Taxing Religious Freedom

By Scott Weiser

Is a threat to eliminate the tax exemption of churches that endorse candidates or political parties posed by a 1954 law called the “Johnson Amendment” a constitutional infringement on the rights of church leaders to freely express themselves from the pulpit?

At ColoradoPolitics.com, Deb Walker, executive director of Citizens Project writes, “Government may not subsidize political endorsements through tax exemption,” and that “The Johnson Amendment ensures that citizens of all faith traditions (or no faith tradition) are not inadvertently financially supporting church-based politicking.” There are two failures in reasoning here.

First, the reasons for exempting churches from taxation are distinguishable from those that apply to other types of charitable organizations. Whereas the law may exempt secular charities because it deems that the charitable purposes provide public benefits that outweigh the need to tax such activities, the principle of not taxing churches originates in the constitutional, philosophical and political foundations of our nation.

The Supreme Court examined this principle in Everson v. Board of Education, a 1947 case affirming the authority of a state to provide funding for school busses to transport children to Catholic schools in New Jersey writing, “The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife and persecutions, generated in large part by established sects determined to maintain their absolute political and religious supremacy. These practices of the old world… began to thrive in the soil of the new America…Catholics found themselves hounded and proscribed because of their faith…men and women of varied faiths…were persecuted. And all of these dissenters were compelled to pay tithes and taxes to support government-sponsored churches.

The people [of Virginia], as elsewhere, reached the conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax…[in order to] interfere with the beliefs of any religious individual or group.

The ‘establishment of religion’ clause of the First Amendment means at least this…no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.

This sounds as if the Court would hold that New Jersey has no authority to provide taxpayer-funded school busses for Catholic schoolchildren, but that’s not case. What the Court pointed out in affirming that policy is that “the amendment commands that New Jersey…cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Nonbelievers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.” (Emphasis in original)

The second error is that a tax exemption is not a subsidy. An exemption from a tax is not giving the person or group exempted something they don’t already have. Neither a taxpayer not affiliated with a religious organization nor the government has something taken from them that goes to a church merely because the church doesn’t pay a tax. Therefore, a tax exemption does not mean that the public is “financially supporting church-based politicking”, nor does it mean that the government is entangled “in underwriting partisan political activity.”

Where the Johnson Amendment and Walker go wrong is in failing to understand that when it comes to religion the taxing power of Congress has a constitutional hurdle it must overcome that doesn’t apply to conventional non-religious charitable organizations.

The historic truths cited by the Supreme Court stand for the proposition that the government cannot tax religious institutions in ways that inhibit the free exercise of religion just as much as it does the proposition that it cannot tax anyone for the purposes of advancing religion.

Thus, when it comes to religious institutions it’s questionable whether or not the 501(c)(3) rules apply at all because it is the First Amendment itself that arguably prohibits the taxation of churches because religion-suppressing taxation has always been as formidable an enemy of religious freedom throughout history as religion-supporting taxation has, as the Supreme Court points out and as the Founders went to great pains to avoid.

Religiously motivated speech is a constitutionally protected aspect of religious liberty that cannot be suppressed by the threat of anti-religious, anti-free-speech government taxation. This includes the freedom of both ministers and others to preach in favor of or against any political party or candidate or any other matter that they believe would either threaten or support their rights to religious freedom.

Originally published in the Daily Caller

Political Islam Is Incompatible With America

By Scott Weiser

What is “religion” and what aspects of religion does the First Amendment protect? This is a question that our leaders and our society are reluctant to ask. We see frequent recourse to the text of the Constitution itself where it says “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof” but there is precious little debate about what the word religion actually means in that context.

The Founders were determined to broadly protect an individual’s right to believe whatever he wishes, but at the same time they were cognizant of the risks of too broad an acceptance of how people might choose to put their beliefs into action.

James Madison remonstrated in 1785 against Virginia’s attempt to pass a law providing for government support of “Teachers of the Christian Religion,” writing “we hold it for a fundamental and undeniable truth, ‘that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.’”

