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By Attorney Steve Grow
December 7, 2011
NewsWithViews.com

I am quite sure that freeing preachers to endorse political candidates would present no clear and present danger to the country. I think there are some strong constitutional and other arguments that it must and ought to be allowed even if (heaven forfend!) some voters would be influenced to vote in accordance with the endorsement.

Our society is more pluralistic than ever before in its history, religiously and otherwise. From atheism and agnosticism and humanism (which I would characterize as religions, or at least as religious views, though not everyone would agree with me), to hundreds of denominations (and tens or hundreds of thousands of congregations) professing to practice Christianity, Judaism, Islam, Buddhism, Hinduism, Unitarianism, Scientology, Hinduism--you name it, our society has religious practitioners of all stripes. I am quite sure that if any one segment of this group unifies around one political candidate, one can be assured that others will unify in opposition to the candidate, if only because of petty jealousies of the sort that make 200 plus protestant denominations look down their noses as each of the others from time to time. If in the approximately 175 years of the republic preceding the Lyndon Johnson amendment (which, in the early 1950s I think, first muzzled the speech of nonprofits on pain its death) as a nonprofit, no religious point of view managed to take over the government and suppress and make illegal the others. The practical likelihood of that happening now is much lower than it ever was.

An individual politician running for office often considers it a clear and present danger if anyone opposes his or her (re)election (which from an often quite conceited, often narcissistic, point of view she or he considers vital to the country), but in my book that is just tough for the politician. We do not, under any pretext, abridge the freedom of members of the press to connect the dots and explicitly endorse or oppose a candidacy that their take on the facts and principles relevant to the issue leads them to support or oppose. The First Amendment hallows free exercise of religion and freedom of speech just as much as it does freedom of the press. Why are we allowed to abridge the freedoms of speech and of free exercise of religion under the pretext of just enforcing a tax measure? It is just a pretext, isn't it?

All the great religions include principles and admonitions highly relevant to our behavior in the financial and political marketplace. It is a short step from the legislation embodied in the Ten Commandments, which all religions tracing their lineage to Abraham, including Islam, regard as sacred to some extent, to a position on a political candidate's worthiness for office. To take a simple example, thou shall not commit adultery. Although habitual adulterers among our politicians and clergy might welcome a muzzling on this subject, why should not any person in any setting be allowed to say Mr. or Ms. X is an adulterer, is breaking the commandment, and is therefore unworthy of your vote. Devoted adulterers in the congregation or among the clergy itself, which have never been in short supply, are free to ignore the advice. They always have.

Consider now Jesus's reply to the Pharisee seeking to trick him into a jail or death sentence by asking whether the Roman Empire had the right tax him. Jesus asked the Pharisee to show him a coin, with which the taxes had to be paid, noted that it had an image of Caesar on it, and said, "Give unto Caesar what is Caesar's, and unto God what is God's." Now, in the presence of the Pharisee, he did not really say whether every piece of money bearing Caesar's image was entirely Caesar's, but he let the Pharisee walk away thinking that if he wanted to. He certainly did not say that whatever Caesar, or any other politician or group of politicians said was Caesar's, was really Caesar's and not God's, just because the politician said so, or just because they embodied the pronouncement in a taxing measure or other law. Never did he say anything equivalent to a claim that individual rights to life, liberty and the pursuit of happiness, widely regarded as natural or God given rights, are legitimately any man's or woman's to abridge or withhold from any other--under any pretext or under color of any political or religious office, creed or doctrine. Never did he say that Caesar had a legitimate claim to the whole of what a person earns from the sweat of his brow, even if the currency in which he saves it says "Hail Caesar" or "E Pluribus Unum" or "Heil Hitler" or “E Pluribus Send It All In”.

