Non-taxtion of churches is unconstitutional

[cthulu2016]

This is about the government of the United States of America, (and states and localities) not about theology. The validity or invalidity of any or all faiths is irrelevant to the topic discussed. As with most constitutional arguments, I am free to step outside the tautology that the supreme court is created by the constitution and that constitutional is whatever the supreme court says it is. That is literally true, but we are allowed a theory of the constitution at odds with its official interpretation. (Allowed as a human right, even if the SCOTUS said that right didn't exist.)

1) non-taxation of churches is establishment of religion in general, and
2) the implementation non-taxation of churches requires the state to establish religion in specific

Some people think that the state is not allowed to pick and chose between religions, but is allowed to favor religion categorically. It is unthinkable to me that we have "In God we Trust" on our money. It is there only because it is a general endorsement of religion. Had congress voted to put "we hold that the Pope is infallible in matters of faith" on the money the SCOTUS would have struck it down in a minute.

Some defenders of that motto point out that the God cited might be Yahweh or Allah, as if that makes a difference. The general sense is that our form of government is properly supportive of non-sectarian theism, and properly hostile to non-belief. (Not to get nit-picky, but the First Amendment doesn't say anything like that. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." )

If you allow for the concept of non-theistic citizens then favoring a general theism is no less establishment of religion than favoring a particular flavor of theism.

The taxation of churches can be viewed as an establishment question or a free exercise question. Of the two, the former makes more sense. Some view favorable treatment of theism in the tax code as a government "hands off" policy in deference to the free exercise clause, but the free exercise clause requires nothing of the sort. Paying property tax on a house will cut into your book buying budget but we don't consider it an infringement of freedom of the press. People's freedom to gather and worship is not a guarantee from the government that they get a subsidized property to worship in. One the other hand, special treatment—friendly or hostile—of any organization claims to believe in a supernatural being is surely state establishment of a broad religious doctrine.

And if anyone doubts that in general, then look to point #2 above. The specific.

There is no way to have special tax status for churches without the government promulgating a legal definition of what constitutes a church. What could be more establishing than that?

The IRS has a list of legitimate religions. If you start a religion the IRS will investigate your claim to see if you are really a religion using a set of standards. Are services regularly scheduled, etc.. So the government has established religion with greater specificity than some churches establish religion.

Does anything negate "free exercise" faster than the government telling you how regularly scheduled your services must be to be a real religion?
_____

So what is the solution? Treat a church the same as Planned Parenthood or the Sierra Club. Scrub all tax and zoning laws of any reference to religion and treat churches the same as the facilities of any other non-profit corporation. (And if the churches make a profit they are free to be regular corporations.)

Why should a religion have an easier (or harder) time of things than a secular charity?

See, that was easy.

[icymist]

1. Well, this should get everyone in the holiday spirit!

[msongs]

2. churches are business using religion as their product nt

[oldhippydude]

8. for years

i have been refering them as the FAITH INDUSTRY.. and think with all the partisan pulpit vote hawking, that they should not be granted 501 c3 status

[Riftaxe]

3. The 501c3 exemption

was originally offered to entice Churches away from influencing politics.

Personally as long as all charitable organizations are taxed equally i would not mind seeing the exemption status revoked.

[cthulu2016]

5. Though I focus on the federal, the

greatest point of impact is local -- property taxes. And that is payable whether you make a profit or not, so it would hurt churches a lot.

But it would help local schools a lot.

I am sure a lot of church-heavy localities are frustrated by having their tax-base essentially capped in that way.

[Yo_Mama]

31. But all sorts of charitable/educational institutions aren't taxed

I think most of the money tied up in non-taxable property is probably in educational resources right now.
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&sqi=2&ved=0CEUQFjAC&url=http%3A%2F%2Fjay.law.ou.edu%2Ffaculty%2Fjforman%2F2009NonprofitOrganizationsBook%2FSineJessica.doc&ei=ueL3TsSoCsLs0gGSvNiOAg&usg=AFQjCNG5hnXxaqcdgYiqE1Xc-2TRhJem_Q

You seem to think churches are treated uniquely under the Constitution, and they are not. Under the Constitution, if you are going to tax the Harvard Endowment you can tax the Catholic/Lutheran/Episcopalian seminary, but states can't not tax the Harvard Endowment or other similar funds and tax the Episcopalian seminary.

