Richard Garnett: Churches Should Endorse Politicians

The question of church involvement in political campaigns resurfaces on a regular basis. Right now, churches are bound by the same rules as all other non-profits: they can't use their tax-free money to engage in partisan political campaigning. Some people want to change this and give churches special privileges in the political arena.

Richard W. Garnett writes in USA Today:

For starters, and with all due respect to Jefferson, the First Amendment does not constrain — in fact, it protects — “political” preaching and faith-filled activism.

This is true. Anyone remotely familiar with the issue knows that the ban on using tax-free funds for political campaigns is not required by the First Amendment — it’s a statutory creation of the tax code. Of course, being exempt from taxes is also not required by the First Amendment. Getting exemptions from taxes, but then not being allowed to use them for political campaigns, is a trade off which churches voluntarily accept. If they don’t like the latter, they are under no obligation to submit to it — but they also don’t get the former.

Richard W. Garnett doesn’t seem think that churches should be forced to pay this price:

It is the regulation of the churches’ expression, and not their expression itself, that should raise constitutional red flags. Religious institutions are not above the law, but a government that respects the separation of church and state should be extremely wary of telling churches and religious believers whether they are being appropriately “religious” or excessively “political” or partisan. Churches and congregants, not bureaucrats and courts, must define the perimeter of religion’s challenges. It should not be for the state to label as electioneering, endorsement, or lobbying what a religious community considers evangelism, worship or witness.

Garnett has a point about there being problems when the government starts defining what is political or religious, but he really doesn’t have a case because he isn’t being entirely forthright in what he says. The government doesn’t come down on churches when their preaching is “excessively political (or, perhaps, as insufficiently religious).” The government only comes down on churches when their preaching is on behalf or against particular candidates in a campaign.

Churches can preach against gay marriage and endorse bans on gay marriage, but they can’t endorse candidates who promise to ban gay marriage. In other words, churches can speak about the issues, but they can’t speak about the candidates — either directly or with a wink and a nod. Richard W. Garnett is a “Lilly Endowment associate professor of law at the University of Notre Dame,” so he should be expected to know all this and to represent the issue fairly and accurately to readers. What a pity that he didn’t.

Imagine if the restrictions on political campaigning were lifted from religious institutions. First, they would have a special privilege denied to all other non-profit organizations. Groups like the United Way will continue to be forced to stay out of politics in order to retain their tax exemptions; churches, though, would not be bound by such restrictions. Religious groups already have special advantages when it comes to obtaining tax exemptions, but this special privilege when it comes to using the tax exempt funding would be outrageous.

The advantages don’t end there, however. Currently, political organizations are not tax exempt — so money you donate to political activists is taxed (you pay taxes on it and they pay taxes on it). If churches become involved in political campaigns, the money you donate to them won’t be taxed — you can claim an exemption on your tax return and they won’t have to pay taxes on it as income. This will put them at an advantage over traditional political organizations because their money will go farther — and that’s added to their other advantages, like the ability to wield religious authority over members, their mailing lists, and getting people to visit on a weekly basis.

Churches could become the nation’s primary religious brokers, with candidates being forced to kowtow to the dominant religious authorities before they can take their places as civil authorities. This will effectively place religious authority above political authority in the United States and that, in turn, is an effective way to cause America to become a type of theocracy where religious laws stand above civil laws. That’s incompatible with liberty or democracy.

It may not be unreasonable, then, to think that people who suggest that religious groups be allowed to get involved in partisan political campaigns without giving up their tax exempt status are in fact seeking greater Christian domination over American politics and restrictions on civil liberties as well as democracy for the benefit of a Christianist political agenda.

 

Quick Poll: Should churches be allowed to endorse specific political candidates?

1. Yes: anything else is an abridgement of their freedom of speech and religion.
2. Yes: but only if they also give up their tax exempt status.
3. No: churches should stay out of election campaigns, but they can talk about the issues.
4. I don't know / don't care.

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