By Marc Randazza
President Trump promised to get rid of a law that restricts churches from engaging in political speech. Trump said he would "totally destroy" the Johnson Amendment. That law is believed to say that if a church endorses or campaigns for political candidates, it loses its tax exempt status.
The result has been a wave of shock. Why, I can't explain, since it was one of his campaign promises.
There seems to be a perception that the Johnson Amendment only applies to religious organizations. Trump's words themselves seem to contribute to this misinformation.
"I will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution."
And that is sort-of true.
The full truth is that the law applies to all organizations that claim tax exemption under Section 501(c)(3).
Under the Internal Revenue Code, all section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office. Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity. Violating this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes.
However, these organizations can still do non-partisan political activity. They can conduct "get out the vote" drives, non-partisan political education programs, and public forums on political issues. They just can't promote one candidate over another.
As a First Amendment advocate, I have a bit of a problem with any law that causes a citizen to have to check his speech, lest the government take some punitive action. I realize that it is a bit more complex than that. One could say it isn't "punitive," because it is really just that these organizations get a conditional subsidy. Adhere to the conditions, or lose the subsidy. Fair bargain, right?
I support the idea of getting rid of the Johnson Amendment – at least for churches. Political speech is the core of the First Amendment. Freedom of Religion is right smack next to it. I don't want a priest refraining from giving a particular line in a sermon because it would create negative governmental action. I similarly don't want someone to feel like they have to check their participation in the political process for the same reason. But, when I merge freedom of religion and freedom of speech, it really becomes troubling.
So, I'm down with this idea.
But, there's a catch.
Churches themselves should not be able to claim tax-exempt status.
In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court gave us a three-part test to determine whether governmental conduct violates the Establishment Clause: (1) it must have a secular purpose, (2) the government action must have a principal or primary effect that neither advances nor inhibits religion, and (3) the government action may not foster an excessive governmental entanglement with religion.
Permissible conduct must satisfy all three requirements. Edwards v. Aguillard, 482 U.S. 578, 583 (1987); Vernon v. City of Los Angeles, 27 F.3d 1385, 1396-97 (9th Cir. 1994). Despite the colorful potshots that conservative justices like Scalia have taken over the years, Lemon remains good law. (Scalia wrote “like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 397 (1992)).
Is there a "secular purpose" in giving churches tax exempt status? Perhaps you could argue that. Does it foster an "excessive governmental entanglement with religion?" You could argue about that too. But, giving a church exempt status seems to "advance religion."
Churches are businesses. Maybe some are awfully unprofitable. Others are wildly profitable. When I see megachurch pastors with private jets, and I know that my law firm has to pay taxes, but that prick doesn't, that makes me start to wonder how I can turn my firm into a church. We are subsidizing houses of worship, and that is where the problem lies — not in the Johnson Amendment itself. And this isn't just a federal issue. When you see a church being built in your town, go look at your property tax bill. How much lower would it be if that church paid taxes? Ok, maybe one church doesn't change anything, but what if all of them had to pay their fair share?
Would some of them have to close up shop? Perhaps. So what? Would any church argue to me that they couldn't keep the doors open with tithes and contributions? Why not? If your church isn't important enough to you that you would give your money to keep it open, then why should the rest of us have to subsidize it? If your church catches fire, my fire department comes to put it out. I pay my share, why shouldn't you?
The best way to solve this problem would be to recognize that churches should be taxed like any other business. Then, let them proselytize to their hearts' content.
So to merge the arguments, why shouldn't churches feel 100% unconstrained from being part of the political process? Many people vote the way they think their imaginary friend wants them to. Many people listen to religious leaders when it comes to politics. What is more political than religion? At the same time, religion is a business. There's no denying that. It might be the second oldest profession.
Lets face it, religion did not start because mankind needed a structure for its superstitions. No, religion was started by the first con man. When everyone else was out hunting antelope and gathering berries and getting eaten by dinosaurs 6,000 years ago, one guy (I think his name was "Frank") said "fuck, I would really rather stay in bed."
So Frank tells everyone "hey, the sun is actually a guy, and that guy talks to me, and that guy says you need to bring me antelope steaks, and I gotta stay here and talk to the sun."
Well you know what Frank? Fuck you, go get your own antelope and berries. And if you want to then tell me who to vote for, in between bites, fine.
Marc Randazza is the national president of the First Amendment Lawyers Association
Last 5 posts by Randazza
- Randazza: Public Masturbation as Protected Speech? - May 15th, 2017
- Randazza: 400,000 Reasons to be a Good Little Pet - May 9th, 2017
- Randazza: No Laughing Matter - May 8th, 2017
- Randazza: What is at Stake in the French Election - May 7th, 2017
- Randazza: I was on Infowars (and I liked it) - April 26th, 2017
One problem has been that conservative churches have been muzzled, afraid or unable to speak their minds politically. Left-wing "liberation theology" churches do not seem to be under such tight constraints. The laws, and the APPLICATION of the laws, should be the same in both cases – and I do not believe that it has been.
President Trump has, in TWO WEEKS, really started to dial back the size and burdensomeness of the Federal government. His "two for one" approach to diminishing the scope of the Regulatory State is a welcome development. I wish him well, and I hope that he continues.
I don't think we need to repeal the Johnson Amendment. As you said, it applies to all tax exempt non-profits.
I think that many tax-exempt non-profits receive quite a bit of their income from government grants. Allowing them to be involved in campaigns greatly raises the likelihood that some will specifically receive government grants that would be used for political purposes, especially to campaign for their preferred candidates.
It would make the system far more open to corruption and it would be legal. Running for reelection? Channel millions of dollars to friendly tax exempt non-profits that they can use to campaign on your behalf. That is hardly something we would want to see.
We might as well just provide federal funding for all the Political Action Committees (PACs) out there.
This is one of those cases in which everyone, left or right, should be very wary. Remember the old saying: Be careful what you wish for — you might get it.
Mr. Mitchell, I assume that your specific conservative church has notably lax standards as to the consumption of hallucinogens, seeing as you are obviously seeing illusory persecutions where none in fact exist. I appreciate your use of "I do not believe it has been" when describing the application of laws, so that we can all understand that your attempted statements of fact are, indeed, statements of faith.
