Commerce in religion

Notre Dame Law Review

Volumn 84, Issue 2, 2009, Pages 887-912

  Meyler, Bernadette ^a  

^a MIT Sloan School of Management   (United States)

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EID: 62149107350     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (124)

1. For instance, detailing influential theorist of religion John Hick's account of how religions could be defined cross-culturally, Brian Hebblethwaite has written that Hick has become less optimistic about cognitive complementarity [among religions], and tends to fall back on comparable salvific efficacy. This means that the ultimate referent of religious language-the nou- menal Real, lying behind all phenomenal representations-becomes more and more vague and unknown as Hick's Copernican revolution gets further developed. As with Kant's noumenon, virtually nothing can be said about it. Brian Hebblethwaite, John Hick and the Question of Truth in Religion, in READINGS IN PHILOSOPHY OF RELIGION 383, 387 (Andrew Eshleman ed., 2008).
2. See Kent Greenawalt, Hands Off! Civil Court Involvement in Conflicts over Religious Property, 98 COLUM. L. REV. 1843, 1843, 1885-1906 (1998) (treating the "neutral principles" and "polity-deference" rationales for courts' refusal to adjudicate religious property disputes); Samuel J. Levine, Rethinking the Supreme Court's Hands-Off Approach to Questions of Religious Practice and Belief, 25 FORDHAM URB. L.J. 85, 87 (1997) (exploring the Court's expansion of judicial noninterference in deciding questions of religious belief and practice).
3. See Jared A. Goldstein, Is There a "Religious Question" Doctrine? Judicial Authority to Examine Religious Practices and Beliefs, 54 CATH. U. L. REV. 497, 498-504 (2005) (describing the Supreme Court's increasing tendency to avoid inquiry into matters of religious doctrine, culminating in the 1990 decision in Employment Division v. Smith, 494 U.S. 872 (1990)); see also Richard W. Garnett, Assimilation, Toleration, and the State's Interest in the Development of Religious Doctrine, 51 UCLA L. REV. 1645, 1652-60 (2004) (detailing and critiquing the Court's "no religious decisions" rule).
4. See Goldstein, supra note 3, at 526-27 ("Although no agreed meaning of the term 'religion' has emerged under the First Amendment, a problem that has long vexed courts and commentators, courts must nonetheless decide what constitutes a religion in construing the state and federal tax codes, the Religious Freedom Restoration Act (RFRA), the Free Exercise Clause, state constitutions, and hundreds (if not thousands) of statutes that give special treatment to religious bodies and religious practices." (footnotes omitted)).
5. Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter European Convention], available at http://www.echr.coe.int/nr/rdonlyres/d5cc24a7-dc13-4318- b457-5c9014916d7a/ 0/englishanglais.pdf.
6. See, e.g., Jonatas E. M. Machado, Freedom of Religion: A View from Europe, 10 ROGER WILLIAMS U. L. REV. 451, 480 (2005).
7. See Alec Stone Sweet & Helen Keller, The Reception of the ECHR in National Legal Orders, in A EUROPE OF RIGHTS: THE IMPACT OF THE ECHR ON NATIONAL LEGAL SYSTEMS 1, 7 (2008) (explaining that "[a]s a result of [various] developments, scholars and judges now engage in a lively debate about the regime's constitutionalization, and its possible constitutional futures" and elaborating that "it is undeniable that, in the 21st century, the Convention and the Court perform functions that are comparable to those performed by national constitutions and national constitutional courts in Europe," while "the Court itself has come to see its role in constitutional terms").
8. Id. at 6-7.
9. See infra notes 117-24 and accompanying text.
10. U.S. CONST. amend. I ("Congress shall make no law . . . prohibiting the free exercise [of religion] ....").
11. See, e.g., Rebecca French, Shopping for Religion: The Change in Everyday Religious Practice and Its Importance to the Law, 51 BUFF. L. REV. 127, 139, 195-99 (2003) (discussing "a shift in the nature of religion as evidenced in a move toward the displacement and consumer commodification of religion").
