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God Doesn't Follow the Law

By Christopher Ketcham  Posted by Russ Wellen (about the submitter)     Permalink
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Author's Note: The New York Times this week is running a four-part front-page series on what I call religious exceptionalism -- the art and artifice of religionists who freely break the law -- a topic in which I have tried to interest editors from at least a dozen magazines and websites over the last year. Alas, the effort was in vain. For example, one editor told me that he wanted more "fun reporting" and that an exploration of the organized criminality of religion in the U.S. was "just not my thing." Ditto, as noted, editors across the country (even, strangely, The New York Times Magazine, to whom I pitched the idea). Anyway, kudos to The New York Times for coming around and taking the time to smack down the tax-thieving, law-breaking religionists in our midst. Below is my essay on the matter.

"History. . . furnishes no example of a priest-ridden people maintaining a free civil government."
-- Thomas Jefferson.

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It is a certainty in the United States that no one knows or cares to know the exact value of the ecclesiastic demesne. We can, however, guess. In 1875, President Ulysses S. Grant said that taxable church property amounted to $1 billion. One hundred and one years later, in a 1976 study that has never been replicated or updated, researchers Martin A. Larson and Rev. C. Stanley Lowell found that total ecclesiastical property by 1906 came to about $1.3 billion. According to Larson and Lowell, by 1936 it was $3.8 billion. By 1964, it had risen to a spectacular $79.5 billion. When Larson and Lowell tallied their figures for 1976, real church wealth amounted to at least $158 billion, with churches the owners of an estimated 10 percent of all U.S. property. The figure adjusted for inflation today comes to at least $560 billion, likely the greatest non-profit wealth expansion in history (with the real value likely much greater). The reason for the accumulation transcends the giving of the flock: It is due, rather, to a systemic political bias in the form of the generous tax exemption traditionally afforded religious property and income, an arrangement that in Western history is as old as the Sumerian kings and the pharaohs of Egypt.

At what rate this heaping fortune would be taxed is unknowable, and in any case the numbers themselves are largely suspect, given that churches refuse to disclose their finances, as they are not asked to. The Internal Revenue Service allows religion a freedom from regulation that exists nowhere else in American monetary life. Religious entities, an IRS spokesman assures, are the only non-profits not required to report their finances, nor are they even asked to file for a tax exemption, and thus there is no figure for the number and kind of entities receiving exemptions. The popular understanding of the First Amendment would appear to render this approach an absolute: If taxation be the power to destroy, then its application to religion, it is argued, is the incipient abridgement of free exercise.

Not every one agrees, of course, including James Madison, the chief architect and prime mover of the religion clauses in the First Amendment, which, in addition to securing free exercise, also enjoined government from enacting laws "respecting the establishment of religion." Madison as early as 1784 came to regard church tax exemptions as a kind of subsidy -- in effect an act of establishment. As early as 1817, he was already cautioning that "the danger of silent accumulations & encroachments by Ecclesiastical Bodies have not sufficiently engaged attention in the U.S." What Madison feared was not so much theocracy but what we might term theoligarchy, a creeping rule of the religious rich and few. "[T]here is an evil which ought to be guarded against," he wrote, "in the indefinite accumulation of property. . . by ecclesiastical corporations." His warnings were prompted, in part, by his disgust with the growing fashion in the 1810s of federal prayer days and days of thanksgiving and the presence of paid clergy in the halls of Congress, all of which he saw as regressive and which he lobbied to abolish, without success, toward the end of his presidency.

Madison in his concern was not alone. In 1875, President Grant, on the receiving end of a 900-foot petition of 35,000 signatories demanding the end of church tax exemptions, warned the nation in his state of the union that "so vast a property as here alluded to, without taxation, may lead to sequestration, without constitutional authority." Grant also worried, on a typically practical tack, as to the fairness of religious entities "receiving all the protection and benefits of Government" without bearing any of the cost. Less than a hundred years later, in 1959, the executive secretary of the World Council of Churches, Dr. Eugene Carson Blake, warned that "[w]ith reasonably prudent management the churches ought to be able to control the whole economy of the nation" within a century. Blake, a thoughtful clergyman and believer in the church/state wall, was not pleased at the idea.

