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To tax and destroy. by Adèle Keim, Legal Counsel of the Becket Fund for Religious Liberty

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by Adèle Keim, Legal Counsel of the Becket Fund for Religious Liberty

To tax and destroy. The Washington Post is running a fascinating series of essays on whether to roll back two centuries of history and impose state and federal taxes on religious organizations. This is not a new debate; in 1970 the ACLU and others challenged New York’s church property tax exemption and lost. The Supreme Court pointed out that “[f]ew concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary colonial times, than for the government to exercise at the very least this kind of benevolent neutrality [i.e., tax exemptions] toward churches … .” Walz v. Tax Comm’n of City of New York, 397 US 664, 666-67 (1970). In the latest round of this debate, constitutional law professor Rick Garnett weighs in:

Many of the recent calls to tax churches rest on the premise that churches owe at least some of their resources to political authorities — to governments — who can decide whether or not to collect and use those resources for their own purposes. … [But] [g]overnments do not refrain from taxing religious institutions merely because it is politically convenient or socially acceptable to support them. They do and should continue to refrain from taxing churches because their power over them is limited, because “church” and “state” are distinct and because religious freedom is fundamentally important.

On the “fundamental importance” of religious freedom, few have put it more eloquently than Justice Alito and Justice Kagan, writing in the 2012 Becket Fund case Hosanna-Tabor Lutheran Church v. EEOC:

Throughout our Nation’s history, religious bodies have been the preeminent example of private associations that have “act[ed] as critical buffers between the individual and the power of the State.” . . . [T]he autonomy of religious groups, both here in the United States and abroad, has often served as a shield against oppressive civil laws.

The African-American church under Jim Crow, the Catholic Church in Poland, and the Anglican Church in apartheid-driven South Africa are all witnesses to this truth about “critical buffers.” As the Supreme Court observed nearly two centuries ago, “the power to tax is the power to destroy.” When listening to those who call for an end to religious tax exemptions, we should think long and hard about why we enjoy the freedom we do today, and about what we will lose if we allow the state to turn its destructive power on the religious organizations that have so effectively opposed it in times of oppression.