Churches Rally To Overturn Gay Marriage

It seems some local churches are organizing, and maybe even leading, efforts to organize voters to pass the anti-gay marriage amendment on the ballot this November.

Me, I wonder whether this activity would cause the churches to forfeit their tax-exempt status under Internal Revenue Code § 501(c)(3). Churches are presumed by law to be exempt from paying taxes of all sorts. However, this tax-exempt status of a church is dependent upon the church not engaging in political activities. Registering people to vote, encouraging people to vote, and in particular, telling people how to vote, are all quite obviously political activities. Under the applicable test, a church can conduct “public education” in the form of holding meetings and distributing material to “inform” “voters” about pending legislation (which includes referenda like the initiative amendment in question). I put the phrases “public education,” “inform,” and “voters” in quotation marks because that’s not what’s really going on here – what we’re talking about is the church urging its parishioners to vote a particular way on a particular issue. This is often done by creating what the IRS calls a “voter guide,” and while such a guide is supposed to be neutral, one wonders whether a church could possibly be neutral on this issue – for instance, a reference to a Biblical citation condemning homosexuality would rather obviously be an attempt to influence a voter reading the guide to vote in a particular way.

On this point, The Wife goes further than me and wants to know why churches don’t pay taxes anyway – she is of the opinion, although she does not articulate it as such, that exempting churches from paying taxes constitutes an explicit governmental subsidy of religion and therefore violates the Establishment Clause. After all, we pay property taxes on our house, which go to pay for things like the sewers and roads. But churches also use sewers and roads – debatably, they use them more than we do, because they service hundreds if not thousands of people, especially on Sundays (and Wednesdays for some of them). But the churches pay no taxes for these public services. In effect, I am required to subsidize the church down the street to have a sewer taking poop away from its restroom and a road leading to it so people can go poop in that restroom as part of their visit for religious purposes. The Wife’s concern is not a frivolous opinion – far from it – although existing case law holds that because the tax-exempt status goes to all churches, a tax-exempt status for a church isn’t a subsidy of any particular religion and therefore permissible under the Constitution, and indeed, some have argued that an attempt to tax a church would violate the Free Exercise Clause.

Maybe these churches are so intent upon denying gay people the happiness of marriage in fulfillment of their interpretation of God’s will that they’re willing to start paying taxes in exchange. If so, God bless them. (Or not, since God doesn’t really exist, but that’s a different story.) But I have a feeling that they’ll continue to demand tax-exempt status despite this violation of law. Or, maybe they’ll suck it up and admit that they violated the law and agree to pay the excise tax and related penalties for doing it, since the church typically faces a maximum of $10,000 tax penalty for such a violation and a $5,000 tax penalty levied personally against the “managers” of the church who authorized the political activity. This may not be a harsh enough penalty – provided the church keeps its tax-exempt status – to deter a church from deliberately breaking the law to lobby for something it considers important. And many churches consider this issue very important indeed.

Isn't it outrageous that the penalties are so low? That enforcement of this section of the law is so lax and abuse so easy to accomplish? That churches that are made subject to this tax may well be able to rally public support to their side? No one with any kind of political ambition wants to be called the prosecutor who sued a church -- even if the church was really breaking the law. The whole thing seems like a very cynical manipulation of the law. And for someone like me, who does not concede that a church is operating for a high noble purpose, this is particularly obnoxious.

Also, thinking about the initiative’s chances of success or failure: a politically astute friend (the one of whom I wrote yesterday) correctly cautions that there are a lot of voters out there who will simply vote “yes” on any initiative – he calls them “yeah, whatever” voters. “This doesn’t really affect me, but someone thought it was important, so I guess I’ll vote for it,” they think, and check “yes” without really thinking about the issue all that much. Now, I don’t’ want to diminish the impact of such voters; a good case can be made that such voters caused things like the lottery (more people voted for the lottery than actually buy tickets, and plenty of non-voters buy lottery tickets) to come into law. Query if there are a comparable or appreciable number of people who reflexively vote “no” on initiatives for similarly unreasoned motives. Kind of like the libertarians who routinely vote “no” on all bond initiatives just because they are bond initiatives, and without regard to the need or wisdom of the particular initiative on the ballot.