If pressed, I think Jesus would have inclined to the view that Caesar himself, and everything he had, weren't really only Caesar's at all. Jesus's remark, often quoted by political authorities seeking to have their own view of what they are entitled to do accepted, despite religious misgivings, does not specify how to evaluate whether something is God's or Caesar's. The politicians have pressed, and often succeeded with, a sophistical argument. Although Jesus’ remark supports the view that in some measure he supported a separation of church and state, it does not support the view that the terms of the separation are solely up to the state, or to those holding offices within it. Nor do his remarks support the view that it is solely up to the persons holding important religious offices, in nations where a religious bureaucracy has become established as a government. Jesus opposed and exposed and embarrassed to death--his own--most of the established religious authorities of his time and society. Thomas More was right, in my view, when he said just before being beheaded: "I die the King's good servant, but God's first." He would have been mistaken if he had said "but the Pope's first" or "but the Church's first", even though he had sided with the Pope's view and the Catholic hierarchy in opposing Henry's divorce.

If Popes or other religious bureaucrats truly were infallible instruments of God, rather than ordinary, albeit dangerously powerful, sinners like the rest of us (some have been unusually good people, of course), then, for example, alter boys would always have been safe in church; murders and enslavements would never occur under the professed authority of God; the murderous Crusades would never have been launched or supported by the obviously unchristian popes of the time; and no one would ever attempt to degrade and enslave a woman, man or child, not even a Muslim or fundamentalist or Christian woman, under the pretext of being a good practitioner of any religion professing to worship and obey God. Secular bureaucrats and office holders are no less susceptible to foibles and failings and the temptations to become control freaks (usually of others, rather than of themselves). Women were never safe from molestation in Bob Packwood's office. There is no completely reliable human infallibility--not even among confirmed atheists and secular politicians. Not even among the “religious” in name and pretext only.

Our written constitution, by the way, takes a very explicit view on whether, under our government, it is Caesar's business to suppress speech and political teachings in church. It says Congress shall pass no law (not even a tax law) abridging freedom of speech or the free exercise of religion. Interpretations of our Bill of Rights have made this binding on the several states (most of whose constitutions also contain their own guarantees of religious freedom). Our Caesar has spoken the right words, in my view. Not that the people lack the power to amend the constitution so it no longer says these words. (I do not say the right, because in my view no one and no group of people possess the right to suppress fundamental human freedoms of any individual under any pretext, even by constitutional amendment. In my view rights including those enshrined in our Declaration of Independence, notwithstanding what many modern academics have said, flow from more fundamental sources than government.) We have, as I say, the power to ruin our constitution thorough unwise amendments, but we have wisely made that a quite difficult chore.

There is another relevant approach to the issue. The Catholic Church has been roundly criticizing for never having opposed Hitler's rising political star or the actions of the Third Reich as they unfolded in Germany and Europe and Africa. In fact, there was a concordat, a sort of treaty of noninterference, entered into between the Church and the Nazi party in the early 1930s. Under Hitler’s racial laws, Jesus, Joseph and Mary would all have had to be marched to the gas chambers. In fact, if Adolf Hitler was himself 1/8 Jewish, as he himself suspected I believed, then the Fuhrer himself should have been the first in line for the fires of Auschwitz. (Secular politicians and atheists were just as asleep at the switch, of course.) In our country, were another Hitler or Aaron Burr or similar rose by any other name to seek the presidency and win the nomination of a major party, we should welcome the opposition of religious and nonprofit groups to his or her candidacy. If we still had widespread slavery (we do still have de facto slavery in some of our family, work and social environments), we should welcome a coalition of abolitionist ministers to the political forum and allow them to admonish their followers to vote against candidates they judge not likely to seek to end it, and to vote for candidates that will seek to end it. If a group of churches whose congregations are predominantly black, white, green, pink brown, white, tan or polka-dot (as I am with all my freckles) or whatever, should wish to support Abraham Lincoln or Martin Luther King, Jr. (the latter being by far the greatest American who has lived during my lifetime, in terms of what he did to improve our country), because they think they would be effective advocates for needed change, or effective protectors of vital institutions and laws, then they should be allowed to do so. Likewise if they wished to oppose an enemy to their freedom—such as George Wallace or Robert Byrd (when he was a member of the Klan) or vote in a new city council (that would fire a Bull-Connor-like local police chief and enforce proper law and order against the local Klan).