In Cantwell v. Connecticut, the Supreme Court described this principle with greater precision, writing “Thus, the Amendment embraces two concepts — freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection.

It is clear that our laws distinguish between religious belief and religious practice, the former being a matter of conscience that is absolute, unalienable and not subject to government control, and the latter most certainly being subject to reasonable time, place and manner regulations in the public interest. This is why polygamy is unlawful as is the practice of human sacrifice and religiously motivated rape of children that landed pedophile Warren Jeffs in prison for life notwithstanding his religious belief he was entitled to “marry” twelve year-old girls.

With this important distinction in mind we now may address the conundrum of the duality of Islam that has for too long rendered us impotent to control the fundamentally evil practices that threaten the very foundations of our nation. What we can now do is to distinguish religious Islam from political Islam and address each separately within the context of the Constitution and the First Amendment.

Religious Islam is what Muslims believe with respect to their deity, their prophet and their desire to live a certain way. Political Islam is how they propose to impose their religious beliefs upon others.

The former is entirely up to Muslims to determine. What they believe and how they choose to worship among themselves is well protected by the First Amendment, as it should be. The latter is another matter entirely.

Nothing in the First Amendment prohibits Congress or any lower level of government through the 14th Amendment from regulating acts performed by Muslims in pursuit of their religious beliefs where such acts impinge on the rights of others to be free of force or violence. And this extends to engaging in seditious conspiracies to overthrow the government and replace it with political Islam.

This is an essential distinction that is almost universally ignored in the debate about how Islam might integrate into our culture peacefully. Say “Islam” or “Muslim” and people tend to automatically conflate the religious beliefs and the political practices into one monolithic thing that either can be prohibited or cannot be prohibited depending on which side of the issue one stands.

But this is simply not the case. Defining and setting political Islam apart from religious Islam is not only appropriate, lawful and necessary, it is the only way to protect that which our American ideals value with respect to freedom of religious belief while simultaneously protecting our American values with respect to offensive and dangerous political ideology and practice.

Just as it is lawful to prohibit the entry of Communist aliens to the United States because Communism is inherently dangerous to American society and principles, it is most certainly lawful to prohibit entry of political Islamists whose political values and practices are antithetical to the culture and values of the United States. That some Muslims argue that religious Islam and political Islam are one and the same and are inseparable, as many Muslims of the radical variety do, is not relevant to whether or not the United States has the authority to ban adherents to political Islam without infringing on their right to whatever religious beliefs they choose to hold.

All the United States needs to do is make it clear that admission to the United States by foreigners who advocate or practice political Islam is prohibited and say nothing about the religious beliefs of Muslims.

To do so the government need only carefully define what “political Islam” means in law by specific reference to political and social behaviors and practices that would be detrimental to the United States and its system of laws and rights while also explicitly stating that Islamic religious beliefs are in no way to be used as criteria for denying entry. After that definition it’s easy: “No person who practices or advocates the practice of Political Islam shall be eligible for admission into the United States.”

This puts the President and the Congress in the same position it holds with respect to any political beliefs on the part of potential immigrants that stand contrary to our own, like communists, which is that such persons may be refused entry under Congress’ plenary powers over immigration because they are dangers to our society.

Originally published in the Daily Caller

Midnight Rainbow

It’s hot. Real hot. The August sun blazes in a cloudless sky, reflecting off the stony shale bank, baking my left side while its reflected heat blazes off the placid, dead calm surface of the Missouri on my right. Hold up a hand against the glare and feel the heat toasting my palm. Even the air is hot. Not a breeze, not a breath.

Ninety-five said the savings and loan display in Helena as we headed towards Wolf Creek, and add at least 10 degrees to that as the afternoon heat reaches its climax. Add another couple of degrees of radiant heat from both side of this bake-oven-with-a-view and you have mad-dogs-and-Englishmen weather. Or in this case, sexually-aroused-Caddis-and-Fly-fishermen weather.