Ken Mitchell, why don't you believe that is has been applied equally? Can you provide an example of it being applied to "conservative churches", that is, an example where tax exempt status was actually removed from a conservative church as a result of an application of the Johnson Amendment?
I'll wait …
Churches already wield significant influence over their congregations in regards to what values/parties/candidates they should vote for and donate to. Other nonprofits, even those making a 501(h) election and able to circumvent the expenditure cap by mobilizing armies of volunteers can hardly compete. While I'd like to see this as a potential leveling of the playing field, my gut tells me that churches have so much more money to throw around than other classes of nonprofits that without taxing them as normal businesses (something I cannot see happening under the current administration), it's just going to be even more unbalanced.
The solution for this issue is obvious; stop giving tax dollars to non-profits. I'm all in favor of charities; I give MY money to causes that I support. I don't want the government giving my money to causes that THEY support. Cut taxes, let the people make their own charitable donations, and eliminate the middle-man. Classic capitalism!
(citation needed)
I love this man!
Ken Mitchell, why don't you believe that it has been applied equally? Can you provide an example of it being applied to "conservative churches", that is, an example where tax exempt status was actually removed from a conservative church as a result of an application of the Johnson Amendment?
I'll wait …
Marc Randazza wrote:
How about the Powerhouse Church of the Presumptuous Assumption of the Blinding Light?
As a religious man myself, I have to strenuously disagree with your description of Frank. I'm also a little hesitant to describe (most) churches as businesses.
With that said, I agree with the core of your argument. Churches ought to be able to discuss politics and endorse candidates without fear that it will impact them. Also, it is appropriate to view tax exempt status as subsidy and the government ought not to subsidize religion, even if it does so for all of them.
There is a counterargument that "the power to tax involves the power to destroy". McCulloch v. Maryland, 17 U.S. 159, 210 (1819). The government ought not have the power to destroy churches either. But so long as the taxes are applied as they are to any other business and not in any way targetted at the church, they are not being used to destroy.
Churches ought to be taxed as though they were a business, and given free reign to discuss politics as much as they wish.
@Ken Mitchell: the "two for one" thing is window dressing, designed to appeal without necessarily changing anything. Suppose you want to introduce a regulation Z. So you need to repeal two… and pick regulation X and regulation Y. You then publish your new regulation, which suddenly looks like the text of X and the text of Y and the new text of Z. Problem done!
As to the poor muzzled conservative churches… which are these? Try to be specific. And then you might have to deal with the awkward fact that Christianity does talk about helping the poor and the needy, and remarkably a lot of alleged liberals also talk about helping the poor and the needy, which makes it very hard to distinguish between people that are talking politically and those that are, you know, Christian.
There's a problem with the picture. Cthulhu couldn't use that argument in 2016.
Exceedingly well argued in the legal, political and moral spaces. But from the POV of a biologist, the only dinosaurs around 6000 years ago were birds, and birds don't much fancy eating people who aren't already dead. /pedantry
@TimothyAWiseman:
It's probably not necessary or even desirable to tax churches exactly as if they were businesses — in theory they are lacking the profit motive, so most of them would wind up in the non-business "hobby" category in any case.
What would be more useful would be to remove the tax deductibility of gifts to non-profits, which (given the fairly generous standard deduction and the slightly progressive tax rates) mostly amounts to a tax break for wealthy people, anyway.
Let us not forget that the parishioners may always exercise their full rights as individuals; it's the institution that is restricted from voicing an opinion. It's true that the opinion of an institution is generally that of it's management, and the management is allowed to individually express their views, but once they stray into the institutional role, that role should be managing their charge.
That said, I do think it's a reasonable trade-off that the privilege of tax-exempt status carry some behavioral requirements. (This sort of thing feeds in to recent corporation-as-person cases.)
There is no free lunch. If you want freebies from the government, be that tax exemption or actual funds, then you're obligated to the government and they/we get to set the rules. Want to be a church be be political? No problem, be a 501(c)(5)…politic all you want but your donors can't take a tax deduction.
I like your overall approach to the problem. There are categories for not-for-profit companies and I see no reason some churches wouldn't fall into that slot. For the mega-churches that have jets, bus fleets, etc, tax 'em!
Heliophage says February 3, 2017 at 2:26 pm:
Whoosh!
@En Passant
It was pretty clear to me that he got that ("from the POV of a biologist" was a big hint), and from my perspective you appear to have Whooshed yourself…
As has been shown by the crash of 2008, capitalism in this country is rarely 'Classic'. The people with the money – churches – would be able to influence laws that apply to them just as banks have been able to do (in fact you can argue this case is just that). I enjoy the idea of a free market, I've just never seen one.
If your Planned Parenthood clinic/Boys and Girls Club/food bank/etc. catches fire, my fire department comes to put it out. I pay my share, why shouldn't you?
The logic is the same.
Obviously you're a Democrat who hates Jesus.
@DRJlaw: Meerest pendantry.
"I know that my law firm has to pay taxes, but that prick doesn't."
Maybe if you structured your law firm like a religious order. There would be an abbot, some monks, nuns and novices, and you could receive clients in your holy vestments as long as they donated $500/hour for the privilege of your attention, and if it is God's will, you would win your case with the IRS.
@OrderoftheQuaff
Ahahahahaha, thank you for that on a long Friday afternoon :)
@Randazza What are your thoughts in getting rid of tax-exempt non-profits entirely?
IANAL, but it seems to me that most churches do enough charitable work that they could probably claim tax-exempt status as charitable organizations.
Wouldn't donating to a church be basically the same as donating to the symphony, or the art museum, or the Boy Scouts, or NPR? You're supporting a non-profit that provides some kind of cultural product you think is important to people in general.
Removing religious organization's tax exempt status seems like it would be penalizing them in relation to other non-profits, not taking away an advantage they have.
@Z
Perhaps, but let us assume that all of that is absolutely true. Many churches will say that their charge is the morality of their parishioners. Politics and the government deal with many issues which have at a minimum moral aspects to them. The church thus has an institutional view on these issues and ought to be able to both express it and directly petition the government regarding those issues.
