Can a church take sides? - use of tax policy to discourage political activity by churches - column

National Review, Sept 16, 1988 by William F. Buckley, Jr.

CAN A CHURCH TAKE SIDES?

THERE ARE two reasonable approaches to the whole idea of tax exemption for religious institutions. The first is: There shouldn't be any tax exemption for anybody, or anything. Not for the little church around the corner, not for Harvard University, not for the Olympic Laser Sailboat Committee. That position is so defensible that it happens to be my own: the government should get out of the way of using tax policy to encourage or discourage particular activities.

The second way is to say: Okay, here is your tax exemption, and here is a list of things you can't do. In days gone by, they used to call these "Prohibited Transactions." But they were full of holes. Tax-exempt publications could not spend "substantial" time urging legislation, and on no account could come flat-out in favor of a political candidate. But there were exceptions. For instance, a veterans organization could both back legislation and back candidates for office by name. The rationale here was that veterans organizations were substantially about legislation favoring veterans, so what is the use of having a veterans organization if you can't use it to lobby for your interests? I participated in the organization meeting of one journal of opinion which, reaching for tax deductibility, toyed with the notion of launching a "veterans organization" to be called "Nothing's Too Good for Our Boys," and thumbing its nose at the IRS all the way to the bank.

But the business of denial of tax exemption can become an instrument of harassment, and that is happening right now to the Catholic Church. One doubts it will ever come to a question of actually withdrawing tax exemption from the Church. I have no doubt that if that day approached, the Church would contrive to meet that challenge by having a great hand reach down from the skies, pick up the U.S. Capitol, and drop it into the Potomac. But the attempt cannot be simply ignored. It is backed, of course, by the American Civil Liberties Union, something called the National Association of Laity, and a couple of dozen other pro-abortion organizations; and, yes, the alleged infraction of the Church is its stand on abortion. Specifically: the 1980 attack on two pro-choice congressional candidates by Humberto Cardinal Medeiros of Boston; a 1984 statement by his successor, Archbishop Bernard Law, and 17 other bishops defining abortion as the critical issue of that year's presidential campaign; and a television appearance, also in 1984, by Archbishop John O'Connor of New York urging voters not to support candidates who take a pro-choice stance.

As it ahppens, the legal arguments are winding around a technicality, namely whether the plaintiffs have "standing." I.e., have they suffered, or will they suffer as the result of the court's verdict, and do they therefore have the right to bring a grievance before the courts? The defense claims that any future ruling by the courts cannot undo something done in 1984. The plaintiffs argue that the removal of tax exemption is the only way to guard against future infractions.

But the interesting question is extra-bureaucratic. It is: Should a church have the right, while enjoying conventional tax protections, to urge the incorporation into law of a deeply held moral belief? We don't believe in polygamy: should a church be penalized for advocating anti-polygamy laws? During the nineteenth century in America, the case against slavery crystallized above all in the churches, even as it had done in Great Britain. Was it incorrect for churches to press the case for emancipation among their parishioners? "Incorrect" in the sense that to do so would be to violate the (then non-existent) tax code?

Insight into the question comes by asking oneself, Doesn't the constitutional prohibition against denying the freedom of religion subdue the case against the Catholic Church? The Christian Century magazine lost its tax exemption for a few years because it came out for Lyndon Johnson for President in 1964. One could understand if it had lost its sould for making that argument, but the secular punishment, in order to be plausible, should have been based on the extra-moral character of the partisan position. If a Catholic bishop said, Vote for any Republican, one might properly raise the objection. But if he said, Vote for any candidate, irrespective of whether he is Republican or Democratic, who believes in protecting the life of the unborn, surely he would be arguing a moral position distinguishable from the kind of partisanship the IRS is seeking to discourage.

But of course, it's as simple as this: you crank up all these eristic arguments against this organization or that one depending on what positions they are taking. I'd like to see action by the anti-Catholic team taken against a church that recommended voting only for candidates who believed in gay rights. But that won't happen. Now come? Easy. Hypocrisy.