12. See, e.g., Jones v. Opelika (Jones I), 316 U.S. 584 (1942), vacated per curiam, Jones v. Opelika (Jones II), 319 U.S. 103 (1943); Cantwell v. Connecticut, 310 U.S. 296 (1940).
13. See infra notes 56-68 and accompanying text.
14. See infra notes 122-24 and accompanying text.
15. See infra note 75 and accompanying text.
16. See infra notes 118-24 and accompanying text.
17. See infra notes 83-104 and accompanying text.
18. See Bernadette Meyler, The Limits of Group Rights: Religious Institutions and Religious Minorities in International Law, 22 ST. JOHN'S J. LEGAL COMMENT. 535, 535-36 (describing the different roles of religious individuals and religious institutions in U.S. and European jurisprudence).
19. See Employment Div. v. Smith, 494 U.S. 872, 881 (1990) ("The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press ...."); see also infra notes 83-97 and accompanying text (discussing the ECHR's tendency to separate questions of religious freedom from those of free expression).
20. See infra Part II.
21. See infra notes 54-96 and accompanying text.
22. See R. STEPHEN WARNER, A CHURCH OF OUR OWN 14-15 (2005) ("In Europe, Christianity achieved a state monopoly in the fourth century, a religious establishment that was consolidated over the next thousand years. Recent centuries in Europe have seen the erosion of this establishment, an erosion properly known as 'secularization.' In the United States, secularization, or disestablishment, took place soon after the Revolution, when the First Amendment prohibition of a federal religious establishment was extended to the states.").
23. U.S. 78 (1944).
24. Id. at 86; see, e.g., Goldstein, supra note 3, at 510 {"Ballard thus announces that the Constitution cordons off a 'forbidden domain' that courts may not enter: courts may not determine the truth or falsity of religious claims." (quoting Ballard I, 322 U.S. at 87)).
25. See Ballard I, 322 U.S. at 85.
26. Id. at 79-80.
27. See Saint Germain Found. v. Comm'r, 26 T.C. 648, 656-57 (1956).
28. Ballard I, 322 U.S. at 79-82.
29. Id. at 81 (quoting the language of the trial court in advising the jury).
30. Id. at 83.
31. Id. at 84.
32. Id. at 93 (Jackson, J., dissenting). For example, Justice Jackson explained "that one knowingly falsified is best proved by showing that what he said happened never did happen. How can the Government prove these persons knew something to be false which it cannot prove to be false?" Id.
33. Id. at 94.
34. Ballard v. United States {Ballard II), 329 U.S. 187, 196-97 (1946) (Jackson, J., concurring).
35. Id.
36. Id.
37. Id. at 196 (Majority opinion).
38. See Saint Germain Found, v. Comm'r, 26 T.C. 648, 657 (1956).
39. See The "I Am" Activity of Saint Germain Foundation, http://www.samt germainfoundation.org (last visited Nov. 23, 2008).
40. Saint Germain Found., 26 T.C. at 660.
41. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 566 (1980) ("In commercial speech cases ... a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest."); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 761-65 (1976) (elaborating upon the reasons for protecting even commercial speech under the First Amendment).
42. See, e.g., Breard v. Alexandria, 341 U.S. 622, 641-44 (1951) (affirming a magazine subscription solicitor's conviction partly because "the fact that periodicals are sold," while not "put[ting] them beyond the protection of the First Amendment," does "bring [] into the transaction a commercial feature" that weighs against the solicitor in the balance between the First Amendment interests he derives from the magazine publisher and those of the private householder); Valentine v. Chrestensen, 316 U.S. 52, 54 (1942) ("[T]he streets are proper places for the exercise of the freedom of communicating information and disseminating opinion and . . . , though the states and municipalities may appropriately regulate the privilege in the public interest, they may not unduly burden or proscribe its employment in these public thoroughfares. . . . [T]he Constitution imposes no such restraint on government as respects purely commercial advertising.").