Can I ask whether an Islamic benevolent association (not a mosque) can be regarded as a section 501(c)(3) organization? If not, how – in the eyes of the law – are they different from Christian groups?
What many such as Dave seem to either not understand or ignore. Is that churches are a privileged type of non profit. They do not need to apply for non profit status. Nor fill out public disclosures, or anything at all in order to skip out on "rendering into Ceasar" (as their saviour Jesus put it).
In other words they literally have to say the magic incantation "I am a church" to suddenly be free of tax obligations.
This also means on the rare occasions when the fraud is overwhelmingly obvious and the government declares the person not to be a church, the government automatically "establishes religion" in violation of the Constitution, by decided what is "legitimate religion" and "illegitimate religion".
If churches followed the same rules as any other non-profit that would be fine.
@Ken
Problem with this is that Charity suddenly need to use their money on getting more money instead of helping people. If they focus on a smaller group people don't care much for, getting the word out and getting people actually donating to the cause at all is expensive, and maybe even impossible, resulting in dropping a whole population group on the floor just because people weren't interested in helping at the time.
Believing that Capitalism actually can help all the people that need help is a beautiful thought but really not much more than that. Humans are too fickle for us to be sure that they will keep funding the cause at a steady pace.
"Wouldn't donating to a church be basically the same as donating to the symphony, or the art museum, or the Boy Scouts, or NPR? You're supporting a non-profit that provides some kind of cultural product you think is important to people in general.
Removing religious organization's tax exempt status seems like it would be penalizing them in relation to other non-profits, not taking away an advantage they have."
@Greg: There's a key difference here. The Constitution says that "Congress shall make no law respecting an establishment of religion," but it does not say "Congress shall make no law respecting an establishment of nonprofits." Public subsidies that need only be justified by a rational basis when paid to nonreligious entities are constitutionally impermissible when paid to religious entities.
If you think that having priests, pastors, rabbis, imams, and (etc.) telling their congregants whom to vote for doesn't, you're not thinking.
There's nothing wrong with (c)(3)s being exempt per se. The problem is that there's effectively no IRS oversight, let alone enforcement.
Are you kidding?
Because religious institutions provide services that benefit the common good and general welfare of the community as a whole and not just their congregants. Unless they don't, in which case the answer is again oversight.
Non-profit tax law is a thing, and not a simple one. Believe it or not, thought has gone into it, including thought about the First Amendment. Try looking into it.
@Richard Smart —
Any kind of benevolent association, whether religious or not (patrolmen's, etc.) is a (c)(3) exempt organization. All (c)(3)s are either private foundations or public charities, from a tax perspective. Churches and benevolent associations are both the latter.
If the prohibition on political campaign intervention by (c)(3)s were lifted, there would be even more dark money in politics than there already is via (c)(4)s, which are also exempt organizations. And it would be much, much darker. Churches don't even have to file 990s.
@Randazza, totally-thorough-thinker-through-of-things on that last point, btw.
ON EDIT:
Donations to (c)(4)s are not deductible for the donor, however. To (c)(3)s, they are. So you could totally get a write-off for buying an election undetectably under the very seriously considered Randazza protocol, which totally merited being broadcast to a wide readership, of course.
@TimothyAWiseman:
I would be fine if churches and other non-profits weren't taxed as though they were a business. If an organization can demonstrate that nobody is cashing out and that everything is reinvested in whatever into doing something nominally for the public good, I am quite fine with them not being taxed on the years they happen to collect contributions much faster than they spent them. I could go either way on some other exemptions such as the tax-exempt certificates that allow them to avoid paying sales taxes.
My main objection is an issue others have alluded to, which is the exemption on property tax. When you're talking about dollars spent to the far off federal government, it's distant enough that I can only think of a tax exempt organization as free-riding in the most abstract way. However, at the local level, property taxes tend to specifically pay for local services that more directly benefits everyone, and if someone is retaining the benefit of all of these services without paying for them, they are free-loading in a very real way. This is why Boston has a payment in lieu of taxes program in which large non-profit landowners such as Harvard and MIT make voluntary payments to offset local government costs.
Honestly, I would like it if more normal religious leaders were more vocal about politics. I've never been too concerned with hearing the religious arguments about political issues, but if I'm going to consider them, I'd rather hear them from a guy who is first and foremost a priest or a rabbi, who happens to have political views, rather than a guy like Jesse Jackson, who is a political activist first and a Reverend second, or many of the self-styled conservative Christian politicians and pundits who have never served as religious leaders, who have never attended seminary, but somehow make a living by telling the rest of us how Christians should feel about certain issues.
@Iforgotmyname
the fact that the Left has no many political leaders with "Rev" in front of their names, and the number of event held at churches is a very good indication that there is no chilling effect on the left from this law.
This isn't proof that there is a chilling effect or uneven enforcement on the Right, but if some people say there is a chilling effect, and one side seems unaffected by it, that sure seems to indicate that whatever effect it has is not evenly applied.
As a bonus, withdrawing tax exemptions would also wash the stain of the United States government having to treat con-job cult organisations like the Church of Scientology to preferential tax status.
Of course, by doing this, it would also make it significantly easier for charitable organisations to openly attack the President and his horrible policies!
This atheist totally agrees with taxing churches. We'd also find out how religious many rich really are if they didn't get these tax deductions.
@David Lang: Your argument seems to be that you can think of a lot of public figures 'on the left' with Rev. in front of their names, and remember various events for 'the left' held at churches, but you can't bring to mind similar things on 'the right'; therefore the law must not be evenly applied.
Perhaps you and other posters arguing that the law is meanly and unfairly used to pick on conservative faith groups are engaging in a kind of meta public performance?
The idea that Churches should be taxed is a non-starter, and would have startled the hell out of the founders. Of course so would the widespread notion that "separation of church and state" is somehow enshrined in the Constitution or Bill of Rights. I'm not saying that taxing churches is wrong, necessarily, just that there are windmills out there one could tilt at with much better chance of actually toppling one.