The trout have better sense, sliding up and down, back and forth in the cool, green depths of the Missouri, gently sipping a late lunch out of the surface film. Up for a bite, back down to the shaded, weedy bottom. Up. Down. Up. Down. In rhythmic hypnomy. Maddening hypnomy.

“Further above him, and a little close to the bank,” says Peter, from his perch on the culvert sticking out of the bank above and behind me. I false-cast out into the river, measuring my cast carefully and then aim for the slot two feet from the rocks and bushes 40 feet upstream where the trout slides up and sips another emerger.

“Tink” goes the fly on the bush behind me, “Splat” goes the fly line and leader on the water right on top of the arm-length piscine diner, like some ham-handed busboy upending a tray full of plates on the table. “Well, he’s down, my turn.” says my friend and fishing mentor, so I slip and slide downstream along the precipitous shale bank to see if I can find my fly while he does the same upstream, heading for the next pod.

It’s hot. Real hot. I, however, am not.

It’s a far cry from my first fishing trip to Montana. That time neither the weather nor I were hot. We were both cold. Real cold. A dozen years ago and later in the year, I said to Peter one day:

“Want to go to Canada?”.

“I’d love to, but I can’t afford it”

“That’s not what I asked.” says I. “I want to go to Glacier and Jasper National Parks and take some pictures, do you want to come along, my treat?”

“Let’s mosey,” says he.

A few years earlier, having come into a small inheritance, I’d solicited friends (and a couple of very cute casual acquaintances) to join me on a six-month tour of Australia, all expenses paid. Everybody said “you bet!”, but when told “We’re leaving September 20th,” all came up with some excuse why they couldn’t go. So I bought an airplane instead.

I loved that Maule. Take off on a postage-stamp, land on a dime. I spent a good many hours knap-of-the-earth over the western US, enjoying the scenery up close and personal in N332X, till I made that one little error and bent it beyond repair. But, being a Maule, she sacrificed herself saving my life. An honest and honorable airplane. Well, anyway, I had a bit of the insurance money left over—not enough to replace her, but enough to take a hell of a road trip. So we did.

“Now, this is a photographic expedition. I’m going to take pictures, but if we can, we’ll squeeze in a little fishing for you. Understand?”

“No problem.” said Peter.

Yeah, right. A legendary trip in itself. Bad weather all the way. Blown off the Henry’s Fork, the Snake, Big Hole, Boulder, Flathead and just about all of the famous fly-fishing waters of the west. Skunked. Nada. Zip. Not one single fish. Drizzle, rain, wind, wet-cold vinyl waders and oversized jungle-boots as wading shoes. “Rustic” motels with heaters leaking natural gas, toilets jammed in next to showers so tight you’d have to be Dr. Ruth to even sit down, and bedsprings that shrieked in protest at the slightest movement. Still, by West Yellowstone I was well and truly hooked. Upper lip, great big barb, ship hawser for tippet. Seven hundred dollars later we both left Dan Bailey’s in new neoprene, me with every gadget I could find except a fly rod and reel. A frigid, rain-soaked week later I caught my first fish ever on a fly-rod. Arctic Grayling from a spectacular lake somewhere west of Glacier National Park.

It’s a long way, temporally, from there to here; the very antithesis of that seminal excursion. I’m basting in my own juices, blowing mad Caddis out of my nose and from behind my glasses, casting to huge fish with the perceptions of a telepath. The result is much the same though. Skunked. Nada. Zip. They’re too wily for the both of us this afternoon. But, the story isn’t over yet.

“Let’s mosey” says Peter.

“Works for me.”

We scramble up the bank (you ever notice how you never have a climbing rope and a set of ascenders when you really need them) and take one last look at the three or four pods of enormous fish greedily slurping down bugs up and down the bank 50 feet below us.