43. See infra notes 72-78 and accompanying text.
44. See Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 632 (1980) ("[C]haritable appeals for funds, on the street or door to door, involve a variety of speech interests-communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes-that are within the protection of the First Amendment. Soliciting financial support is undoubtedly subject to reasonable regulation but the latter must be undertaken with due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues, and for the reality that without solicitation the flow of such information and advocacy would likely cease. Canvassers in such contexts are necessarily more than solicitors for money. Furthermore, because charitable solicitation does more than inform private economic decisions and is not primarily concerned with providing information about the characteristics and costs of goods and services, it has not been dealt with in our cases as a variety of purely commercial speech.").
45. European Convention, supra note 5, art. 9; see also infra notes 75-76 and accompanying text (discussing the inclusion of proselytism in Article 9 of the European Convention, which protects freedom of thought, conscience, and religion).
46. ur. H.R. Rep. 212 (2003), available at http://www.echr.coe.int/ echr.
47. See infra notes 85-97 and accompanying text.
48. Article 10 of the European Convention reads as follows: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. European Convention, supra note 5, art. 10.
49. See Colin R. Munro, The Value of Commercial Speech, 62 CAMBRIDGE L.J. 134, 138-41 (2003) (elaborating upon the ECHR's treatment of commercial speech). Asa recent article explains, while commercial speech has not been highly valued by the ECHR, the court's rationale behind deferring more to member states' judgments when commercial speech is involved has not yet fully emerged. See generally Maya Hertig Randall, Commercial Speech Under the European Convention on Human Rights: Subordinate or Equal?, 6 HUM. RTS. L. REV. 53, 77-84 (2006).
50. Munro, supra note 49, at 135.
51. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762-64 (1976) (explaining that the fact that an advertiser's interests are economic does not in and of itself justify removing his speech from First Amendment protection, and contending further that "the particular consumer's interest in the free flow of commercial information . . . may be as keen, if not keener by far, than his interest in the day's most urgent political debate" and that "society also may have a strong interest in the free flow of commercial information").
52. See, e.g., R.H. Coase, Advertising and Free Speech, 6 J. LEGAL STUD. 1, 1-2 (1977) (arguing that there are equally compelling reasons for valuing speech in the marketplace of goods as in the marketplace of ideas); Martin H. Redish & Howard M. Was-serman, What's Good for General Motors: Corporate Speech and the Theory of Free Expression, 66 GEO. WASH. L. REV. 235, 255-60 (1998) (contending that "the listener's rights should be recognized as an independent basis on which to protect expression" and that giving these rights their proper due suggests the desirability of protecting commercial speech); see also Symposium, Thoughts on Commercial Speech: A Roundtable Discussion, 41 LOY. L.A. L. REV. 333, 338 (2007) (Kathleen M. Sullivan commenting) ("We fear government for speech more than markets; we have an anti-paternalism principle for government telling us what to think and say in a way that we don't have an anti-paternalism principle for government telling us how many hours we can work, or what wages we can receive, in part because we're afraid of government manipulating ideas and engaging in thought control as a means of serving other values. And when we tell people what they can hear or read, or listen to or watch, we're doing it to prevent ideas from reaching and influencing them. That has a different valence than the direct regulation of conduct.").
53. See C. Edwin Baker, Commercial Speech: A Problem in the Theory of Freedom, 62 IOWA L. REV. 1, 34-36 (1976) (emphasizing that speech functions as a manifestation of the self and that, on account of the profit requirement, corporations cannot be considered as possessing the same interests in self-expression as other individuals or entities) ; see also Symposium, supra note 52, at 336 (Steven H. Shiffrin commenting) ("I think one can also say [commercial speech] should be lower in the hierarchy of First Amendment values because of the-in the case of corporations in particular-lack of a liberty interest of the speaker.").
54. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 564 (1980) (excepting misleading speech from any First Amendment protection); Va. Pharmacy Bd., 425 U.S. at 771-72 ("Nor is there any claim that prescription drug price advertisements are forbidden because they are false or misleading in any way. Untruthful speech, commercial or otherwise, has never been protected for its own sake. Obviously, much commercial speech is not provably false, or even wholly false, but only deceptive or misleading. We foresee no obstacle to a State's dealing effectively with this problem. The First Amendment, as we construe it today, does not prohibit the State from insuring that the stream of commercial information flow cleanly as well as freely." (footnote and citations omitted)).