The Johnson Amendment, OTOH is an abomination. All attempts to muzzle political speech, no matter what the justification, are abominations. Were I running things (which the good gods forbid!) I would repeal each and every 'campaign finance reform' law, and anything similar. None of them have noticeably improved the tenor of elections, and every one boils down to an attempt to silence political activism. OK, the political activism targeted (at least in public) is incredibly self-serving and corrupt. So what? Government should not have the authority to pass judgement on speech, because somehow the government will inevitably make such judgements to the benefit of the entrenched government. Anyone who doesn't see that probably believes in the easter bunny.
@C.S.P. Schofield:
Yeah, but what about the idea that individuals could reduce their own tax burden by giving to the church?
@Patrick Maupin,
Since that is an artifact of the income tax, I suspect it would have baffled and possibly enraged them … but not because it made giving to a church attractive. The idea that the State could and should grow large enough that it would need to demand a significant portion of everybody's living is very, VERY new. The cold fact is that much if what the State does, it does badly and should stop. Much more is only any of its goddamned business if you conceive of the State as standing in Loco Parentis to the populace, a concept that on examination is revolting.
We almost certainly won't unravel the State from our lives in my lifetime, or the lifetime of anyone living. Indeed, my expectation is that repeated attacks by Islamic imbeciles will drive us toward an Imperial State (and a radioactive Mecca). But it isn't a good trend.
The rules on what can and cannot be a religion are so broad, that you are effectively establishing religion by making any separate law for churches. And I certainly think churches should be expected to disclose their spending/etc. But I don't think that they should cease to be tax-exempt entirely.
They should be treated like any other advocacy organization. iAfter all, an atheist can claim religious objection to violence, but that doesn't mean that anyone saying "Violence is never okay" is a pastor. Anything believed with the strength of religion counts as a religious belief.
Also, you say "what about all the churches in my town?" Well, all the churches in MY town is about 15. But not everyone lives in a town like mine. Some live in a town where there's only one church, that church is barely holding on, because people are donating their spare cash into it, but unfortunately they don't have enough money to pay for even basic repairs.
The number of poor and struggling churches vastly outweighs the millionaire megachurches and even the well-off suburbanite ones. And those churches are often in towns where they're effectively the community center of the town.
I don't think we should be taking away church's tax-exempt status. Rather, I think we should be taking away the separate category of 'church' that's treated as something different from any other nonprofit entity.
Tough shit for the church then. The market has spoken. I'm sure that its parishioners have plenty of money for beer, cable TV, and cigarettes. If none of those things are less important than keeping the church open, then the church isn't important enough for me to subsidize it.
@Randazza:
It's even simpler than that — most of the people going to a really poor church aren't going to be able to get above the standard deduction with charitable contributions anyway. The tax deduction for charitable contributions is a tradeoff to make giving more palatable to rich people, who still don't give as much (as a percentage of their income) as poor people.
@C. S. P. Schofield:
I'm sure the founders thought the government needed to be supported, and would have realized that eventually it would have to tax its citizens for support.
The size thing — when it gets qualitatively big enough to be a quantitative problem — differs in everybody's mind.
But in any case, my point was, no matter how you slice it, making gifts tax-deductible makes the problem worse by increasing the entrenched incestuousness of the whole thing.
If taxes are not a problem, you don't need to do that.
If taxes are a problem, tax deductibility is a band-aid that is being applied instead of lancing the boil.
@Patrick Maupin,
"If taxes are a problem, tax deductibility is a band-aid that is being applied instead of lancing the boil."
You have a point, but not really a very realistic one. There was a time – a fairly long time – when the government was paid for largely by property taxes, tariffs, and fees. It also didn't do one hell of a lot. Those days aren't coming back, and in the present its enough that we can keep anything out of its rapacious maw. Sometimes a band-aid is what you are going to get, if you are lucky.
Oh, well. When the Camel-Pesterers goad us into conquering the Middle East, the first few couple of decades will probably show a profit, and the trend toward tyranny at home shouldn't show up until I'm safely dead.
@C. S. P. Schofield
> Sometimes a band-aid is what you are going to get, if you are lucky.
But the problem is, it's not luck to have the band-aid. The band-aid is not only not lancing the boil, it's letting powerful interests get a tax deduction for their preferred speech at the expense of of the rest of us.
If you rip the band-aid off, even if you don't lance the boil, then the argument about whether the church is allowed to participate in politics becomes practically moot.
> Tough shit for the church then. The market has spoken. I'm sure that its parishioners have plenty of money for beer, cable TV, and cigarettes. If none of those things are less important than keeping the church open, then the church isn't important enough for me to subsidize it.
Once again, you're assuming a situation where people have plenty of disposable income. And two of those are addictions. There someone is doing something they shouldn't, because they are compelled to.
Churches in a lot of these towns are basically communal necessities. Would you be okay funding a community center, counseling clinic, or drug treatment programs in your area? Or do you say "Hey, if people can buy beer and cigarettes, and they don't want to donate money to a community center, then why should I?"
Because in a lot of areas of this country, those aren't separate. They can't all have their own thing. They all get bundled into the local church. Joel Osteen runs a business. Take away his exemption, he'll pay an army of ivy-league educated accountants to figure out a way around it. But the person who runs the only church in a town of five hundred won't. He'll likely have to close the church down, and all of the vital services that church does provide – Meeting place for community groups, crisis counseling, support networks – Will vanish.
As I said. I think the existence of the category of church violates the establishment clause. I think a church should be treated as if it was any other organization. The definition of 'religion' is eternally in flux. What is and is not a religion today is not what was and was not a religion to a man in the 17th or 18th centuries, when early colonizers of India found the Indians there to have 'no religion.' But would you really say a Hindu, Jain, Buddhist, or Sikh is not religious?
To define a church, no matter how broadly, is to define a thing to be religion and other things to not be. At the same time, I think churches should be tax-exempt, for the same reason any other educational/advocational/cultural organization is tax-exempt. Promoting the idea that God exists may be factually incorrect, but it shouldn't be any different from promoting general education.
In advocating for making churches not tax-exempt, you are adding an additional requirement on speech. It's okay to spread any ideas you like, so long as it's not this specific set of BAD ideas, they can't be spread as freely as the other ones. You're advocating for using the law to get rid of a type of speech – Religious proclamations – That you don't like.
