The infrastructure of religious freedom: Balkin responds

A few days ago, in this post, I commented on Jack Balkin's recent speech, "Two Ideas for Access to Knowledge– The Infrastructure of Free Expression and Margins of Appreciation," and asked:

What if we substituted "religious freedom" for "free expression"?  Does religious freedom require an infrastructure?  If so, "[w]hat is in that infrastructure"? 

Here are Balkin's thoughts, in response.

There certainly is [such an infrastructure]. Freedoms like speech, press, and religion require more than mere absence of government censorship or prohibition to thrive; they also require institutions, practices and technological structures that foster and promote these freedoms. . . .

So what are the infrastructures of religious freedom? They include a wide range of private institutions-- churches, educational institutions, and charities. They also include many of the same structures and technologies that undergird freedom of speech, because religions are usually perpetuated through communication and education, just as cultures and ideologies are.

Religious freedom faces a special problem, however, because the U.S. Constitution limits the forms of infrastructure that the government can provide. The Constitution forbids federal and state governments from making laws concerning establishments of religion or that establish religion. Hence some obvious methods for creating an infrastructure of religious freedom are not available to governments that would be available to promoting freedom of speech more generally. . . .

Therefore, government can play somewhat less of a role in providing the infrastructure of religious freedom than it can in the case of free expression. Much of the slack will have to be made up for by private action, including private charity. With respect to the latter, however, government can play and has traditionally played an important role. Governments have allowed deductions for contributions to religious organizations and religious charities, and they have traditionally allowed churches and other religious charitable organizations exemption from property taxes as part of a general exemption for charitable and educational organizations. . . .

So far, I think I'm on board.  There's more . . .

It standing governmental tax policies that treat religious organizations the same way they do other charitable and educational institutions.

Thus, although the Establishment Clause prevents the government from singling out religion for special benefits to create an infrastructure of religious freedom, it does not prohibit the government from creating infrastructural elements that benefit both religious and nonreligious expression alike.

I don't agree here, I think.  Sometimes, the government may single out religion for special treatment -- i.e., because it is religion -- without "establishing" religion or violating the freedom of religious conscience.  I am intrigued by, and attracted to, Balkin's "infrastructure" suggestions, but am not so sure that the Constitution limits government to building up that infrastructure accidentally, i.e., in ways that assimilate entirely religious freedom to free expression.