55. See supra notes 23-31 and accompanying text.
56. U.S. 584 (1942), vacated per curiam, Jones II, 319 U.S. 103 (1943). For a discussion of the historical context of this reversal, see Patrick J. Flynn, "Writing Their Faith into the Laws of the Land:" Jehovah's Witnesses and the Supreme Court's Battle for the Meaning of the Free Exercise Clause, 1939-1945, 10 TEX. J. C.L. & C.R. 1, 32-34 (2004), and William Shepard McAninch, A Catalyst for the Evolution of Constitutional Law: Jehovah's Witnesses in the Supreme Court, 55 U. CIN. L. REV. 997, 1034-40 (1987).
57. Jones I, 316 U.S. at 586.
58. See Murdock v. Pennsylvania, 319 U.S. 105, 119 (1943) (Reed, J., dissenting).
59. Jones I, 316 U.S. at 587 ("The court . . . found petitioner guilty on evidence that, without a license, he had been displaying pamphlets in his upraised hand and walking on a city street selling them two for five cents."); id. at 591 ("The jury was instructed to acquit unless it found the defendant was selling books or pamphlets. It returned a verdict of guilty.").
60. Id. at 592-93.
61. Id. at 597.
62. Id. at 598 ("If we were to assume, as is here argued, that the licensed activities involve religious rites, a different question would be presented. These are not taxes on free will offerings. But it is because we view these sales as partaking more of commercial than religious or educational transactions that we find the ordinances, as here presented, valid.").
63. Id. at 596-97 ("Casual reflection verifies the suggestion that both teachers and preachers need to receive support for themselves as well as alms and benefactions for charity and the spread of knowledge. But when, as in these cases, the practitioners of these noble callings choose to utilize the vending of their religious books and tracts as a source of funds, the financial aspects of their transactions need not be wholly disregarded. To subject any religious or didactic group to a reasonable fee for their money-making activities does not require a finding that the licensed acts are purely commercial. It is enough that money is earned by the sale of articles."); id. at 597 ("When proponents of religious or social theories use the ordinary commercial methods of sales of articles to raise propaganda funds, it is a natural and proper exercise of the power of the State to charge reasonable fees for the privilege of canvassing.").
64. Id. at 602 (Stone, C.J., dissenting).
65. Justice Stone's opinion in this case has sometimes been viewed as articulating a "Preferred Freedoms Doctrine," "heighten [ing] judicial protection to certain critical rights listed in the First Amendment" rather than simply providing equal treatment. Kurt T. Lash, The Constitutional Convention of 1937: The Original Meaning of the New Jurisprudential Heal, 70 FORDHAM L. REV. 459, 502 (2001).
66. Jones I, 316 U.S. at 609 (Stone, C.J., dissenting).
67. Id. at 608.
68. Id. at 612 (Murphy, J., dissenting).
69. Id. at 620.
70. Id. at 612-19.
71. Id. at 619.
72. Jones II, 319 U.S. 103 (1943) (reargued Mar. 10-11, 1943). For a discussion of the significance of the switch in Justices and an account of the gradual rise of Justice Stone's position on religious liberty from Minersvilk School District v. Gobitis, 310 U.S. 586 (1940), to the decision after reargument in Jones II, see generally Alpheus Thomas Mason, The Core of Free Government, 1938-40: Mr. Justice Stone and "Preferred Freedoms, "65 YALE L.J. 597 (1956) (tracing Justice Stone's decisions). See also David M. Levitan, The Effect of the Appointment of a Supreme Court Justice, 28 U. TOL. L. REV. 37, 57 (1996) ("Justice Rutledge took his seat on the Court on February 15, 1943, and on that very day the Court granted a petition for a rehearing and restored the Jones case to the docket for reargument. It was reargued on March 10 and 11, 1943, and was decided, and the earlier decision reversed, by a five-to-four vote on May 3, 1943. Justice Rutledge obviously cast the crucial and deciding vote, since none of the other Justices shifted their positions from the earlier decision." (footnotes omitted)).
