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

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