Into the truck, pat the dog, who’s perfectly comfortable (he’s parked in the shade with a wet bar right beside him) and happy to lick the sweat from my right cheek. Downstream we head, peering at every turnout and stopping occasionally to check a favorite lie for rising fish. Not much going on though, so we head to a big bend where we’d had some success the day before.

Corps of Engineers reclamation efforts can be ugly as sin, but the trout love them. The bank had been stabilized with jute and nylon mesh, and long fingers of rip-rap pointing upstream, each topped with a huge root-wad from a tree. To stay below the high-water mark makes for a chancy hike on a 40 degree slope covered with slippery fabric, but the rewards are worth it. Look down and you see the Corps of Engineers at work. Look up and you see Bierstadt’s or Remington’s. Look down again and see a juvenile marten curiously and hilariously working his way down the bank towards me, ducking in and out under the edge of the jute, hiding behind weed stems and peering between grass blades like Arty Johnson. He slinks by, about six inches from the toes of my boots as I stand quite still and chuckle at him, and makes his way downstream.

It’s cooler here, the sun is going down now and the breeze is up a little, but the record-breaking wet spring has brought a record breaking crop of mosquitoes. Smart enough to spend their time in the shade in the desert heat, now that it’s cooled off, they make up for lost time with a vengeance. So, I slather on the DEET and hope I don’t melt anything important.

Another hour or two of fishing in the eddies behind the stonework, this time with some success, a couple of lively browns for each of us. The view just gets better as the sun sets, and I start wishing for my camera instead of my fly-rod.

“Let’s mosey.”

“Works for me.”

Now for the main event. Everything before is just a warm-up for this, and the action doesn’t even start till the sun is well off the water, and doesn’t heat up till the stars come out. I stake out the spot while Peter noodles off upstream to look for a pod of early risers for a couple of warm-up bouts. Good thing I need a break, because as twilight comes, so do the bait-casters, roaring up in their pickups and roaring away, frustrated, when they see me fiddling with flies and tippets at their favorite meat hole. Make no mistake, it’s a meat hole. It’s chock full of trout, big and little, some very, very big, and the locals all know it well. But these finny boys and girls don’t come out to play till after your kids are asleep in bed, and they party all night.

About the time you need a light to tie your fly on, unless you can do it by the reflection of the neon from the bar across the river, they begin coming up by the dozen.

“Slurp.”

“Bloop.”

A symphony of bug-sipping trout smorgasbord delectation going on up and down the bank in the dark. You focus using your ears and your experience. You might catch a glimpse of a rise reflected by the starlight, but even the best night vision isn’t up to more than trying to keep from stumbling and falling headlong into the river. No, it’s sound and kinesthetic sense, knowing just how much line you have out, and where your fly is going and when that “bloop” comes where your fly is, or should be. It’s an exercise in patience and skill that will make a better fisherman out of anybody. Have a problem with premature strikes? Try night fishing on the Missouri.

Tonight, it’s hot. Real hot. Hour after hour we cast, all our concentration focused on invisible rises, listening for the regular risers. There must be 50 fish rising in one spot not more than 50 feet long and 35 feet wide, in the little eddy behind the obstruction in the river. The sounds overlap and mingle till it’s a continuous melody of gustatory excess. Just cast and wait, cast and wait, cast and wait. Very Zen. Most times you don’t know you’ve caught a fish till you raise your rod to set up for the next cast. Then you know. The line screams off the reel as the fish heads for the tavern a quarter-mile away, and you begin to worry about your backing and how the hell you’re going to work your way along the bank fast enough to keep up in the pitch dark. Keep the tip up and reel in like mad as the fish bores his way upstream, shout in exultation as it turns and runs for the Mississippi, leaping invisibly and hitting the water in the night like a gunshot. Feel the power of the rod fighting the fish, every twitch and headshake magnified by the blackness, straight from the fish to your rod to your brain through the palm of your hand as you wait for the tippet to snap or the number eighteen hook to unbend into a straight-pin.