73. See Martin v. City of Struthers, 319 U.S. 141 (1943); Murdock v. Pennsylvania, 319 U.S. 105 (1943).
74. Murdock, 319 U.S. at 108.
75. See id. at 109 ("The integrity of this conduct or behavior as a religious practice has not been challenged. Nor do we have presented any question as to the sincerity of petitioners in their religious beliefs and practices, however misguided they may be thought to be.").
76. For an excellent discussion of how the majority in Jones II attempted to bolster support for the practices of the Jehovah's Witnesses, whose movement was "unpopular and unfamiliar" at the time, by appealing to their similarity to the activities of more established groups, see Samuel J. Levine, Toward a Religious Minority Voice: A Look at Free Exercise Law Through a Religious Minority Perspective, 5 WM. & MARY BILL RTS. J. 153, 164-65 (1996).
77. Murdoch 319 U.S. at 111.
78. See id. at 110-12.
79. See Douglas v. City of Jeannette, 319 U.S. 157, 169-70 (1943) (Jackson, J., concurring in part and dissenting in part) ("The assumption that it is a 'non-profit charitable' corporation may be true, but it is without support beyond mere assertion. In none of these cases has the assertion been supported by such usual evidence as a balance sheet or an income statement. What its manufacturing costs and revenues are, what salaries or bonuses it pays, what contracts it has for supplies or services we simply do not know.").
80. See Murdock, 319 U.S. at 122 (Reed, J., dissenting).
81. Id. at 119.
82. Id. at 140 (Frankfurter, J., dissenting) ("The ultimate question in determining the constitutionality of a tax measure is-has the state given something for which it can ask a return? There can be no doubt that these petitioners, like all who use the streets, have received the benefits of government. Peace is maintained, traffic is regulated, health is safeguarded-these are only some of the many incidents of municipal administration.").
83. ur. Ct. H.R. (ser. A) at 6 (1993).
84. Id. at 17 ("As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a 'democratic society' within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, skeptics and the unconcerned. The pluralism indis-sociable from a democratic society, which has been dearly won over the centuries, depends on it. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to 'manifest [one's] religion.' Bearing witness in words and deeds is bound up with the existence of religious convictions." (alteration in original)); see also European Convention, supra note 5, art. 9 ("Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.").
85. ur. H.R. Rep. 212, 216 (2003), available at http://www.echr.coe. int/echr.
86. Id. at 216-18. Although Murphy was unsuccessful in his application to the ECHR, Irish law was subsequently somewhat altered in the aftermath of the adjudication of his case in Ireland. See G.F. Whyte, The Frontiers of Religious Liberty: A Commonwealth Celebration of the 25th Anniversary of the U.N. Declaration on Religious Tolerance- Ireland, 21 EMORY INT'L L. REV. 43, 53-54 (2007) ("Section 20(4) of the Broadcasting Authority Act of 1960 and Section 10(3) of the Radio and Television Act of 1988 prohibited the broadcasting of, inter alia, any advertisement 'which [was] directed towards any religious . . . end.' However, in 2001 this ban was modified somewhat by Section 65 of the Broadcasting Act of 2001 to permit the broadcasting of advertisements for religious publications, religious events, and religious ceremonies. Such was permitted, provided the broadcasts did 'not address the issue of the merits or other-wise of adhering to any religious faith or belief or of becoming a member of any religion or religious organisation.'" (alteration in original) (footnotes omitted)).
87. Murphy, 38 Eur. H.R. Rep. at 232. To the extent that the ECHR did deem the expression at issue religious, this determination did not aid Murphy's application. Instead, the ECHR has granted states a much broader margin of appreciation for regulation in the area of religious expression than in other spheres. See George Let-sas, Two Concepts of the Margin of Appreciation, 26 OXFORD J. LEGAL STUD. 705, 724-28 (2006) (explaining the ECHR's special treatment of expression that might offend others' religious or moral sensibilities).
