Does Church-State Separation Require a Tax Exemption?

There’s a lot of weird stuff written in the context of church-state issues these days, much of it emanating from the common albeit not universal conservative argument that this is a “Christian Nation” wherein church privileges are no violation of the First Amendment. But I do think the strangest argument I’ve seen yet was made yesterday by The Federalist‘s Ben Domenech.

As a preliminary matter, Domenech uses the old ax-grinding device of finding one rather out-there op-ed and attributing it to “the Left.” And so presumably everyone to the left of Lindsey Graham is complicit in an effort to abolish the tax exemption for churches and church-based charitable institutions because one dude at the New York Times (writing at TIME magazine) favors this step (actually, he proposes taxing secular non-profits, too, like those famously left-wing institutions the private universities, but why mess up a simple heroes-and-villains argument with such details?). Yes, there have been the occasional article suggesting that religious institutions that defy discrimination laws ought to risk their tax exemption, and more frequent questions about the scope of the Religious Freedom Restoration Act in wake of its widening by SCOTUS in the Hobby Lobby decision. But that is emphatically not what Domenech is talking about.

But what’s even stranger is his argument for the tax exemption: that it is, despite its rather obvious reflection of a privileged position in the tax code, the only guarantor of church-state separation.

Oppenheimer [the dude writing at TIME] may argue that ending tax exemptions would just treat religious institutions like everyone else, but that’s the problem: everyone else already knows exactly what that means. American households live in fear of the capricious malice of the Internal Revenue Service, which may more or less at will strip them of possessions and peace of mind with no appeal. It is the closest thing to the hard hand of tyranny the individual American will ever experience — certainly its ordinary exercise of power, seizing one-quarter to one-half of a family’s livelihood every year, exceeds anything George III ever dreamt of inflicting — and so we may only imagine the damage that would be wrought by the same gray and grim bureaucracy when unleashed beyond American homes to American civil-society institutions.

Domenech goes on and on and on about IRS tyranny, but you get the idea: all Americans are living under the dictatorial yoke of the Tax Man, and so you cannot “protect” religion without exempting all its works from taxation permanently. Isn’t that a rather round about way of reforming the enforcement of the tax laws? And isn’t this really an argument not for a tax exemption, but for a permanent and comprehensive of churches from all secular laws? I mean, I’m sure that Ben Domenech considers many laws outside the tax code tyrannical too. Why stop there?

I don’t see any bright line there, which is why I’ve always suspected the whole “religious liberty” campaign was aimed eventually at carving out a zone of complete legal immunity for churches, sort of like what the clergy enjoyed in many countries during the Middle Ages (read or watch Murder in the Cathedral for more detail). But I won’t attribute that view to individual conservatives or to “the Right” until it become a bit more manifest.

The funny thing is the only actual major politician I’ve ever known to embrace a repeal of the tax exemption for church-related enterprises was that famous leftist George Wallace. But again, why complicate a nice Manichean story with such messy facts?

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.