None of these groups should be vulnerable to retaliation by the politicians through revoking their tax status because of what they said in the free exercise of either their religious judgment or their judgment of what needed to be said, for whatever reason. Loss of tax status is the death penalty for a nonprofit, and everyone knows that it is. Nor should Louis Farrakhan or Reverend Wright or "extreme liberals" or "right-wing nuts” (have you noticed how variations on that phrase are now used in many circles just as "red" or "commie" was in the early 1950's) be barred from the marketplace of ideas and information and influence. Just as we protect quite blatant pornography (the protection of which is not, in itself, vital to our way of life—and that’s putting it mildly), because we want a wide moat of protection around speech and artistic expression that might be anathema to many (even a large majority) of contemporaries, we need to do the same in providing a wide mode of protection around the free exercise of religion, freedom of speech, and freedom of the press generally. Prosecution and tax status revocations would, in the nature of things, always tend to be selective based on the content of views expressed--few politicians in power can help it, and the run of the mill politician certainly cannot. They tend to demonize and only care about their own personal "enemies” lists.

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In my experience, most religious officials have very limited influence. This is because most are people-pleasing, crowd-pleasing individuals only intent on entertaining and not offending their parishioners so as to attract and retain a following willing to keep them in their positions and pay their salaries. Not unlike the typical politician or entertainment figure. Ministers who admonish their followers and confront their shortcomings, rather than regaling them with the shortcomings of others, are valuable indeed--but they are few and far between. They have small congregations. Almost without exception (though there are exceptions), our religious leaders with large, prosperous churches and big followings are in that position because of the flattering lies they tell and the obdurate silence they maintain about many obvious things that should be said. There are truths they wouldn't utter if their life depended on it, even under torture in most cases. (Just like most of our secular politicians and most of the rest of us.)

If you doubt my opinion that ministers have limited influence, consider the following well-established fact: Most regular church, temple, mosque and other attendees promptly proceed to ignore what they have been taught and learned as soon as they leave the grounds--usually much sooner. They will angrily quit the church if they are personally admonished, especially if the admonishment is well-founded. They return to their daily lives of mistreating their families, their customers, their business associates. They lie, cheat and steal all week--pretending otherwise. They pretend this is all not so bad. Most of them only go to church in the first place to get support for the notion that what they do all week is not anathema to God and a person with a healthy conscience, and they are willing to pay large sums to someone who will give them such a pass, all dressed up with religious quotations. But since we have no "established" religions, none of us is legally obligated to tithe or attend any church or even to wait until the sermon is over before voting with our feet. Most of us, being no better than the hypocritical preachers we sought out to soothe us, vote with our feet in droves against sound religious teachers and flock to the flattering charlatans. Unmuzzle the preachers and keep the secret ballot, and people will decide for themselves how to vote—most without paying much attention to the preacher’s endorsement.

Even (this may come as a total surprise to some, so prepare for a shock!) the religious officials themselves distressingly often set a high standard of personal misconduct and hypocrisy. What I do is a much more effective teacher than what I say. A particularly troubling recent favorite of mine is the tendency of religious officials in certain parts of the globe nowadays to ignore the admonition of the Prophet Mohammed that there must be "no compulsion in religion", or words plainly to that effect. Have they set themselves as false successor prophets of Mohammed with authority to overrule him? Are they themselves infidels and hypocrites? Another is the countless American religious figures who pay enormous attention to storing up treasures on earth and very little to amassing treasures in heaven. Perhaps the price of protecting the free exercise of religion in most churches, which struggle, even with tax deductibility, just to get by from year to year, is protecting these ministers in their empires--just as our free speech doctrines protect a lot of lying, misleading, defamation and pornography up to a point. It is not an entirely pretty picture, but is perhaps necessary if we are to protect the better sorts.