88. Murphy, 38 Eur. H.R. Rep. at 229-32.
89. Id. at 235.
90. See id. at 236.
91. See European Convention, supra note 5, art. 10.
92. See Murphy, 38 Eur. H.R. Rep. at 233-38.
93. Id. at 236.
94. See id. at 238.
95. Id. at 234-38.
96. Id. at 238.
97. For a comparison of American, English, Australian, and German approaches to considering whether the Church of Scientology is a religion, see Paul Horwitz, Scientology in Court: A Comparative Analysis and Some Thoughts on Selected Issues in Law and Religion, 47 DEPAUL L. REV. 85 (1997). For a discussion of the widespread belief that Scientology is a commercial enterprise rather than a religion, see generally Benjamin Beit-Hallahmi, Scientology: Religion or Racket?, 8 MARBURG J. RELIGION 1 (2003). As Beit-Hallahmi writes, Since the 1960s, courts and governments have ruled that Scientology is a secular, profit-making organization, and should be treated as such. Thus, the tax-exempt status of the organization in France was revoked in 1985, after it had been determined that its aim was profit-making. Later on, Spain, Greece, Germany, and Denmark decided to treat it as a for-profit organization. Id. at 15.
98. Scientology Kirche Deutschland v. Germany, App. No. 34614/96, 89-A Eur. Comm'n H.R. Dec. & Rep. 163, 165 (1997). For an assessment of the respective treatments of Scientology in Germany and the United States concluding that the German approach to the movement has been more rigid than the American, see Michael Browne, Comment, Should Germany Stop Worrying and Love the Octopus? Freedom of Religion and the Church of Scientology in Germany and the United States, 9 IND. INT'L & COMP. L. REV. 155, 186-99 (1998).
99. Hernandez v. Comm'r, 490 U.S. 680, 684-85 (1989) (footnote and citations omitted).
100. Id. at 684.
101. Id. at 689.
102. See id. at 694.
103. See X. & Church of Scientology v. Sweden, App. No. 7805/77, 16 Eur. Comm'n H.R. Dec. & Rep. 68 (1979).
104. Id. at 68, 75.
105. Id. at 69.
106. Id.
107. Id. at 72.
108. Id.
109. Id. at 75.
110. Although dealing with commercial practice rather than speech, the ECHR case of Cha'are Shalom ve Tsedek v. France, 2000-VII Eur. Ct. H.R. 231, demonstrated a similar propensity for considering the commercial as potentially outside the purview of Article 9. In evaluating and rejecting the claims of a Jewish liturgical association of a right to perform ritual slaughter, the ECHR viewed France's assertion that "the applicant association's activity was essentially commercial, and only religious in an accessory way, since it mainly sought to supply meat from animals slaughtered by its ritual slaughterers which was certified ' glatt, and that it could therefore not be considered a 'religious body'" as falling within the State's appropriate margin of appreciation. See id. at 256.
111. X. & Church of Scientology, App. No. 7805/77, 16 Eur. Comm'n H.R. Dec. & Rep. at 72.
112. Id.; see also note 91 and accompanying text.
113. For the Commission's and the ECHR's tendency to devalue commercial speech, see supra note 49 and accompanying text.
114. X. & Church of Scientology, App. No. 7805/77, 16 Eur. Comm'n H.R. Dec. & Rep. at 74.
115. Id. at 73.
116. See id. at 74.
117. U.S. 680 (1989).
118. Id. at 684-89.
119. Id. at 691-92.
120. See id. at 705-08 (O'Connor, J., dissenting).
121. See supra text accompanying note 81.
122. Hernandez, 490 U.S. at 705-07 (O'Connor, J., dissenting).
123. Id. at 694 (majority opinion). The Court also indicated that there might be some circumstances in which the government would assess the value of a religious benefit not by looking at the recipient but instead by examining the cost to the provider of furnishing it. Id. at 697-98 ("In cases where the economic value of a good or service is elusive-where, for example, no comparable good or service is sold in the marketplace-the IRS has eschewed benefit-focused valuation. Instead, it has often employed as an alternative method of valuation an inquiry into the cost (if any) to the donee of providing the good or service.").
124. See id. at 691-93.