A bad argument for tax privileges

In 1983, Bob Jones University lost a Supreme Court fight to hold on to its tax exemption in the face of its revocation by the IRS for reason of the university’s discrimination against blacks on religious grounds. The Court held that religious beliefs do not trump public policy, and evangelicals have been worried about that decision ever since.

They have been especially worried since this exchange during the Supreme Court hearing on marriage equality:

Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax­exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a 10 university or a college if it opposed same­-sex marriage?

General Verrilli: You know, ­­I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is­­ it is going to be an issue.

Y’all can probably guess how the Holy Men think it should be decided.

Here, endorsed by no less than Russell Moore, the head of the Southern Baptist Conventions Ethics and Religious Liberty Commission, is an example of the sort of reasoning they have begun advancing as a justification of perpetuation of their tax privileges even if they continue to discriminate.

The argument we must make is rather simple. Take the Religion Clauses of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” and then take this passage from McCullough v. Maryland: “All subjects over which the sovereign power of a State extends are objects of taxation, but those over which it does not extend are, upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self-evident.”

That government may make no law establishing religion or prohibiting the free exercise thereof is a clear statement that the power of government does not extend over the subject of religion. Therefore, religious institutions are exempt from taxation, not by tax code, but by self-evident, sound principles. That’s the simple summary.

To see how flimsy and self-serving this argument really is, we need to do only one thing: Take it seriously.

The First Amendment protects four rights: religion, speech, press, and assembly. Are we to understand that the income earned by public lectures should be shielded from taxes? Would that include the Clintons? What about singers, musicians, artists, and strippers? Should their incomes be shielded?

What about book publishers, magazine publishers, music publishers, and bloggers?

Should any public place where any sort of public assembly is held be shielded from taxes? Stadiums, arenas, reception halls, restaurants with meeting rooms?

And let’s not forget the Second Amendment, which affirms the right to bear arms. Should gun, rifle, and bullet manufacturers be shielded from income taxes? What about defense contractors?

Does anybody actually believe that was the Founders’ intent?

As it happens, there is no need to guess at their intent. James Madison, the Constitution’s primary theorist and certainly no village crank, addressed this question. In 1785 — a mere 2-years before adoption of the Constitution — when the Commonwealth of Virginia proposed “A Bill establishing a provision for Teachers of the Christian Religion,” it was Madison who led the opposition to the bill.

Because the establishment proposed by the Bill is not requisite for the support of the Christian Religion. To say that it is, is a contradiction to the Christian Religion itself, for every page of it disavows a dependence on the powers of this world: it is a contradiction to fact; for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them, and not only during the period of miraculous aid, but long after it had been left to its own evidence and the ordinary care of Providence. Nay, it is a contradiction in terms; for a Religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy. It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence and the patronage of its Author; and to foster in those who still reject it, a suspicion that its friends are too conscious of its fallacies to trust it to its own merits.

The raft of tax privileges accorded to churches and pastors are, self-evidently, no more than underhanded assessments.

There is no reason to believe that Madison ever changed his mind. In 1817, contemplating the provision of chaplains to Congress, he wrote this:

Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?

In strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation.

The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles: The tenets of the chaplains elected [by the majority] shut the door of worship agst the members whose creeds & consciences forbid a participation in that of the majority.

That should settle forever the question of tax privileges for churches: they are unconstitutional.

Let’s not forget, either, what Benjamin Franklin had to say about compulsory public support of churches:

When a religion is good, I conceive it will support itself; and when it does not support itself, and God does not take care to support it so that its professors are obligated to call for help of the civil power, it’s a sign, I apprehend, of its being a bad one.

The claim that the Constitution protects religious institutions from taxes is no more than intellectually dishonest special-pleading.