There is perhaps a constitutional argument to be made that amounts contributed to one's church, mosque, synagogue or temple must be tax deductible, up to a point. This argument would be grounded on the view that some expenditure is necessary to enable the free exercise of religion. Perhaps up to this point, the constitution should be viewed as prohibiting any law (even a tax law or scheme within a tax law) that taxes such sums or that on its face restricts speech on matters of religion or otherwise. There wasn't a federal income tax when the Republic was established, although of course a specific constitutional amendment was adopted allowing one around the time of World War I.

By the way, many have made the argument that allowing nonprofit tax status to a church violates the constitutional provision prohibiting any law respecting the establishment of religion. In my view, the establishment clause would only be violated if only certain religions and not all religions (including the humanist, atheists and agnostics and none-of-the-aboves) were given the right to nonprofit status. Preferring one religion to another is what violates the establishment clause.

As for the separation of church and state, I believe this was put into the constitution to prevent government officials and a favored religious authority from ganging up against the people, as has so often happened past and present history. (For example, autocrats in Europe had their own secret police, but they did not need them always because the Church functioned as the mind-control, thought-control, watching-everybody-all-the-time equivalent of the KGB. You would be naïve to believe that things said in the Confessional that indicated a threat to a local tyrant, political or religious, were never reported.) It was never intended to prevent people ganging up on out of order politicians with the support of non-established religious institutions and principles. The “free exercise” of religion must be allowed even on federal property or in the context of federal programs.

There can be no validity to an argument that income-tax amendment to the US Constitution conferred the right to abridge the free exercise of religion, speech or press, however, either on its face, or in operation and effect. Some politician or judge correctly observed that the power to tax is the power to destroy. That is why in our country we have never created any unchecked, unconstrained right to tax. We must never hold that the government's rightful power to tax under the income-tax-amendment is unconstrained, or amounts to the rightful power to destroy more sacred liberties explicitly protected by the constitution. On equal-protection like grounds, it should be illegal to grant distinction in tax treatment based on whether or not someone does or does not to speak freely on religious, political or other matters. A way of stating the issue would be whether the government may ever grant or deny a tax privilege or other privilege available to some, on the basis of whether someone chooses to exercise his right to freedom of speech or the free exercise of religion. Personally, I think the free speech and free exercise of religion rights should both be read as barring government from granting or denying tax exemptions or deductions, or other privileges or rights, in a discriminatory manner based on whether anyone, whether associated with a not for profit or not, chooses to say or advocate a political or religious position, popular or unpopular, including the endorsement or opposition of a political candidate. The income tax power should not be allowed to suppress discourse or impose silence on any issue, political, religious or otherwise. To me such a distinction in tax treatment is, and ought to be declared, invalid on its face--on its face, as well as in operation. Any other view amounts to the view, fundamentally, that if the government needs money it is entitled to destroy our liberties freely.

Even though we indulge the fiction of muzzling an entity or organization, all prohibitions on speech muzzle individual human beings, for only they can speak. (Teleprompters alone cannot, though like an overloud stereo system, they can be programmed by people to show language or even broadcast it by loudspeaker.) All organizations are composed of and led by human individuals. So it would be a crock to believe that we aren’t muzzling individual humans, only organizations or entities, so that the muzzling is really not so bad after all.

All nonprofits should be unmuzzled in my view, on freedom of speech grounds, but the religious ones enjoy the support of additional arguments not applicable to the nonreligious ones because they are entitled to the “free exercise” of religion. Our tax laws must not be allowed to shoot any nonprofit dead because an individual associated with it speaks up or endorses or opposes a political candidate. When you attack expression by any entity, you are really attacking individual expression. There just isn’t any other kind.

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More speech, not less, is the solution. Crowd the marketplace of ideas and information with views on religion, morality, politics, etc. In the end, we will all be better off than we would be otherwise. At least our public squares won't become Tiananmen Squares. Tiananmen Square is one of countless public squares in the world where input and ideas, religious, political or whatever, are most decidedly unwelcome. The Chinese leadership didn’t hesitate to shoot dead many of the critics it could lay its hands on. Gunfire was heard all around Peking for many days, and it wasn’t ordinary citizens doing the shooting (they are forbidden to possess firearms). In China, only the tyrants have such teeth. What a shame.