A heart-pounding ten minutes later, twenty inches of steel-bright Midnight Rainbow undulates gently in my hand, the first of many that night. I revive the weary fish and send him back to the dinner table, lit only by the tavern’s warm glow and the Montana night sky.

Tonight is the antithesis of a dozen years ago, and of this afternoon. My best fishing day ever. Though I’m perfectly happy to spend the day up to my armpits in senseless beauty and majesty, I fish perhaps more for the companionship and camaraderie than the fish. But tonight is special, it has it all. Good friends and great fish, the Milky Way, meteors and the Missouri.

Anathemas of Science

By Scott Weiser

The term “Intelligent Design” is a simple, clear label for a valid scientific line of inquiry that has been hijacked by religionists, decried as heresy by secularists, and declared anathema by an activist Federal judge.

The existence of intelligent design in the universe is an indisputable scientific fact. That you are reading this essay proves the point. The existence, nature, methods and results of intelligent Designers are indisputably scientific questions, as even the High Priest of Secularism, Richard Dawkins, somewhat reluctantly admits in his book “The God Delusion.” It’s arguable that the most important scientific question mankind faces is whether there is an intelligent Designer in the universe more sophisticated than humans, and if so, could it have deliberately acted to arrange or modify either the fundamental constants of the physical universe, the origin and evolution of life on earth, or both?

Modern human science proves that it only requires an intellect just a tiny bit superior to our own to create life, so why is it so unthinkable that such an intellect may have intervened in or directed Earth’s evolutionary processes? Such an intelligent Designer need not be omniscient, omnipotent, benevolent or even interested in the fate of humanity. Nor need it exist any longer. God may indeed be dead, but this does not mean that a Designer never existed or does not exist still. The search for clues of a superior, if not supreme Intelligent Designer is clearly a matter of science, not religion.

However, the intent and directives of such an entity, absent direct testimony from the source, and arguments of humanity’s obligations of obedience to or worship of such an entity, are religious questions. The former should be taught in our public school science classes, the latter should not.

But, in a keystone case from 2005, Federal Judge John E. Jones ruled that “Intelligent Design” is “not science” and may not be taught in public schools, ever. The error Judge Jones commits is exceeding his mandate to protect the Constitution. Instead of simply ruling that by acting with documented bad faith in a transparent attempt to inject Christian religious belief into the schools, the Dover School Board acted unconstitutionally. Instead, he decided to rule on matters of science that he is neither qualified nor authorized to render judgment upon. And in a show of bad faith on their part, the ACLU was delighted that he did so.

However poorly the witnesses for Dover may have presented their supposedly science-based arguments, the scientific fact remains that complexity in organisms may be the result of intelligent design. That evolutionary processes might have accomplished this unaided, which appears likely, but is unproven, is not disproof of intelligent design. Any credible scientist must always be looking for evidence of intelligent design in any object or organism, if for no other reason that to be able to rule it out. A triangular eroded rock and a manufactured obsidian arrowhead portend very different things, as do “natural” maize and artificially genetically modified corn. But Judge Jones has foreclosed future investigations by making the mere mention of Intelligent Design to our future scientists anathema and forbidden speech. This is not just bad science, it’s bad law, and it’s every bit as unconstitutional as teaching religious belief in science class. Children must be taught the whole truth if they are to move science forward when it is their turn.

The arrogance of religionists like the Dover school board who try to foist Judeo-Christian religious dogma onto our school children is exceeded only by the hubris of secularists like Richard Dawkins and the ACLU, who believe that humans know enough to proclaim that there can be no superior intelligence capable of creating or guiding life on Earth, merely because they do not yet have the intellectual capacity or technology to be able to observe, quantify, analyze or falsify it. In an astonishing role reversal, the secularists have become to the search for objective truth what the religionists were to Copernicus, and Judge John E. Jones is their Secular Grand Inquisitor.

It’s time for religionists to abandon their unconstitutional agenda of injecting Christian religious dogma into the science classroom, it’s time for scientists to reopen their minds and reject ACLU secular dogmatism, and it’s long past time for our children to be given the intellectual and philosophical tools and information they need so that they can render their own judgments.