A pastor believes that God exists every bit as much as a geologist believes in the creation processes of various rocks. But to say that churches should not be given tax exempt status, while someone creating a foundation that would meet to discuss geology weekly should, is to say that one of those ideas should be considered different under the law. It privileges a certain epistemology, and thus, a certain set of ideas that spread from that epistemology. But epistemologies cannot prove themselves. They have to have something assumed. You can't use the Bible to prove that the Bible should guide your decision making. Similarly, you can't use use induction, to prove induction.
Since both the geologist's induction and the pastor's faith rely on them accepting something inherently unprovable – Though not necessarily untrue, I would hardly argue that induction is a bad way to reason – then selecting any one to get rid of is saying people who hold certain beliefs should be treated differently. Defining religion establishes religion, by allowing certain ideas to be held as a whole separate category. It's as arbitrary as a campus speech code.
For that reason, of course, I also object to the fact that churches are treated as a special type of nonprofit, where they aren't held to things like financial disclosure, and are generally given more lenient treatment. In that case, the geologist and his society are being arbitrarily punished for their ideas, because the government has declared them not to be a religion, but the person who believes in God is a religion, and his weekly discussion group benefits from that. Either way requires violating the establishment clause.
The solution should be to stop arbitrarily treating religious belief as something deserving of special treatment, at least in as far as religious organizations go. For personal actions, that's another matter.
Are you saying that religion and geology… oh never mind. Completely hopeless.
@Randazza
Come on, dude, you've got to be kidding.
I've no real competence to comment about the legal discussion, but the part about how religion "was born" sounds like a really crude satire of what a gnu atheist would say (and often sadly actually says). It's not just wrong, it's also really dumb.
L says February 5, 2017 at 3:26 am:
Yeah, everybody knows it wasn't Frank who said "fuck, I would really rather stay in bed."
It was J. R. "Bob" Dobbs.
Or so I've heard.
@Jono793,
Glad you mentioned Scientology (which, ironically, has nothing to do with science). IIRC, they fought long and hard with the IRS to get that tax-exempt status. I don't know if that status enabled them to become a billion dollar outfit, but it surely helped.
I don't think the mega-churches will have a problem with taxes, they'll find offshore tax havens like the mega-corporation do.
. .. . .. — ….
@Patrick Maupin,
I guess that at this point I no longer care too much how money is being kept out of the gaping maw of the State. Y'wanna give tax breaks to heroin pushers? I'm for it. Why? Because nothing I have ever creditably heard of a heroin dealer doing with his money is going to cause as much social damage as giving it to the State.
I have watched the cut taxes/no, cut spending first argument my entire adult life. I'm not sure there IS an answer, but it's damn clear that no actual cuts in real spending (as opposed to phantom cuts in projected increases) are going to happen while the parasites we have in Washington think "there's always more where that came from". Choke the bastards off. When they are cannibalizing the little bitty (under a million) programs to fund their hobbyhorses, then we'll be getting somewhere.
Probably not going to happen. As I've said many times, I confidently expect to see the shift from Republic to Empire in my lifetime. Some Islamic idiot will set off a really BIG bomb; a dust initiator or fuel-air (I don't think they could make a nuclear bomb before they died of radiation poisoning). Something that kills tens of thousands. Something that really does get the country seriously ANGRY. (Want to know what happens when you do that? Ask the Japanese for references. Be polite, they're touchy about it.). I put up with idiot hobby-protesters carrying Bush=Hitler signs all through the man's term. How did I know they were hogwash? They morons carrying the signs never vanished between two days. The idiots saying much the same about Trump (how he must LOVE them, They make him look so reasonable!) don't disappear either. How will we know when America has gone Imperial? When the first bunch to protest the way Mecca was bombed get thrown into jail so hard they bounce, and their demands to see their ACLU lawyers are answered with "Where's the problem. They're in the next cell!"
I'm 56. I'll die before the new Imperium begins to crack down on Middle Class white guys. And the new colonies will bring in a profit, at first, and the economy will heat us for a while, even if it is just a fever. So it won't actually bother me personally. But it was a nice Republic while we had it.
@Tobias Hawkes
As a geologist I find your pathetic attempt at an analogy laughably pretentious.
Joseph Smith's faith (to pick a recent, well documented example of a religious founding not necessarily to pick on Mormons.) did not help him in his many attempts to divine for "treasures" nor did it save him from the bullet in the end, and it certainly didn't help him in writing his riff on the bible.
A geologist's "induction," with support from the many scientific tools now available, can be used to ascertain the history of a geographical area. Not in the "How many angels could have possible danced on this rock" sense, but in the "drill 600m down at this point and you will hit oil."
Plate tectonics is not a belief. It just is. Seafloor spreading will continue whether or not you, or anyone else "believes" it to be true.
Tobias- Liberty University, perhaps?
@Tobias Hawke
Agree with your assessment. It seems to me that almost all the 'we should tax churches' arguments come from those with a general antipathy towards all religion which makes me doubt that there is any real agenda beyond trying to silence speech they don't like.
What's that saying about the dangers of making laws based on extreme cases? Deciding whether or not to treat churches as businesses using the less than 1% that abuse people's goodwill would seem to be an example of that.
I'd also point out that, like all regulation, it would over-burden the marginalized. The Catholic Church, the Mormons, the Scientologists, the Mega-Churches would blink once or twice and adjust their revenue flow while the rural churches, inner city churches, and those serving smaller populations would fold.
If churches were to be treated as businesses in my town, I think the giant mega-church on the corner would probably do okay but the mosque, hindu temple, and the Spanish-speaking Church of Christ would struggle.
@Ken Mitchell: Still waiting on the citations to back up your initial point.
@Sparkles says
"As a geologist I find your pathetic attempt at an analogy laughably pretentious."
Perhaps geology doesn't fit. Fine. Pick some other field of study for the analogy. For many fields taught in University there is a laughably low standard for what constitutes truth.
This is a huge, huge, misunderstanding. Or, at least, only one of multiple explanations, of which others are more plausible.
