In the aftermath of the Supreme Court decision mandating that states reward same-sex marriages throughout the nation, churches across the country prepare for the inevitable assault on their tax-exempt statuses.
“Beliefs” columnist for The New York Times, Mark Oppenheimer, wrote at Time.com that churches should have their tax-exempt statuses ripped away for opposing same-sex marriage. Felix Salmon at Fusion wrote the same thing:
[T]he US government subsidizes churches to the tune of many billions of dollars per year by giving them tax-exempt status. … The First Amendment guarantees freedom of religion, but that’s free as in love, not free as in beer. Taxation is a purely secular affair, and by default it applies to everyone equally, whether they’re a religious institution or not.
The left wishes for a nation where same-sex couples are given tax benefits for participation in a homosexual lifestyle, but where churches are punished for rejecting that lifestyle.
And it won’t stop with churches. The Christian Science Monitor asks whether conservative religious colleges will lose their tax-exempt statuses. Professor Michael Olivas of the Institute for Higher Education Law & Governance at the University of Houston said, “I don’t think that a number of these religious schools can reasonably hope to adhere to principles that are clearly in violation of public policy, a la Bob Jones.” As I wrote years ago, the Bob Jones University case, in which the IRS removed non-profit status from the university over its rules on interracial dating, will now be used as precedent by the IRS to go after non-profit institutions over same-sex marriage.
The crusade against religious churches and schools amounts to bigotry against religious believers – a bigotry clearly expressed by University of Virginia law Professor Douglas Laycock, who told The Washington Post, “The gay rights side keeps escalating its demands and public opinion keeps shifting in their favor. … Conservative believers are their own worst enemies and lead people to think they are hateful morons, so they’re not getting much sympathy.”
And this is the point: when public consternation governs the regulations on churches, we have violated the purpose of the First Amendment. There is no First Amendment right to tax exempt status, but as the Supreme Court wrote in Walz v. Tax Commission of City of New York (1970), the leading case on tax exemptions for religious institutions:
Grants of exemption historically reflect the concern of authors of constitutions and statutes as to the latent dangers inherent in the imposition of property taxes; exemption constitutes a reasonable and balanced attempt to guard against those dangers. … Elimination of exemption would tend to expand the involvement of government by giving rise to tax valuation of church property, tax liens, tax foreclosures, and the direct confrontations and conflicts that follow in the train of those legal processes. … The grant of a tax exemption is not sponsorship, since the government does not transfer part of its revenue to churches, but simply abstains from demanding that the church support the state.
The Court summed up that tax exemption for religious institutions “covers our entire national existence and indeed predates it.”
This, historically speaking, is true. As religious regulation expert Richard Couser wrote, “The notion of exempting churches from taxation did not begin in the United States. Medieval Europe, the Roman Empire under Constantine, and even Egypt in Joseph’s time exempted church property from taxation.” Erik Stanley, senior legal counsel of the Alliance Defense Fund, explained, “The unassailable fact remains that, for as long as anyone can remember, churches have always been tax-exempt or enjoyed favorable tax treatment.”
In the United States, tax exemption served the purpose of not excessively entangling the government with religious institutions, given that most civilized countries of Europe had established state churches sponsored by the government itself. The Founders – and most legislators and regulators throughout the history of the United States – understood that using the government to discriminate against particular churches would act as an abridgement of religious freedom. And the Founders would have been appalled by the federal regulations currently in place that crack down on pastors’ ability to speak politically from the pulpit.
Such regulations began in 1934 with a congressional amendment to the tax code, as Stanley points out. That amendment attempted to reject tax exemption for a church if a “substantial part of … [its] activities … is carrying on propaganda, or otherwise attempting, to influence legislation.” That amendment came after one legislator got upset with a church for campaigning against him based on veteran benefits.
In 1954, then-Senator Lyndon Johnson sponsored the Johnson Amendment, which labeled tax-exempt organizations those that did not “participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.” He sponsored the legislation because a rival secular non-profit opposed his candidacy. Now the IRS has expanded the regulations to include a bevy of possible violations in order to quash religious speech.
In short, politicians, given power over churches, would move to destroy those who oppose them. That is why tax exemption is an important aspect of protection for churches: the government’s attempts to smack down particular churches smacks of First Amendment-violating viewpoint discrimination. Either all churches should receive tax exempt status – which they should to prevent government specifically targeting religion, since the “power to tax involves the power to destroy,” as Chief Justice John Marshall put it in 1819 – or they should not. But the idea that government will selectively benefit those churches it approves makes religion an arm of the state, precisely the situation the First Amendment was designed to prevent.