So you either tax all the charitable/philosophical/educational/scientific foundations out there, or none, right? Maybe under the Constitution you can tax charitable/educational but not scientific, but you surely can't tax a church establishment if you don't tax a similar non-church establishment - that WOULD be unconstitutional, because it would violate the free exercise of religion clause. If that means anything, it must mean that a group of people organized into a church can do anything a group of people organized in some other way do, under the same conditions.

[cthulu2016]

33. I seem to be being misread today...

which is doubtless my own fault. The communicator's job is to communicate.

The OP says that and dispirate treatment of churches versus comparable organizations is an establishment clause violation. It says that churches should be treated exactly like other non-profits.

Many have replied that there is no disparate treatment. If that is the case then my OP is a statement of the obvious and irrelevant -- like saying that training a unicorn to kill your neighbor would be murder. It would be, but there are no unicorns.

If, on the other hand, there is disparate treatment then there is no proper basis for it. If that disparate treatment is favorable it is establishent. If it is unfavorable it is a free exercise problem.

It is my impression (always coreectable by fact) that churches do not have to do the same paperwork to demonstrate their non-profit status, but that it is assumed. If so, that's a problem.

I think, perhaps erroneously, that churches are less likely to pay property tax than are comprable entities. Also a problem.

I tink a church should operate just like any other non-profit. No better. No worse. Just the same.

And that's all I was saying (or trying to)

[quiller4]

45. Same application for non-profit status filed by churches as other non-profits.

The nature of the organization determines what sections of the form need to be completed. Churches need to fill out a few sections of the form that other non profits omit. The documentation requirements for churches are higher than for charitable non-profits.

I'm retired now but most of my work life was in the nonprofit world. I spent 15 years working for universities and 20 years working with charitable non-profits. I've successfully completed 501 (c) 3 applications for 3 small local charities.

Charities and schools are exempt from property tax in most jurisdictions, too, and more property is off tax roles because it is currently used as a school or owned by a school district for future development as a school--nearly twice as much school property as church property with other charitable uses together coming in a distant third.

[Critters2]

32. There are lots of institutions that impact communities more than churches by not paying taxes.

In Illinois, a few years ago, two large hospitals lost their tax exempt status (for not offering charitable care). They suddenly owed millions in property taxes.

Oh, right. Your goal is to hurt churches.

Never mind.

[cthulu2016]

34. That's an extraordinary conclusion.

"Oh, right. Your goal is to hurt churches."

Is the "us vs. them" so bad that it is impossible to recognize an honest motive?

I would be first in line to oppose any special mistreatment of religion or to oppose any favorable treatment.

The establishment clause and the free exercise clause are two sides of the same coin. Both are vital.

To say that a person who wants the government to be neutral on religion just "wants to hurt churches" is an extraordinary reading.

If church land is out of the local property tax base then everyone else's taxes are higher than they would be otherwise.

If I said, "Oh right. Your goal is to hurt the middle class. Never mind." It would be equally baseless and unfair.

I do not think that most churches make a lot of money. I doubt they would face appreciably higher taxes if treated the same as anyone else.

The problem is not that churches are not hurt, but that that kind of disparate treatment is, in my view, against the letter and spirit of our constitution.

[The Straight Story]

4. Churches are not really different than other tax-exempt orgs, except some people don't like them

Maybe planned parenthood, NOW, etc should not be exempt because people don't like them.

[cthulu2016]

7. Federally, for the most part. Locally, no.

Churches tend to pay no property tax on their real estate holdings, which is a big deal.

As corporations they could deduct property taxes, of course, but would still face a large net loss versus the status quo.