Liberal Judicial Activism Borders on Insurrection

By Scott Weiser

President Trump was correct in excoriating liberal activist federal judge James Robart for his grossly legally defective temporary restraining order against President Trump’s temporary travel ban. Beyond excoriation Robart needs to be impeached and removed from the bench for judicial incompetence.

Robart reached far beyond his judicial authority in even supposing that the State of Washington had standing to appeal President Trump’s order in the first place. Robart hinges his entire ruling on a concept called parens patriae, a term meaning “A doctrine that grants the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf.” Ordinarily used by states to protect children and those who are incapacitated, Robart here tries to invoke this state-level power against the Congress and the President.

In the case Massachusetts v. Mellon however, the Supreme Court ruled with absolute clarity that “it is no part of [a State’s] duty or power to enforce [its citizens’] rights in respect of their relations with the federal government.” It’s difficult to imagine a ruling that more clearly denounces and derogates both judge Robart and the State of Washington in this clearly extra-legal attempt to arrogate the power of controlling immigration to the State of Washington. If Robart didn’t know about this case he was explicitly informed of it by the Department of Justice in its objection to the TRO, so he has no excuse for ignoring an on-point Supreme Court ruling.

The power over immigration is exclusively reserved to the Congress, and its power is plenary, which means total, complete and unreviewable. Congress delegated certain powers to restrict immigration to the President by enacting 8 U.S.C. § 1182(f), which says that when the President (any president) “finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States,” he is authorized to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

Having granted this authority to the President, only Congress can revoke it and no federal court, not even the Supreme Court has the power to interfere in that presidential authority short of challenging the constitutional power of Congress to delegate certain of its plenary powers over immigration to the President.

It is simply not within the power of any state to interfere with such a presidential decision, as immigration-control advocates found during Obama’s tenure in office. Obama did exactly the opposite, he ordered our Border Patrol officers NOT to deny entry to any aliens who illegally entered the United States, and when Arizona and other states challenged this policy in court on exactly the same sort of grounds of detrimental impacts to the people of Arizona caused by rampant and uncontrolled illegal immigration, Obama simply invoked the plenary federal power over immigration policy and did nothing to secure our borders.

Now that President Trump has chosen to exercise his part of Congress’ plenary authority over immigration liberal Democrats want to prevent him from doing so, and they found a corrupt judge to do it for them by venue-shopping.

By going to Seattle and finding a sympathetic liberal-inclined pet judge they accomplished two things: they got their TRO and they put the case into the 9th Circuit Court of Appeals, the largest and most liberal (and most-reversed by the Supreme Court) federal court in the United States, which reacted to a well-formed and legally-sound appeal of the TRO with a one-page ruling rejecting the appeal without any analysis of the case or the law. This was not circumstantial, it was very deliberate tactic on the part of liberal progressive Democrats.

This makes the 9th Circuit Court as much of a co-conspirator in violating the separation of powers doctrine as Robart and the State of Washington are, which is a good reason for the plan to break up the 9th Circuit Court into several smaller courts to move forward. Impeachment of 9th Circuit judges should also begin immediately.

There is no doubt whatever that review of both the TRO and the order rejecting the government’s appeal, along with every other case filed against the President’s Executive Order, will be summarily dismissed by the Supreme Court because the law could not be more clear: the states have no standing to sue Congress or the president over immigration actions because Congress’ power over immigration law is plenary and not subject to judicial review according to Article 1, § 8, clause 4 of the Constitution.

This is nothing more than another liberal Democrat attempt to impede and inhibit President Trump’s administration, but this one is entirely unlawful and they know it and therefore Democrats are stepping outside of mere procedural obstructionism and are dabbling in the realm of insurrection and treason, particularly when it comes to “giving aid and comfort” to radical Islamist jihadi enemies whom President Trump is trying to keep out of the country.

Originally published in the Daily Caller