You are cheating by imagining a 'Frank' in your mind who is, basically, as smart as you are, and smarter than his peers. So he cons them, because obviously Frank is smart, and a smart person would, you know, know that the sun is actually just a huge ball of fire in the sky.
Except they don't know that. The most fundamental basics of reality you learned before you can remember are a total mystery to these guys. From their information set it is actually more plausible that the sun is controlled by a super-person than some scifi argument they couldn't even fathom.
Plus, the reason we think that's a stupid argument is because someone tried it already, and over time humans realized it didn't work.
Think about it — at the time there is actually no proof or evidence that praying to a sun God doesn't work. We only assume it's stupid because people tried it, and it didn't work.
I don't know about you, but if my entire village and families life depended on the sun and rain, and I had no prior evidence to suggest they weren't controlled by someone, and my entire frame of reference is not informed at all by fundamental science. Then some guy named Frank says "hey, if you all give me a small piece of meat and water and shit, I'll sit around and experiment with, like, paintings and weird prayer beads to see if I can convince some sun or river bro to give us more of the good stuff." I'd be totally down, sounds like a good idea.
Ah yes, the old "not taking is the same thing as giving" argument.
I have given you literally hundreds of thousands of dollars Marc, and you have not shown me one iota of gratitude. Not even a bootleg copy of one of the porn blooper reels you have lying around the office.
@C. S. P. Schofield
Categorical statements like this are unserious.
I'm a fan of the public highway system. I'm happy that the fire department responds quickly when the guy down the street sets his kitchen on fire with his toaster oven. I like standardized road signs and air traffic control procedures. I'm a fan of Jim's Chemical Emporium being prevented from dumping toxic effluvia into the stream that runs through my property that I like to get fish for dinner from once in awhile. I'm a fan of meat inspectors. (It's hard to sue someone when you're dying of mad cow disease.) I like being able to visit public parks and I'm glad that public investment in the sciences has paid off so well. I like it that trash is picked up regularly from my neighborhood and it doesn't just collect on the sidewalk. And I'm pretty pleased that I can call the cops when my neighbor has a late night loud party or his dog threatens my kids. It's good that I'm paid for my work in a currency that I can trade for goods, effortlessly and painlessly, anywhere in the country.
@Marc – it has been said that the power to tax is the power to destroy. Whilst I agree with the sentiment regarding private jets and US churches (do churches from any other country have such filthy rich "pastors"?), I do think that this proposition would seriously run afoul of the 1st amendment, and would also be ripe for abuse (though I also think the current situation is also being abused by some).
@Argentina Orange
It is when the thing you're taking is being pretty directly used to offset the costs of services that you gladly accept the benefits from. Your argument's a bit more compelling when it comes to state or federal level taxes going God knows where, but at least where I grew up, I don't recall any houses of worship deciding that they were grateful that the government didn't take from them, and in response, they wouldn't take from the government. In fact, I recall some churches being among the first to call the police to take care of troublemakers (who were, now that I'm a bit more familiar with the subject, for the most part probably just exercising their First Amendment rights.)
Now, if you're willing to give everyone, not just churches, the option to opt out of local taxes if they're willing to waive any right to access the sorts of services those taxes pay for, I might support that.
@David Lang
You said one accurate thing:
You mention "the number of event held at churches," but what you conspicuously decline to do is mention a number. I've been to local fund raisers for Reagan and George HW Bush held at local churches. I've heard that they do that for liberals, as well. My personal experience, and yours, has next to zero evidentiary value as to whether there is a chilling effect, let alone an uneven one. So give me a number. Tell me something like how many events held at houses of worship support Democrats and left causes, versus how many events supporting GOP and candidates on the right. Or maybe another metric: Cash raised, for example?
Let's test your logic out. Some people–the vast majority of whom are conservative–complain that registration laws, waiting periods, background checks, etc. are all excuses to restrict the right to own and carry firearms, with an aim at repealing the 2nd Amendment entirely. By your rationale, that means that restrictive firearms laws must be disproportionately impacting conservatives.
Objectively speaking, this claim is incorrect. The majority of restrictive gun laws impact very blue states and cities, in part because conservatives are the ones who care and complain and fight off this sort of laws, and liberals don't.
@IForgetMyName, but if conservatives are by and large the people who care enough to (try to) buy guns, couldn't restrictive gun laws still be largely affecting them? Sure, it'd also affect a minority of liberals – but AFAIK, we don't know how those numbers balance each other.
@Randazza
Making up convenient fictions to justify your position =/= reason- and fact-based response to the point raised.
The condition stated was that a church in a small town couldn't afford to make basic repairs, let alone pay its taxes, although the parishioners were giving what they could.
Unlike your little scenario above, that's a common real-life condition. (See, eg, black churches all over the country from Harlem to the deep south.)
So what do you say? "F*ck those people, if they were really devout they'd be rich"? Or what?
Additionally:
I don't know how I overlooked that one the first time. They're completely free to exercise their right to political speech to their heart's content, ffs. What they can't do is use their religious (and/or moral, in the case of other, non-church (c)(3)s) authority to endorse or oppose any candidates — ie, they cannot take out ads saying that G-d wants you to vote for (or against) Donald Trump, for example. That's not a meaningfully burdensome constraint on speech.
I suggest checking out the Americans United for the Separation of the Church and State website, if you want to get retroactively acquainted with what you're posting about.
Ann,
You keep complaining abut all the poor churches and how impossible it is for them to survive without taxpayer subsidies. Find me the bible story where Jesus said, "ask Cesar to give you a tax break, over everyone else, with special rules that no other non profit gets to use".
AFAIK Jesus actually said "foxes have holes, birds have nests but the son of man has nowhere to lay his head". "Give to him that asketh of thee", "he that hath two cloaks let him give to one that hath none".
A church can meet in a living room if everyone is to poor to pay for a building, Jesus mentioned he would be there regardless of the decorative splendor. BTW your prior comments (and everyone else's) also conveniently ignore that churches DO NOT have to comply with reporting and charitable rules requirements that other non profits do, and basically are given tax exempt super powers by the magic incantation word: CHURCH.
If you don't finish the question, I can't answer it.
Am I saying they are equally true? No.