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The IRS today likes to pretend it maintains at least a few regulatory brickbats to bar the "ecclesiastical corporations" from direct influence in the halls of power. Chief among the rules is that churches shall not endorse candidates or otherwise engage their flocks in electoral efforts. This unfortunately did not sit well with certain congregants or their leaders in the run-up to the re-election of George W. Bush, whose victory arguably rested more than any other factor on the singular purpose and organization of an evangelical franchise. Mobilizing the faithful, Bush's arch-fixer Karl Rove conducted weekly conference calls with the priests of the movement, who handed over membership lists for registration drives, while the Rev. Pat Robertson counseled at least 45,000 churches on the mechanics of working to re-elect the born-again president. All of this was in frank violation of IRS law.

* * *

Lack of oversight and disclosure coupled with timidity in regulation (or outright impotence) predictably leads to opportunity for fraud, or, at least, to generous allowances in the definition of "religious institution." The village of Fleischmanns, New York, like all small towns a dependency of property tax, last year went bust after the majority Hasidic community declared their summer cottages "religious institutions." Wiccan covens, brothels operating as churches of love, whole towns of New Ageists have received similar tax exemptions over the years. In Florida, a Biblical theme park, featuring live Jesus acts, demanded exemptions in a lawsuit that remains snagged in the courts, while in West Virginia a white supremacist group that worshiped, among other divinities, white people, received an exemption for land dedicated to prayer services (so did the Klu Klux Klan in Harrisburg, Penn.). The thieving psychobabble cult of Scientology retained its tax exemption by a simple name change: it became the Church of Scientology.

Meanwhile, the Austin, Texas chapter of Ethical Society, the secular humanist group, fought bitterly in the regional federal appellates to win tax exemptions in 2004 for its atheist "ceremonies." The Ethical Society victory, in retrospect, appears to dispel any meaningful curb on religious tax exemption claims. It makes hash of the Supreme Court's only key ruling on property exemptions for churches, the Walz case of 1970. The Walz court offered that the religious tax exemption must be upheld primarily because it serves the social good of furthering the charitable function associated with religion -- a function then as now purely ostensible and almost entirely taken up by social security for the disabled, county shelters for the homeless, state schools for the blind and deaf, etc. (The majority's argument in Walz, it should be noted, is predicated on a delusion: Researchers at the University of Arizona concluded that just 3 percent of an average congregation's total budget is spent on social services; only 6 percent of congregations have a staffer who devotes at least a quarter of his time to social services. "The bottom line," said study author Mark Chaves, "is that most congregations are involved in social service activity in only a minor and peripheral way.")

Anyway, charitable purpose was not a factor in the Ethical Society decision: Now it appeared that any group, charitable or not, that appears to worship just about anything -- a newt's tail, Mein Kampf, godlessness -- presumably gets a tax exemption, or, at the very least, can tie up the courts demanding one. The prevailing thought is that the First Amendment (rightly) bars government from distinguishing between traditional religion and those beliefs that take the place of traditional religion -- meaning that the only challenge to the tax exemption claim, under this interpretation, is to the sincerity of the belief, with state inquisitors left to invent new and exciting means for extorting these matters from the believing mind.

If verification and regulation are thus deemed illegal, and widespread fraud is therefore a given, the simplest way out of the morass, perhaps, is to tax the churches across the board, much as that similarly cherished creature of the First Amendment, the press, has been taxed and has not suffered for it, except to become more competitive (though the exemption might be retained for those elements of a church -- schools, soup kitchens, shelters -- that actually serve the charitable function). Indeed, why should a righteous free market fund believers over non-believers? As Ben Franklin noted, "When a religion is good, I conceive it will support itself, and when it does not support itself, and God does not take care to support it. . . 'tis a sign, I apprehend, of its being a bad one."

