Theocrat Clerics to Stage Frivolous Tax Protest Stunt
To review (and, with the California gay marriage decision, to preview): The Internal Review Code requires all tax-exempt institutions to abstain from endorsing candidates for office as a condition of their preferential status. The restriction does not apply only to churches and does not apply to issue advocacy generally. Only endorsing particular candidates for particular offices is proscribed.
So how is this anything other than a disingenuous stunt aimed at the misinformed?
The Alliance Defense Fund announced a new initiative Friday that will challenge the tactics of groups that use the Internal Revenue Service to intimidate churches and pastors into silence on important issues of the day.“Pastors have a right to speak about biblical values from the pulpit without fear of punishment. No one should be able to use the government to intimidate pastors into giving up their constitutional rights,” said ADF Senior Legal Counsel Erik Stanley. “The government can’t demand that a church give up its right to tax-exempt status simply because the pastor exercises his First Amendment rights in the pulpit. Groups like Americans United intentionally trigger IRS investigations that will silence churches through fear, intimidation, and disinformation.”
The new initiative will equip, protect, and defend pastors who wish to exercise their First Amendment right to openly discuss the positions of political candidates and other moral and social issues from the pulpit. Participating pastors across the country will deliver a sermon along these lines in their own churches Sept. 28.
Read that again: “The government can’t demand that a church give up its right to tax-exempt status simply because the pastor exercises his First Amendment rights in the pulpit.”
To use the theocrats’ favorite jurisprudential stunt: Where in the Constitution does it say anything about a “right to tax-exempt status”?
“The First Amendment” is not an answer. The tax-exemption in no way unfavorably* singles out churches relative to other civic institutions. Any assertion to the contrary is an un-Christian lie. Nor does it force any such institution, religious or otherwise, to do anything or refrain from anything. Any assertion to the contrary is an un-Christian lie. Any church or cleric is free, at any time, to say anything they want about any candidate they want. All they have to do is give up their tax-exempt status (which, recall, Congress could simply abolish any time it wished). Any assertion to the contrary is an un-Christian lie.
The theocrats (whose Bibles seem to have been miraculously redacted of that pesky “render unto Caesar” passage) appear perfectly willing to completely misrepresent the First Amendment, the Internal Revenue Code, the case law**, and the nature of their record of flagrantly illegal (and un-Christian) abuse of the tax-exempt status that allows them to suck so shamelessly at the taxpayer teat.
Some have suggested that the true purpose of this stunt is to generate a test case in the courts. Yeah right, good luck with that. There is simply nothing to test — because, again, there is absolutely no theory of constitutional interpretation, by anyone of any political orientation, that would dare suggest that there is a First Amendment “right to a tax break.” It is beyond absurd.
More thoughts at Americans United, Religion Clause, Wall of Separation.
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*Indeed, some elements of the tax code actually treat churches more favorably than other civic institutions:
Although most organizations seeking tax-exempt status are required to apply to the Internal Revenue Service (“IRS” or “Service”) for an advance determination that they meet the requirements of section 501(c)(3), a church may simply hold itself out as tax exempt and receive the benefits of that status without applying for advance recognition from the IRS.
…
The unique treatment churches receive in the Internal Revenue Code is further reflected in special restrictions on the IRS’s ability to investigate the tax status of a church. The Church Audit Procedures Act (“CAPA”) sets out the circumstances under which the IRS may initiate an investigation of a church and the procedures it is required to follow in such an investigation.
–Branch Ministries v. Rosotti, 40 F. Supp. 2d 15 (D.D.C. 1999)
**Especially Regan v. Taxation With Representation, 461 U.S. 540 (1983):
Congress has not infringed any First Amendment rights or regulated any First Amendment activity. Congress has simply chosen not to pay for … lobbying. We again reject the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State.
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I'd like to apologize ahead of time for two things: (1) a very long comment, and (2) disagreeing with your premise.
Actually, churches do have constitutional protection, particularly with regards to income taxes. The relevant portion of the First Amendment, however, is not the "free speech" clause, but the "establishment" and "free exercise" clauses. These clauses kind of work against each other in the context of taxes, especially income taxes, which were not around at the founding (so the lack of a "tax-exempt" clause is inapt here—everyone's income was 'exempt'), thus it's not surprising that SCOTUS has had a very difficult time resulting in contradictory rulings on how these clauses relate to taxation of churches.
A key question is whether a tax exemption is a subsidy or not. SCOTUS originally said "No" in Walz, but changed its mind in Regan. The reasoning under Regan is plausible, but as a libertarian I am very much bothered by the interpretation of tax exemption as a subsidy because it implies that our wealth is presumptively the government's, except for what it allows us to keep.
But the fight under "establishment" isn't over quite yet; SCOTUS affirmed that any tax scheme would necessarily entangle the authorities with church operations, which is still constitutionally barred, though they implicitly provided a test for possibly getting around this in the case of certain taxes, e.g., property.
Churches have a stronger crutch remaining in the "free exercise" clause combined with the principle that "the power to tax is the power to destroy," affirmed in Murdock, which remains valid.
Personally, I would be perfectly comfortable seeing church property taxed. I think that is coming, but not before a test for "entanglement" has been refined, which will take at least one more constitutional challenge on "establishment" grounds.
I am extremely uncomfortable, however, with the prospect of church income being taxed. The courts would have to mangle the "free exercise" clause beyond recognition in order to justify it. They've done similar things before, so I won't be surprised if Murdock gets overturned, but I will be seriously bummed—like Kelo bummed, or Raich bummed.
When it comes to the IRS, you and I have the burden of proof to defend our income from taxation. Branch Ministries actually reiterated the fact that churches are presumptively exempt from income taxes—it's the IRS that has the burden of proof to show that an organization is not a bona fide church. In these new cases, the IRS is trying to make the claim that a church is not a church if it is used for political ends.
Believe me, I'm no fan of organized religion, but I am a fan of the Constitution, and the IRS is reaching on this one. Bob Jones is a weak leg to stand on here because there is a difference between a church function that competes against something a non-church institution could do (like running a university, or even a soup kitchen) versus moralizing from the pulpit, which is kind of central to what churches do, even if it is politically motivated. (Can you separate politics from moralizing? I don't think I can.)
So, contrary to what you're starting with, here, I'm afraid the tax-exempt status held by churches is not the result of favorable legislative treatment, but the result of first amendment protections (other than "free speech") that pre-date the Constitution, and have been successively boxed in by legislatures as far as they could get away with up to this point.
One more thing (sorry). Upon rereading the last part of my post, I think I went one step too far in the "IRS is reaching" comment. I was referring to their attempt to exert unilateral power to decide what is or isn't a church activity, versus the narrower point you started with, i.e., enforcing the prohibition against endorsement of candidates. Clearly, they have this authority–Branch Ministries decided that.
Let me step back to my point that I think the Church's tax exemption would survive the more expansive interpretations of 503(c)(3), or even its complete elimination, at least until Murdock got completely overturned.
OK, I went back to look at the cases, and I was wrong–well, incomplete anyway.
There does appear to be a First Amendment bar against certain kinds of taxes, i.e., license or franchise taxes, or fixed fees of any kind (Murdock, Follett). But no such bar exists on generally applicable percentage taxes, as long as they can overcome "entanglement." Although this latter item has never been tested with regards to income taxes (aside from rulings on exemptions), I wouldn't bet against the constitutionality of even with our incredibly intrusive tax code surviving a Free Exercise challenge.
So, the government can't require me to pay a fixed $1.50 fee for preaching bull to the gullible, but they can require me to spend 36 hours of my time to prepare an income tax statement. Is this a great country, or what?