Attorney at Provident Law®focusing on religious liberties, church and nonprofit law, commercial litigation, business law. Reprinted with permission from the author.
At a recent CNN Town Hall, Democratic presidential candidate Beto O’Rourke was asked whether religious institutions who oppose same-sex marriage should lose their tax-exempt status. He replied:
Beto’s answer was met with thunderous applause by the audience. But it also echoes many social media debates surrounding churches where the consistent refrain is that churches who do not believe the way I do should not be allowed to maintain their tax-exempt status. Given the increasing drumbeat of this argument, it’s worth remembering why churches are tax-exempt in the first place–and it’s not because they happen to agree with you or your preferred views on whatever social controversy exists at the moment.
Churches are tax-exempt, first and foremost, to protect the free exercise of religion and to prevent the government establishment of religion. To put it simply. the separation of church and state demands that churches remain tax-exempt. In 1819, United States Supreme Court Chief Justice Marshall stated in McCulloch v. Maryland that “the power to tax involves the power to destroy.” Taxation is an exercise of sovereignty and control by the state. What the state taxes, it can control and/or destroy through the power of taxation.
Think about this practically. For most churches, losing a property tax exemption means that the church would likely fold. This is especially true in localities where property taxes are high. Small churches would not be able to afford paying the taxes and so would go under, per Justice Marshall’s axiom.
Think also about the raw power assertion evident in Beto’s statement. He wasn’t talking about removing tax-exempt status for all churches. He was advocating removing tax-exempt status for those that did not agree with his view with regard to human sexuality. So his plan would be to remove tax-exempt status–to punish–churches who hold disfavored views. This is the quintessential definition of the state establishing a preferred religion. Beto’s view does not envision a state that stays peacefully on its side of the wall separating church and state, but rather one that scales the wall to destroy a segment of churches that disagree with the views of the state. Other churches that agree with the views of the state will be allowed to flourish.
Since the time the first tax code was adopted by the federal government, there has been an unbroken history of tax exemption for churches. There is a very good reason for this and we ignore that history, and the reasons behind it, at our own peril. A country that adopts Beto’s view fosters an aggressive version of the state who is now empowered to weaponize the tax code to destroy religious views that are contrary to its own. No matter how many platitudes or applause lines you throw out in a campaign, the truth underlying this view is the establishment of a preferred state religion and the destruction of the free exercise of religion.
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