Am I saying there is no reasonable basis to regulate the ability of a non-governmental entity to discuss either one? Yes.
There is no purpose behind arbitrarily grouping together one group of ideas, and treating them differently from other ideas. My church cannot be a research society, even if that society meets weekly to discuss its findings. My church cannot be a fan club, even if that fan club meets weekly to discuss the latest developments in the fiction. My church cannot be a book club, even if my book club meets weekly to discuss a new book.
If we meet weekly to discuss geology, if we meet weekly to discuss Doctor Who, if we meet weekly to discuss literature – We are held to a different standard than if we met weekly to discuss God.
The Bible is a book. But if I have a group that meets weekly to discuss most any OTHER book ever printed, I have to follow more and different regulations, than if we're discussing the Bible. How is that appropriate? Why should the Bible be treated any differently from Harry Potter? The fact that it is, means that the Government is stepping in and establishing one of those two books to be worthy of special treatment. By establishing that a certain set of actions counts as "Religion" while another set does not count as "Religion," you are either privileging or punishing followers of religions which require those actions.
Right now, they're privileged. Religion has been established by the government. It's not just Christians and Atheists. The person whose religion does not have a post of leader, or whose meetings are regulated differently, or whose belief in the necessity of their actions does not accompany a belief regarding morality – Has their religion punished. Removing the tax exemption, rather than removing the idea that there's such a thing as a 'church' separate from other groups altogether, simply switches who's rewarded. It violates the establishment clause either way.
To instead say that your Church, however important it is to YOU, is no different to the STATE from the LASFS, does not establish religion, because it does not give any priority to what ideas you have and how you discuss them.
Do I think that geology and religion are both "Equally true" and that a seismologist is as good as a pastor at describing earthquakes? No.
Do I think it's ridiculous that one of those has to jump through additional hoops to do that? Yes.
You leave Cesar Millan out of this! (Sob).
Riiiight — because that's how we make all our decisions about religion, free speech, and various human rights. If the market doesn't support it, then it's clearly no good.
Imaginary evidence is imaginary.
Tobias Hawke
"Do I think it's ridiculous that one of those has to jump through additional hoops to do that? Yes."
The thrust of your comment seems to entirely invert who has to jump through special hoops. It ain't religion or churches. They have ZERO rules to get their tax exempt status, and only one completely UNENFORCED rule to keep it: Don't become a political organization. All other non profits are required to keep EVERY rule churches do (just one) plus thousands of additional rules including robust disclosure requirements.
If churches had a level playing field instead of special rights, the howl of "persecution" would rise to a crescendo that would drown out a hundred super bowls.
@Alconnelly
I haven't even done that once.
I'm not basing my opinion on scripture. In fact, I can't think of anything less relevant to the question. If that's where you're at, more power to you. But since reason has no applicability to faith, I'll just leave you to it.
@Evan P
I see your point, but I still disagree with it. As a libertarian, a lover of guns, and a guy with better-than-average-lawyer math skills, I generally believe that people whose freedoms are curtailed by any law are affected by the law, even if they're too stupid or uninformed to care, and whether or not they're particularly inclined to exercise the freedoms being curtailed.
Ken and others have repeatedly made this point regarding free speech: It's not the speech that is popular, inoffensive, or coming from those with power and privilege that need to be protected by the First Amendment. If we repealed the First Amendment right now, most of the things that most of us say would still be fine, on the short term. I have never felt the need to take time off to go exercise my right to protest in the streets–however, I would certainly be worse off if the government took away that right.
Similarly, I tend to think that gun laws–with the possible exception of registration requirements–tend to be implemented in ways that least impact how the majority of locals use their guns. The only guys I know who support the cosmetic assault weapons type bans are guys who don't use guns at all, or old-timers who are already disdainful of ARs because they're not as [insert adjective here] as long rifles.
Also, if you believe the pro-gun arguments regarding crime rates (I find them compelling, though not conclusive) and the correlation between lower violent crime rates and easier access to legal firearms, then everyone living under restrictive gun laws are negatively affected by them, whether or not they care to own a gun themselves.
Also, I don't know if by this statement you were asserting your own facts, or inaccurately restating my previous statements.
My argument was never premised on conservatives trying to buy more guns (though they probably do); it was premised on conservatives being much more vocal concerning even tiny encroachments on gun rights. I know quite a few moderates and liberals who don't buy guns falling under California's assault weapons ban and aren't lobbying to have the law changed (generally from a combination of buying in to the local government's right to implement some restrictions if it serves a legitimate interest, and not wanting to die on that particular hill.) These people are happy to use an AR-15 when they're in other states and many owned them before they moved. I get the feeling that by your logic, these people aren't "affected" by the law because they're not complaining about it and not actively trying to break it. In my eyes, these people are directly impacted because absent the law, they would likely be making different choices.
Then the general thrust of my comment has been misinterpreted. I don't believe I said anywhere that I thought Churches had far too many regulations. I think the opposite, and I said multiple times, I think requiring things like disclosure for churches, rather than taking away a tax-exemption altogether, is ideal.
I think it's ridiculous that you get far more leniency when your organization is engaging in behavior that is deemed by the government to be 'religion.' I don't advocate getting rid of church's tax-exempt status, as Randazza does here, but I DO advocate getting rid of their special classification of tax exempt entities. Either they should have more requirements, or all tax exempt entities should have less. My personal preference would be that they should have more. It's way too easy to pull the wool over your parishioners eyes, and use their money in a way they would never have approved of when they gave it to you. However, if the only way out of it is that other entities having less, I suppose that I could live with it.
Lets talk about unions. Do they allow political activity. Yes. Are they allowed tax exempt status. Yes, 501(c)5 organization are allowed tax exempt status.
All for granting the abolishment of the johnson amendment. However, if we want to remove the tax exemption for religious organizations, then we need to do the same for unions. Or else, also abolish the ability of unions to engage in political activity. Fair is fair.
@Alconnelly
Apart from not filing 990s, churches have to observe the same rules as all other (c)(3)s. And the IRS Exempt Organization division does not audit based on a review of those anyway. Nobody reads them. (And the disclosure requirement is not in fact robust.) There's virtually zero oversight for any of them.
