Promoting Free Speech and Religious Liberty—or Just the Opposite

2017-05-08 – Last Thursday, the president signed an executive order “Promoting Free Speech and Religious Liberty.” Like most of what comes out of the White House these days, the hype on this is much, much more than the substance. Still, the hype represents pandering to right-wing evangelicals who wish to Christianize the nation.

The executive order does basically two things:

Trump tell the executive departments: these are my pals, see what you can do for them. The order really doesn’t tell them what to do. There was a big fear that would happen, but it didn’t. Basically, it says that, when an executive department writes rules and regulations, they should be sensitive to religious freedom concerns—within the law. This could become worrisome later, when the departments start writing their rules and regulations. But there’s nothing here yet.

Trump tells the IRS to lay off tax-exempt, 501(c)(3) churches who are violating the law by endorsing candidates for public office. This is not a good thing, but it actually does not represent a change in public policy. The IRS doesn’t really enforce this law as a general rule. Not now. Not ever.

Since we’re waiting for the second shoe to drop on the religious-freedom-sensitive regulations that Trump would like to see, I’m going to withhold comment until something actually happens. Today, I’d like to focus on tax exemption for politically active churches.

To do that, I’m going to compare the tax status of churches to the tax status of religiously neutral political committees.

Both are tax-exempt. Based on that fact, you might say, “what difference does it make?” Neither a church nor a PAC pays taxes—at least not one their exempt-function income. (They might pay taxes if they run a non-exempt business, but we’re not talking about that, here.)

So, what difference does it make?

The difference is not about the taxes that the entity pays. The difference is in the taxes donors pay. If you make a contribution to a church, you can deduct it from your taxes. If you make a contribution to a political committee, you can’t.

In recent years right-wing evangelicals have been complaining loudly about being persecuted. I think this is pretty crazy. (I’ve written about this before.) And when it comes to politicking, it’s a flat-out lie. It’s just the opposite. If you are a pastor and you want to campaign for a particular candidate, you can collect tax-deductible contributions to support the effort. If you’re a non-religious concerned citizen you can’t. It’s a special privilege given to churches and churches alone.

Of course, that’s not what the law says. The law contains some limitations on what a church can do (not on what members can do, the limitations are on what the church can do). Campaigning for a candidate could lose a church’s tax-exempt status—if anyone paid any attention to the law. But the IRS sure doesn’t pay attention to this law. The IRS has never wanted to be in the position of policing churches. And I think that’s the right call—for the IRS. They’ve relied on churches being law abiding. And in the old days they were. They talked about morals and issues, but they didn’t endorse or campaign for candidates.

That’s no longer true. But the IRS is still staying out of it. And Trump says that is good.

Some people think that churches should not be tax-exempt at all. I don’t agree. The tax-exemption law (Section 501(c)(3) of the Internal Revenue Code) lists a wide variety of tax-exempt purposes, including:

. . . charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency. (From the IRS website.)

Churches do lots of these things. And I’m not even talking about strictly religious activities. Even religious activities advance secular charitable purposes. They create community. They comfort mourners. They support the sick. Etc. Etc. I don’t think the government should be trying to define them.

But when they are being divisive, when they are getting into politics? Should they really be given a tax benefit that the rest of us don’t have? The law says no. But no one has ever enforced that law. And Trumps is definitely not going to start.

Some people are worried that Trump’s executive order will entice shady pols to set up fake churches (or takeover existing churches) so they can give tax deductions to people for what are essentially political contributions.

At some point a line needs to be drawn.

Trump’s order is comparable to Obama’s order about undocumented immigrants who came to this country as children (DACA). They are both orders not to enforce a standing law. They are about setting priorities for enforcement in a world of more violations than you can handle.

Trump (or someone) will need to separate the case of a small church pastor who endorses a candidate for president once every several election cycles from an active pol who commandeers a church. Obama tried to separate innocent immigrants from criminals in his enforcement of the immigration laws. Can Trump (or someone) separate innocent infringements of the tax laws from cynical misuse?

Trumps executive order seems to say that he doesn’t want to try.

And the rest of us who obey this law suffer the loss of our own rights and liberties.

What do you think? 

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