[LeftyMom]

35. They don't serve any useful function.

NOW and Planned Parenthood are useful because, unlike gods, women exist.

[Lionessa]

6. I think you're wrong, and I'm a raging atheist.

I surely want them to pay taxes, but as for Federal Taxes, the Constitution says, "no taxation without representation," since churches and religions are not allowed representation, I can understand why they don't pay Federal taxes, ie income tax, oh, and that reminds us that most religious orgs are also non-profit, hence no profit to pay taxes on.

As for things like property taxes, that I agree with because those are state or local and cover services related to using the land in the community, like Fire, police, schools, etc, and I say the same for state sales taxes, so representation isnt' the issue on state and local levels, and it isn't covered by the Constitution which covers Federal issues more so. Therefore those should all be paid to the states and localities.

I would rather they keep their taxless status and stay out of politics altogether, than charge taxes and let them be represented.... Of course since lately they seem to manage to have all manner of representation through back channels, this is what needs to stop. No more political access for religions, churches, and sects; that's more important to me than gathering Federal taxes from them.

[cthulu2016]

9. There is no constitutional taxation/representation standard

I take your point and welcome it, but that was a slogan of our revolution, but it isn't our law.

People in the District of Columbia pay taxes despite having no representation in congress. Women paid taxes before they had the right to vote.

And even if the objective is to keep religion out of public affiars, that is itself unconstitutional.

Our rules against churches telling parishoners how to vote without risking tax staus, for instance, are clear violations of the free exercise clause. Who are we to tall a religion what it's doctrines and practices are? The free exercise of one's religion may well involve telling parishoners that the religion prefers they not vote for John Kerry. (That was a particular story in 2004) That wouldn't be my call, by no religion should answer to me... or the government.

Maybe somebody believes there is a God whose only commandment is to not vote for John Kerry. That's no whackier than anything else.

And if I had a church I sure wouldn't be comfortable telling parishoners that voting for Newt Gingrich was as moral as anything else... what kind of religion would that be?

[Taitertots]

10. I don't think that is in the constitution

I'm not a constititutional scholar, but I'm pretty sure "no taxation without representation," isn't in the constitution.

Whether or not it is, churches and religions are represented by their members.

[alfredo]

12. But they are, for the most part, represented by the Republican party.

[Remember Me]

20. Uh, no

Evangelical churches and authoritarian Christian churches, perhaps. But not all churches. And really, it's the other way around: these churches support Republicans tho they are prohibited from doing so by their tax exemption. And that's why we have to preserve their no-taxation status, and improve enforcement.

[alfredo]

41. I hope we are enforcing the rules. I see their palaces all over town and

Wonder how much they actually give to our community. The more conservative churches have moved to the deep suburbs, abandoning the areas most in need.

[AnotherMcIntosh]

16. If that is in the Constitition, it should be easy to provide a reference.

Otherwise, please see:
Things That Are Not In the U.S. Constitution
http://www.usconstitution.net/constnot.html

As pointed out as examples at that site,
"convicts and immigrants who cannot vote" "are still subject to taxation."

[humblebum]

11. If you want to see churches become vastly more powerful and influential than they are now,

tax them. With taxation comes a full voice in government.

[cthulu2016]

13. That's fine with me, if that's how it goes

The constitution doesn't exist to restrain churches, it exists to restrain government.

A church can do whatever it wants. It should have the same standing as any other group or organization. Not better. Not worse. The same.

If that has one effect or another then that's what it is.

I am an atheist personally, but I think that if people want to band together for whatever lawful purpose that's their business, even if under the banner of their faith.

If, as others have also said here, the non-taxation of churches is a deal to limit their political participation then it is clearly unconstitutional. Imagine if an ethnic group was given lower taxes in exchange for not voting.

The deal with religion is, or should be, no punishments. No rewards. If what binds your group together is a faith, cool. If what binds you group together is bird-watching, cool.

Neutrality.

[Remember Me]

21. The problem is -- well, the Constitution IS there to restrain churches

and prevent them from infiltrating government.