But don't wait up nights for this eventuality, for in a society that boasts 325,000 houses of worship, roughly one for every 860 persons, in which church-going is the highest in our history (and the highest in the world), in which 83 percent of people take the Bible to be the "actual" word of God, half fear the devil, three-fourths believe in religious miracles, and a mere 9 percent swallow whole the concept of Darwinian evolution, there is no reason to expect the narcotizing effect of religion to cease its sway over presidencies, legislatures, and, most dangerously, over the high courts of the land, all of whom must in one forum or another answer to a public jealous of its hypnotic totems. Religion in the United States is more than simply respected. It is adored, petted, drooled over; it can do no wrong. This irrational consideration has catalyzed a silent but tectonic rifting not simply of the tax system but of the American legal system itself. Two separate and unequal set of laws now exist unquestioned: one for believers; and one, unbelievably, for everyone else.

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One can date the beginnings of the change to the late 1960s, in the activist court of Warren Burger that brought the passion for civil rights to also bear, erroneously, on "equalizing" the field for religion. When in 1973 a group of Wisconsin Amish came before the Supremes demanding the right to remove their children from school in violation of the state's compulsory child education laws (but in keeping with Amish practice), the court's language, as penned by Chief Justice Burger, was unequivocal: the believer, by the inherent purity and goodness of belief, required special treatment. If, for example, the court could find a better means of applying the law in favor of the free exercise of belief, then it had better do so. Thus compulsory education, while important for the rest of Wisconsin, was not important for the Amish because it was determined the Amish, as believers, had an ideal lifestyle. Religion to the Burger Court was always, everywhere, a good thing. And by that apparent goodness religion stood, in essence, above the law.

The court's language of course reflects a common and widespread belief among Americans that religion is a net benefit for society, anchoring a functional moral order, and that godless societies -- morally adrift, spiritually bankrupt -- would therefore tend to suffer worse social problems. It is a belief unsupported by the facts. A recent study in the Journal of Religion & Society found, in fact, that the inverse may be the case. Key indicators of social distress -- such as homicide and suicide rates, mortality, STDs among juveniles, youth pregnancy, abortion and divorce rates -- are less prevalent in developed democracies where people attend church less or are less inclined to believe in a divine creator. According to the report, "[the] data examined in this study demonstrates that only the more secular, pro-evolution democracies have, for the first time in history, come closest to achieving practical 'cultures of life' that feature low rates of lethal crime, juvenile-adult mortality, sex related dysfunction and even abortion." Study author Gregory S. Paul notes that Japan, France and Scandinavia have been most successful in fostering this "culture of life," while noting that these three comprise some of the most godless developed democracies on the planet. By contrast, the highly religious, anti-evolution U.S. -- the only prosperous first world nation to retain rates of religiosity "otherwise limited to the second and third worlds" -- is almost always "the most dysfunctional" of the developed democracies, sometimes "spectacularly so." The evidence, writes Gregory Paul, thus appears to "contradict the dictum that a society cannot enjoy good conditions unless most citizens ardently believe in a moral creator.

The 1973 Wisconsin Amish decision, by linking this fabled "goodness" to an overarching privilege of legal exceptionalism, opened the gates to a flood of abuse. States keen on protecting the sanctity of free exercise -- and feeling the pressure of a newly energized religion lobby, which saw opportunity in the Wisconsin decision -- now passed laws that astonished common sense. Washington State, for example, exempted Catholic priests from reporting child abuse, with the full understanding, never spoken, that priests were particularly privy to such knowledge. Some states made it prohibitively difficult to prosecute clergy, to the point that prosecutors in Springfield, Massachusetts, who uncovered evidence that a priest had murdered an altar boy, were unable to compel discovery for an investigation. At least 30 states, including Alabama, California, Florida, New Jersey, Ohio, Oregon and Vermont, passed laws freeing "faith-healer" parents from civil and criminal penalty if their children suffered or died from medical neglect. In 1998, Followers of Christ Church in Oregon allowed three infants to perish through faith's medicine, prompting an investigation that uncovered a sprawling cemetery of children on the church property. But prosecutors were impotent under the exemption laws, and even when the Oregon legislature sought to amend its original foolishness, the faith-healing lobby stepped in to crush the bill with the usual bludgeon in these matters: the law that applies to everyone else, the faith-healers said, violates a believer's right to choose God over the secular cure.

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