ataxingmatter

Nothing like a ministerial exception to get rich quick in the good ole US of A

I've long opposed the concept of religious freedom that suggests that ministers shouldn't have to pay social security taxes to the government on their incomes or get their housing provided without treating the fair rental value as income or that religious institutions should be allowed to discriminate against their employees in ways that other institutions can't.  I'm obviously not in sync with Congress--which provides the "parsonage exclusion" and the Social Security exemption or with the Supreme Court --which found a ministerial exception allowing religious institutions to discriminate against employees as long as they had some kind of ministerial function (very broadly defined, apparently) or with many religionists in this country who think all this is hunky dory, as revealed by the hoopla raised by the right about the idea of employees of religious institutions being entitled to receive health care related to procreation.  But ultimately the way the tax system subsidizes religion and the way our constitutional system has been interpreted to overtly cater to religion is a problem: it results in government affirmatively favoring religious over nonreligious ideas.  I'm not sure that a nation that truly believes in religious freedom--for every religion and for no religion--could allow religious workers to be exempt from some taxes or religious institutions to violate its general laws.  

So when I see news stories about the lavish lifestyles of families that run religious institutions like their own kingdoms (with inherited titles), I am even more convinced that we need to crack down harder on tax exempt organizations that pay for lavish lifestyles for their principals.  The New York Times had an article on Saturday about the Crouch family, founders of the so-called "prosperity gospel" and Trinity Broadcasting Network and owners of twin sets of luxury homes  paid for by their devoted followers and occupied tax free in their "ministerial" capacity and recipients of a luxury lifestyle provided to them as managers of a tax exempt organization.  See Erik Eckholm, Family Battle Offers Glimpse Inside a Lavish TV Ministry, New York Times (May 4, 2012), at A1. 

The cynic in me thinks they are ripping off not only their followers--prosperity for the gospel preachers and getting along as usual for the rest--but also the rest of us taxpayers in this great country of ours.

The family controls the network and just fired the granddaughter and her husband.  Brittany Koper says the network has been engaged in all kinds of financial improprieties, and that it was a memo she wrote calling attention to the financial improprieties which got her fired, which of course the church founders deny. Koper has two pending lawsuits, and she accuses the family of stealing millions to buy real estate and cars, violating the IRS rules on tax-exempt organization "excess compensation" and maybe state and federal rules on false bookkeeping and self-dealing.  The family pays itself with multiple luxury homes and vacation homes, corporate jets, and "thousand-dollar dinners with fine wines", all out of tax-exempt monies.  The granddaughter is pretty convincing:  "My job as finance director was to find ways to label extravagant personal spending as ministry expenses."  Id.  Since the governing board for TBN includes only members of the family, there's an assured lack of checks and balances.

And guess what--granddaughter's job as finance director made her a "minister" able to benefit from the payroll tax exemption and the parsonage provision.  The TBN network pulled another stunt that demonstrates why the exemption for ministers from taxation makes no sense at all--it merely labelled scores of employees as "ministers"--chauffers, sound engineers, performers at the entertainment park (Holy Land Experience") and others all avoind paying social security on their salaries and are able to live in rent-free "parsonages".  The suit by Koper alleges that the network provided "parsonages" for the founders' son Matthew and wife Laurie and separate houses for their adult sons, remodeled (at company expense) to include a putting green and indoor basketball court.

The Crouches claim "almost no personal assets" but essentially enjoy the benefit of all the assets of the tax-exempt organization and the luxurious lifestyle that affords them.  While Janet Crouch remodeled the religious theme park, she lived in a suite of rooms in a luxury hotel in Orlando--renting a room for herself and one for two Maltese dogs and her clothes for two years, according to a former employee and the Crouch's granddaughter.  The lawsuit claims that the tax exempt organization also paid for luxury dining for the couple and their son, running tabs of $300,000 apiece a year.

A representative of the company denies some of the stories and justifies others as part of the success of the ministry.  The company representative also claimed that the granddaughter stole company money and was fired for embezzling, though there are no criminal charges outstanding.  Her father Paul was also fired from the company.

Not sure what the answer is, folks, but we should recognize that the kind of subsidy we are now providing to various religious institutions is likely far from what the founders' envisioned and has little to do with guaranteeing religious freedom to individuals.   Somehow we need to limit the scam of people making millions through tax exempt organizations, in the name of religion, and avoiding paying tax on the "parsonage allowance" just because somebody lalso enjoying that label agrees to lavel them a minister.  Congress should just eliminate the Code provision providing the parsonage allowance and the Social Security exemption and that would solve a great deal of the mischief.  Either through legislation or regulation we should require that every tax exempt organization have a majority of board members who are genuinely independent--neither members of the family of founders nor employees nor "ministers"  but capable of standing up to power.  For religious organizations in particular, because of the increased sensitivity to the idea of government audits and oversight, the rule should be that no "minister" of the church can serve on the board and the board must be elected by the members of the religious organization at large.  As for the rest, it would take a constitutional overhaul to remove the "ministerial exemption" recognized by the Supreme Court recently for institutional discrimination against employees that are labeled by it "ministers". 