Your scheme would ensure a theocracy and the end of the First Amendment, in reality if not in fact.

[Igel]

14. I think you're point is already in law.

The community center where my cactus and succulent society met was a private non-profit organization. Not religious. Secular. It paid no taxes, income or property.

Same for the Boy's Club where I took karate lessons. It owned a building, had income, was tax exempt.

The church I worked for was tax exempt. The radio station I volunteered at was non-profit and tax-exempt.

The student "union" I was involved in was structured as a co-op. It wasn't a 501(c) anything. It was an unincorporated organization dating to the early 1900s. It paid no property taxes when it held property; it paid no income taxes on mission-derived income and was also exempt on charging some kinds of tax on "members" (viz. students).

Look at the Nature Conservancy. You give it land and that vanishes into the Conservancy's tax-exempt holdings. That can *only* mean local property taxes, since there *are* no federal property taxes. It's not religious. Its holdings are large and probably not an imposition on local governments--they require few services and the land has low tax levies. Unlike churches, which tend to be where people want to gather and that mean the land under them was or has become valuable for other uses that could produce tax revenue. (And, for some, the entire purpose of enterprises is to produce tax revenue.)

Most community-based organizations with a certain kind of goal are tax-exempt or can be. But then they have to be non-partisan. If you're partisan, you're a different kind of organization and not quite so neatly tax exempt.

What's crucial is that there be a social purpose, that it be grass-roots in some sense, and that the corporation be non-profit and non-partisan. After paying expenses the organization doesn't issue dividends to profit shareholders, nor is it a privately held concern. It can hold money and assets for specific causes, but is to operate for the purpose outlined in its charter. Meet those requirements and you're probably going to be able to avoid paying taxes on your corporation's land, if the primary purpose of the land is that of the organization's.

There's also no requirement that their property be tax-exempt. In Houston proper there's a drainage "fee" (a tax by another name) that's levied on everybody, including public schools. To single out religion-based community organizations, however, would probably be a problem.

[cthulu2016]

15. Interesting. Thanks.

[humblebum]

17. You would be hard pressed to prove the unconstitutionality of not taxing churches, when

taxation of income is a government imposition at the sole discretion of Congress.

[cthulu2016]

18. Viewpoint neutrality

Just because congress can levy a tax doesn't mean the particulars are beyond constitutional review.

There is a case in Arizona right now where dontions to groups that support abortion are not as fully deductable as donations to organizations that do not support abortion.

In granting a preliminary injunction the judge observed that the state could not impose a fine for supporting abortion, so it's hard to see how it can have a policy reducing/penalizing contributions for supporting abortion.

Which is the point... in first amendment terms, exempting a group from a tax is the same as handing them money and witholding an exemption based on viewpoint is the same as a fine.

Everyone can see that congress could not send checks to all religious groups but not to all non-religious groups. That would be a serious establishment problem.

And failing to tax a party the same as everyone else based on their viewpoint is the same as cutting everyone with that viewpoint a check.

(Income tax is a relatively small matter with churches. Property tax is the real edge of the question.)

[humblebum]

19. There is also the little matter of separation of C&S. Would be a very touchy matter.

IOW, not likely to happen.

[cstanleytech]

22. So are you also opposed to the 1% having to pay higher taxes as well

because it would be granting us (the 99%) special rights?

[Quartermass]

23. It may not be constitutional, but that's not the point.

I was taught that the reason to make churches tax exempt was to keep them from overtaking the voting system.

Like it or not, Christians are a huge presence in America, and are larger than any other group. If they were to all unite as one group, they could really screw up things in America for non-Christians and everybody else and the Constitution would be fubared beyond all recognition.

And I for one, don't want to see that happening.

So I will continue to support Churches being tax free.

Because I really don't want America to be turned into a true Christian theocracy.

Theocracies are bad for everybody, even the religious. A theocracy is nothing more than another form of tyranny and I don't want America to be turned into one.

