, one difficulty with such provisions is having the government play any role in defining what is, or isn’t religion, when determining whether a tax benefit or public financing should be bestowed on an institution. Jedi? Religion! Church of the Flying Spaghetti Monster? Religion!…
If a state cannot exclude from access to taxpayer resources institutions simply because they are religious, a state also cannot exclude from taxation, institutions simply because they are religious. Indeed, to the extent that properties on which private schools operate are exempt, then this exemption would also apply to properties on which private religious schools operate. But the exemption would not extend to the church itself, or for example, rectories, religious retreats or other lands and buildings used solely for “religious” activities, including worship. The state cannot define religious activity in-and-of-itself to qualify as public service because the state should not be in the business of defining “religion,” and bestowing differential benefits on that basis alone.