Nevertheless, churches and religious organizations can and do get audited. And if the audit finds a related-party transaction, or private benefit, or inurement, or any of the other potential violations of the tax code, the penalties are the same. You're just wrong.
@Ken Mitchell:
*looks around at the churches in GA*
I haven't seen that problem AT ALL down here. Don't know where you're at. Hell, during the election you could go to any SB church and here the pastor/minister/whatevs screaming from the pulpit about how anyone who didn't vote for Trump would be damned to hell forever.
Not really. It's vague as hell, does not require that you get rid of regulations but only identify ones to get rid of, and doesn't differentiate between different types of regulations. It'll be confusing as shit to implement unless the wording is redone to be more specific.
Giving to charity is RELIGIOUS SOCIALISM and no good capitalist should engage in it. Since you engage in religious socialism, I assume you are a Democrat?
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@TimothyAWiseman:
OK, that's fine. Keep in mind, though, that once the pastor endorses a candidate, to not vote for that candidate is to disobey God. Would you risk eternal damnation for doing so? The right-minded citizen would not.
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@David Lang:
And that's why you don't pay attention to what people say. You pay attention to what they do. Anyone can say anything. If people say there is a chilling effect, I sure haven't seen it. So I'd say they're full of it unless they can prove otherwise.
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@C. S. P. Schofield:
The income tax is over 100 years old at this point. That's not "very, very new" at all. And it's enshrined in the Constitution, unless you think you can get an Amendment anulling it.
Christ, is this another anarcho-capitalist "The State should be burnt to the ground" argument? Thought that crap went out with Clarkhat.
Obviously, not to a lot of people, and certainly not through history, especially if you include the dynasties of China.
And then there are those who believe the Church should be standing in Loco Parentis to the populace.
Or the Corporation.
Do you want them to come back?
Because I have stories from my grandparents and the three generations from them going back about how shitty everything was unless you had money and power. Being the Town Boss or what not.
I'll take that bet. Want to put a 100 on it?
*dismisses* Won't happen.
Ann:
Your comment stating:
"Apart from not filing 990s, churches have to observe the same rules as all other (c)(3)s. "
Is 100% wrong!
A church is not required to file for 501c3 or any other tax exempt status to declare themselves tax exempt. That is IRS law!
When you file for tax exempt status there are a massive amount of rules you must agree to comply with regarding self dealing, number of unrelated board members, bylaws etc. By filling out the application you have to list out numerous factors regarding all of that, and agree to abide by thousands of pages of regulations.
If a church does not apply (some do so voluntarily and I have zero problem with those), the only risk the church takes, is that at some point the IRS investigates and declares that they are not a "church", (an infinitesimal risk, I did a google search and found not a single church that declared itself tax exempt and never filed for the status with the IRS that the IRS later declared to not be a church and therefore not exempt, although I am guessing out of the hundreds of thousands there are a handful that exist) in any case even then the only consequence is that any parishioners who claimed a tax break on a schedule A in the prior three years would technically have their tax break disqualified, however they would individually have to be audited in an entirely unrelated audit, and the IRS agent would have had to cross reference that donation with the IRS case, for it to be relevant, so pretty close to zero chance of it happening more than a few times in the over a billion tax returns over a decade or so.
Just a few words there:
Our Lady of Perpetual Exemption.
How to show the ridicule of a pretty generous tax exemption, by John Oliver.
(The worst part of this being how easy it is to found a "church".)
@Alconnelly
Yes, I know. For that reason, it's not something that I feel any need to get all exclamation-point-y about. But yep. They sure don't.
That has nothing to do with whether or not those rules also apply to churches. They do.
However, as I already said, all of it is largely moot, because there's virtually no oversight or enforcement. If there were, the Trump Foundation would have been audited out of business years ago, just to cite one example of a blatantly obvious non-philanthropic set up. I mean, it's clear at first glance that something's awry with that. Same for all those Abramoff (c)(3)s. At least one of the latter was (in fact) an LLC, which (c)(3)s aren't allowed to be. It said so right on the top line of their 990. But nobody busted them, because nobody reads those things.
In practice, churches are neither more nor less likely to run afoul of the IRS as a result of their not having to apply or file disclosures (which, incidentally, a number of them do though not required, simply to be on the safe side).
FTM, EOs that normally have gross receipts of <$25,000 also don't have to file, and (as with churches) that's strictly honor-code-based.
I don't know where you got the idea that the requirements are "robust." They're barely even robust enough for paper-compliance to be strictly necessary a lot of the time.
@Alconolly @Ann, while I understand you guys are having your conversation that's no longer about my point, I would like to reiterate it just to make sure I'm heard before I'm off.
I think that, regardless of how much more strenuous the requirements are, and regardless of WHO they effect more, the point is that there is any difference at all, and that is what I object to.
@Randazza
I have another question.
The same might be said of FIRE and the ACLU. Should we also stop subsidizing them? And if not, what's the distinction, beyond your privileging your own personal affinities over those of others?
Right now, the difference is that the ACLU and FIRE have to file and make public a Form 990 and churches don't. Why is that?
Either they shouldn't, or churches should, but that's irrelevant to the actual question that Ann asked, in response to the actual point that Marc Randazza made.
Randazza is arguing against churches being tax exempt at all. Not against churches not having to file a form 990. Which means that the presence or absence of a form 990 has no baring on what Randazza said.
@Tobias Hawke —
Exactly. That is indeed what I'm asking. Thanks.
There shouldn't be any such thing as a tax exempt organization, of any kind.
God does exist and there is plenty of actual proof that a man Jesus lived, died by crucifixion and was seen by hundreds from believers, to Jews and romans. You may choose to not follow him, but if we engage in actual intellectual discourse there is proof. God so loved the world that he gave his only begotten Son, that whoever believes on him may have eternal life and not die the second death. Jesus loves you even when you spit in his face like the accusers at his crucifixion. He continues to beckon to you your entire life to listen to the still small voice of his pleading before it is too late. If it takes until your imminent death, like the thief on the cross to cry, "Lord, remember me when you come in your kingdom" he will, but how much better would your life be if you choose to follow him now instead?
This comment is nothing about the legal merits you raise.