[sarcasmo]

24. I have been saying they should be taxed for years

especially the mega churches. I wonder how much Pat Robetson makes and how much in taxes that douche bag pays?

[unblock]

26. the simple answer is that churches are not tax-exempt because they are churches

churches are tax-exempt because they are one of many forms of organizations that engage in non-profit activity.

non-profit social clubs can be 501(c)(7) tax-exempt organizations
book clubs can be 501(c)(3) tax-exempt organizations

and there are many others.

it would be very problematic for the government to permit social clubs and book clubs as long as the social rituals aren't religous and the book reading isn't from the bible, e.g.

the government really only has a particular interest in keeping such organizations from being POLITICAL. if any other these organization engages in politics, they can lose their tax-exempt status.

now ENFORCEMENT of that against churches is another matter....

[AnotherMcIntosh]

37. Of course, "nonprofit" doesn't mean that no profit is intended. It means no individual stockholders.

It's a term of art. It doesn't describe whether profits are being made or not being made.

[unblock]

46. fair point; there are few truly bright lines in the law when push comes to shove.

"profit" can be extracted as salary or expenses or accumulated for increased power.

it cannot be extracted as dividend income to pure investors, but that can be circumvented, at least to an extent, by putting preferred people no the payroll or turning them into vendors.

[Yo_Mama]

27. I disagree entirely over taxing churches

First, I do agree absolutely that people have the right to disagree with the SC on what is constitutional - but the reality remains that although those public disagreements may eventually find their way into new SC decisions, the SC does interpret the Constitution. The people can amend the Constitution to override those decisions.

The First Amendment has multiple clauses, reading in total:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Let us assume, for the purposes of examining your proposition, that we have an amendment on the table that will read "The First Amendment protections of religion do not mean that churches are exempt from taxation."

What would be the results of passing this amendment?

Because the 1st also contains the "prohibiting the free exercise thereof" clause regarding religion, it is clear that neither Congress or states (under the Gitlow extension) can pass laws treating churches differently than other organizations.

However under our laws, 501(c)(3) organizations are all exempt from taxation. A 501(c)(3) corporation may be a church, but it may be a scientific, literary, charitable or educational foundation also. As long as it is public purpose, non-profit and the property held/controlled doesn't fall to an individual or a non-501(c)(3) corporation upon dissolution, the Christian Scientists, the Catholic dioceses, the local Lamplight, Berea College, and the Council for Secular Humanism (links for these last two
http://www.secularhumanism.org/index.php?page=pr_6_27_05&section=press
http://www.berea.edu/givetoberea/giftplanning/yeg2011/default.asp)
all are treated equally under the law in being exempt from taxation.

If churches are taxed, then all of these must also be under the First Amendment. I do not think that is a good thing. Here is a short article at Justia reviewing the case law:
http://supreme.justia.com/constitution/amendment-01/05-tax-exemptions-of-religious-property.html

The reason I consider it to be a bad thing is that any legal principle that disadvantages the contributions of many compared to the contributions of the few (and wealthy) essentially violates individual rights under our Constitution, and, I would argue, essentially violates the freedom of association principles commonly recognized in the First Amendment.

I don't see how this wouldn't occur. Bill Gates, George Soros and any number of any other very wealthy people have the money to fund their own ideas, their own education foundations, their own pet projects. Such projects that are supported by the many for their own goals already have an inherent disadvantage in that they have to spend money collecting small donations from a number of people. Further, if such foundations were taxed, then the wealthy would not give gifts and lose control - it would tend to produce organizations run by the wealthy because dependent on the wealthy.

If we could tax such organizations, then there would be many fewer of them, and those that were supported only by a disadvantaged minority would inherently be likely to disappear due to the much higher cost of maintaining them (if they are paying taxes on property held for foundation purposes, the contributions raised each year would have to be much higher to continue operation).

So it seems to me that your idea would tend to make our society into one in which the ideas, philosophies, and yes religions of the few successful would tend to magnify their influence.

When you look at the history of the "despised" organizations (think the NAACP, the abolitionists, those agitating for equal rights for women) it is clear that many times powerful societal interests have been opposed, but yet the ideas in themselves were good, were supported by minorities, and eventually these "radicals" won their battles. It is rare for fundamental societal change to come from the power structure of any society, and I don't think power structure in our society needs any more influence than it already has. The ability of the less wealthy to form associations to advocate ideas, promote education etc is a very important part of our public life.

Many on DU seem to have the idea that churches are treated uniquely in our society. The Constitution forbids that, and churches are not treated uniquely under the Constitution. The exemption you address is a common one for public-purpose foundations, with a long history.

Many have an animus toward churches, but legally the Constitution cannot treat churches differently than other types of public-purpose foundations, and I think taxing the property of public-purpose foundations is a bad idea because it inherently disadvantages the powerless.

[cthulu2016]

29. Excellent reply, but might have misjudged the conclusion of the OP

Last edited Mon Dec 26, 2011, 12:01 AM - Edit history (1)

The OP is not just about federal income tax, but local tax policy governed by the (incorporated) first amendment. The fact that the IRS has standards for determining what constitutes a religion is too good to pass up, but I think local property taxes are probably the most meaningful church taxation/non-taxation. (I assume most churches don't run fat yearly profits, but they do own a fair amount of land.)

My proposal in the OP is to strike all special treatment of religion from tax law.

If there is no special treatment anywhere then the point is moot.

I said that churches were free (IMO) to operate as non-profit corportaions, for-profit corporations or any other legal entity they wish and would be taxed or not taxed accordingly.

I don't know why several obviously intelligent people have read that as a call to levy a special tax on churches, versus other non-profit entities. (Or a call to eliminate non-profit tax status for everyone...) It says quite the opposite. When intelligent people misread me that badly it's probaly my fault.

If there is no special treatment on any level then the point is moot.

If there is any disparity in treatment, versus comparable secular organizations, then it is a straightforward establishment clause problem.

Nothing very radical being said here.

[Yo_Mama]

36. The states can do it either way.

They can tax a church foundation/property on the same basis that they tax a non-church foundation/property, or they can exclude both from taxes.

Either way, there will always be points of usage debated. For example, most states exclude real property from taxation that is owned by a 501(c)(3) type corp and used for a non-profit-making charitable, educational or so forth public purpose. So, for example, a church can't put its money into a roller-skating rink which charges fees to the public and makes a profit but expect not to pay taxes on the property. But the lines blur sometimes (think about campus bookstores), and there are plenty of local cases always disputed.

Also, if a state or locality placed a particularly heavy tax on a type of property that appeared to be an attempt to essentially destroy the property interest and it appeared to be an attempt to attack a certain organization, that organization might have Due Process or even a takings case.

Churches and educational/medical foundations and all type of non-profit NGOs are not immune to the law - the constitutional principle is just that the law can't be used to control/destroy religious outfits, and states have no interest in taxing the local shelter or food bank out of existence, although there have been cases aplenty where local residents tried to use zoning law to basically get rid of them.

There are some special exemptions for religious activity in constitutional law, but to get a sense of their limitations and their strong link to the other protections for other activities in the First Amendment see this 1944 decision about a Jehovah Witness street vendor (Follett v McCormick:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=321&invol=573
This is also a fun case because there is tangential discussion of taxation of Trinity Church in NYC, the current focus of OWS wrath.

Note the linkage in the dissent by Roberts, Frankfurter and Jackson to rules set forth for the protection of the press, etc and the reference to Grosjean:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=297&invol=233
In that case the SC struck a Louisiana tax on large newspapers because of the history of the misuse of such a tax to suppress public information in England.

The commonality and discussion in Follett and the other decisions referenced is that a government may not impose a fee on activity or property or revenue that is effectively used to suppress a fundamental First Amendment right. This is similar to the principle that a government cannot impose a direct or indirect monetary fee for the right to vote (no poll taxes, no obligation to purchase government ID, etc).

So in fact certain types of taxes on churches, or demonstrators, or the filing of public petitions, etc, would be unconstitutional. Any tax that takes exercise of a fundamental constitutional right and makes it contingent on wealth is unconstitutional. But note the distinction made in one of the concurrences:

It is suggested that we have opened the door to exemption of wealthy religious institutions, like Trinity Church in New York City, from the payment of taxes on property investments from which support is derived for religious activities. It is also charged that the decision contains startling implications with respect to freedom of speech and the press. I am neither disturbed nor impressed by these allegations. We are not called upon in this case to deal with the taxability of income arising out of extensive holdings of commercial property and business activities related thereto. There is an obvious difference between taxing commercial property and investments undertaken for profit, whatever use is made of the income, and laying a tax directly on an activity that is essentially religious in purpose and character or on an exercise of the privilege of free speech and free publication.

It is wise to remember that the taxing and licensing power is a dangerous and potent weapon which, in the hands of unscrupulous or bigoted men, could be used to suppress freedoms and destroy religion unless it is kept within appropriate bounds.

[cthulu2016]

39. Thanks for the read

I don't see a problem with "laying a tax directly on an activity that is essentially religious in purpose and character."

The problem would be laying a tax on an activity that is peculiarly religious in purpose and character.

A surtax on communion wafers, speciffically, would be a facial free exercise problem. But I do not feel that communion wafers ought be exempt for a general tax on bread and crackers. In that case the over-interest in free exercise becomes de facto establishment.

All I seek is the most neutrality we can achieve.

I am not a fanatic. When I see special street parking regulations for a church ("No parking except Sundays 10AM-2PM&quot it irritates me to realize that the exception was probably granted to a church more easily than some other organization with large weekly meetings, but I do not condemn the exception categorically. There is a legitimate public interest involved. A large number of people are going to try to park at the same time every Sunday and that's a real world thing.

So that's fine.

But if (as I believe to be true but am always open to correction) there is a lower accounting standard for a church to claim federal non-profit status than for a comparable secular organization to claim that status, that is a problem.

The danger to religion doesn't come from interaction with the government, but from government noticing it is a religion.

And I do not have a particular animus toward the church... I would be equally happy to see the accounting requirements for the Sierra Club relaxed as for a church to be tightened.

In my view there cannot be any disparate government treatment of a religion (versus a comparable secular organization) that is not either a free exercise or establishment problem. If a line must be drawn that's the sensible place to draw it.

I am realizing throughout this thread that many people feel that free exercise is superior to non-establishment, not co-equal.

I think I understand why, but it is folly. I think many people see free exercise as a rights issue and thus superior without realizing that establishment is equally a protection of the rights of the religious.

Establishment is potentially more dangerous for the religious than it is for me. If I were Thomas Moore I would have signed whatever it took to keep my head because I don't care one whit whether the head of the church is the pope or the king. Only a devout Catholic like Moore would be imperiled there.

Anyway, I see the two as coequal. Others don't feel that way. C'est la vie.

Your posts are excellent, BTW.

[Bucky]

28. What is the barrier to being called a church for tax purposes?

Don't you just generally have to have a meeting and say you're a church? So non-taxation isn't really establishing a church, so much as recognizing one as such. I don't think there's language in the Constitution prohibiting the recognition of churches. States aren't supporting a church by not taxing them. A specific church has to exist prior to any taxing activity by a state or local authority, so there's no establishment as the phrase was understood in 1787 going on.

The matter is entirely a local concern, of course, as you point out that the real help they get is exemption from property taxes. Among the 50 states and thousands of localities that comprise the United States, if you can find one example of a taxing authority that levies taxes on churches, you would have the basis for a practical argument. But as there aren't any such examples, you are making a purely academic argument. To this, I would respond that as the Constitution guarantees a republican form of government to all the states of the Union, then the lack of any single state or locality willing to tax churches indicates it's not just the popular will of the masses, but perhaps even endemic in American culture, to give this one cession to churches. So regardless of whether the states have the right to tax churches, there is generally a public will not to tax them.

[cthulu2016]

30. re: States aren't supporting a church by not taxing them

What got me thinking about this was a recent case about Arizona using the tax code to disadvantage organizations that support abortion by limiting the relative deductability of contributions to them.

Some, but not all, organizations qualify for dollar-for-dollar tax credits for contributions. The others, including abortion favorers, are treated under the regular tax law. You can dedct, but not as a $=$ tax credit.

One could argue that nothing was done to the abortion favoring charities, it is just that other charities got a sweeter than usual deal. That they were not penalized, but merely not advantaged.

In granting an injuntion, the judage said, "You couldn't levy a fine on an organization for favoring abortion."

And I was reminded of that (very proper) mode of First Amendment analysis. A disadvantage is the same as a fine. A relative advanatge is the same as a payment.

States are indeed suporting anything they don't tax, just as the federal government supports owning a house by advantaging mortgage payments over rent payments.

[AnotherMcIntosh]

47. Your question plus related ones are answered in an excellent law review article.

Charles M. Whelan, "Church" in the Internal Revenue Code: The Definitional Problems ,
45 Fordham L. Rev. 885 (1977),
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2266&context=flr&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3D26%2520reg%2520church%2520definition%26source%3Dweb%26cd%3D10%26ved%3D0CGIQFjAJ%26url%3Dhttp%253A%252F%252Fir.lawnet.fordham.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D2266%2526context%253Dflr%26ei%3DOKT4TpO-MY7ggge9xJytAg%26usg%3DAFQjCNGHmu5iEEtrMt5PWBiyGJPgkhiIEg#search=%2226%20reg%20church%20definition%22

[elleng]

38. Easy?

'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.'

[cthulu2016]

40. Hi elleng

Yes, easy. The eaisest thing is always to do nothing.

If the government treats religions differently from other not profit organizations then it is either to hard on religion (interfereing with free exercise) or too helpful (establishing religion).

Any special notice of religion runs afoul of one or the other.

The easiest and most correct course it for the government to be the equivalent of "color-blind' on religion.

I have a building where people meet. We collect donations. Our mission is not to make profit, but to be a self-sustaining community of like-minded people.

The government says, "Cool. Sounds like you're a non-profit corporation. Here are the forms for that."

There is no reason for religion to be involved. Maybe we worship a god. Maybe we don't. The first amendment shouldn't care. We have fredom of association. Who cares whether that association is informed by a religious faith versus some other shared quality?

I am not interested in making things harder on religion. Making things easier on other non-religious organizations would accomplish even-handedness just as well.

Half the people in this thread are like, "you don't like churches" but I really don't care whether churches pay more or less taxes.

Only that a church is treated exactly the same as the humane society or the esperanto club or any other non-profit entity.

[cstanleytech]

42. I believe part of the problem cthulu2016 is that

the law as its being applied currently doesnt grant a bigger tax break to Christian churches over say a Muslim mosque, does not setup a religion as the state religion nor does it say that any or all of the religions are right nor for that matter does it say that they are wrong so I am not sure if a violation of the clause is even happening.
Now if this was a an argument over why the 10 commandments shouldnt be displayed by the government in a court room I could see the problem but otherwise to me atleast it seems like a very grey area.

[cthulu2016]

43. Depends whether one considers theism a type of religion.

A god or gods created the world and can influence the world. There is a point to performing rituals relative to that god or gods.

To me that is a religion. Millions of people operate outside of that framework so there is a thing one is within or outside of.

Whether we are talking about Jesus or Mohammed or Vishnu seems to me like a sectarian divide not so different from, say, Catholicism and Mormon.

All depends on one's vanatge point, I guess.

[cstanleytech]

44. You'll have to ask the IRS if they would recognize theism not me lol

[99Forever]

48. I agree 1000%.

Although the likelihood of this clear wrong being righted, is close to zero.

[greiner3]

49. I'm waiting;

For the first congress critter to bring this up.