Rick Santorum's tax policies and more--imposing his moralizing choices on all

Rick Santorum is a man who seems to hold sincerely held religious beliefs.  The problem is that he thinks everybody that matters holds (or should hold) the same beliefs that he does, or at least should be forced to live in a country that operates by the principles that follow from those beliefs.

Santorum has accused Obama of operating from a "phony theology" (one not based on the Bible).  That suggests that Santorum thinks a president is supposed to impose a biblical theology on all presidential work--and that Santorum intends to impose his own "correct" theology if he were to be elected president.  See Santorum Questions Education System and Criticizes Obama, New York Times (Feb. 18, 2012).   That approach fits with Santorum's idiosyncratic views on how religion is supposed to influence public life:  Santorum has made a point of claiming that he does not hold with the founding principle of separation of church and state--a principle enunciated by Thomas Jefferson, ascribed to by Abraham Lincoln, and articulated splendidly by John F. Kennedy.  See Joan Walsh, Santorum's JFK Story Makes Me Want to Throw Up, Salon.com (Feb. 26, 2012). 

This issue is worth pointing out clearly.  Here's what Santorum said

 I don’t believe in an America where the separation of church and state is absolute.  The idea that the church can have no influence or no involvement in the operation of the state is absolutely antithetical to the objectives and vision of our country. (emphasis added)

And here's what the statesman Kennedy said when confronting the concerns of the Southern Baptist Convention that a Catholic in office would implement the laws under the dictate of the Pontiff in Rome rather than the U.S. Constitution.

I believe in an America that is officially neither Catholic, Protestant nor Jewish; where no public official either requests or accepts instructions on public policy from the Pope, the National Council of Churches or any other ecclesiastical source; where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials; and where religious liberty is so indivisible that an act against one church is treated as an act against all.

What does Santorum's theology look like and how will it influence public policy under a Santorum presidency?  Santorum apparently thinks public schools are a bad idea (he's likened them to "factories") and that all children should be able to be home schooled (and indoctrinated in a parent's religious preferences) at taxpayer cost.  See Santorum Questions Education System and Criticizes Obama, New York Times (Feb. 18, 2012); Santorum Exposed: why is Santorum spending your tax dollars on his family (noting that Santorum took $100,000 from Pennsylvania for an online program for his home-schooled kids, even though he resided in Virginia at the time). He thinks kids get "weird socialization" in public schools.  Rick Santorum, Kids Get Weird Socialization in Schools, Huffington Post (Feb. 22, 2012).  We already have weakened public schools by permitting taxpayer funds to pay for "nonreligious" items at religious private schools, such as text books and transportation.  Since money is fungible, that payment merely subsidizes more religious expenditure on religious education and deprives children in public schools of much needed resources to deal with the huge lingering infrastructure problems of our public school systems.  We don't need to go even further in that direction by moving religion into public schools wholesale, or moving even more children into ideological indoctrination through taxpayer-funded schooling. 

Santorum's theology is backward on women as well, seeming to think more women should be anchored in the kitchen with numerous progeny pulling on apron strings that signify the most satisfying role for women (in his book).  One worries how that would play out in a Santorum presidency that could cut off funding for disfavored activities through executive orders, and his public statements bode ill for how it would pan out.  Santorum apparently thinks the feminist revolution is bad, because it has made it harder for women to choose to stay at home.  See Santorum faces questions on women in the work force, New York Times (Feb. 12, 2012).  In contradistinction to the importance of individuals' rights under the First Amendment, he seems to think that every religious institution should be able to impose its beliefs on its workers (no matter what their beliefs are):  under Santorum, a woman working in any capacity for the Catholic Church could not be covered in her health care plan provided by her employer for contraception.  See Social Issues Rule Day in Candidates Race, AP (Febl 12, 2012) (noting Santorum's comment that the contraception rule forces churches to do something against their basic (institutional) tenets).   He thinks voters should be aware of his religious faith and should consider that in determining whether to vote for him.  And his religious faith doesn't believe in birth control, so he wants to be sure that the tax code provides a huge tax exemption for each child in multi-child families--but not a refundable tax credit that would be of real use to a poor working mother with one child to care for.  See Santorum letter, Raise the exemption for children, not the child tax credit, Wall St. J (Feb. 25, 2012) (claiming that he wants an $11,100 personal exemption per child for working families but is against a child tax credit that would be refundable, so is "innocent" of "expanding welfare").  

Santorum's theology doesn't seem to find it problematic when a government system systematically redistributes resources upwards to the benefit of the wealthy.  His tax plan would result in zero taxation on unearned income, the primary type of income of the wealthy.  Welfare for the rich is apparently fine and dandy under Rick Santorum's version of morality. 

Comparisons of charitable giving among presidential candidates

[Hat Tip to Tax Prof]

Len Burman, now a professor at Syracuse but still affiliated with the Tax Policy Center, wrote a blurb for Forbes on Stingy Rich People, Santorum-Gingrich Edition, Forbes (Feb. 20, 2012), which was a followup to Caron's comparison of presidential contender giving based on "Romney and Obama vie for title of most charitable; Santorum gave least to charity," Washington Post (Feb. 16, 2012). 

Romney gave about 13.8% of his income to charity in 2010, and Obama gave about 14.2% of his in 2010.  The Gingrichs (with about $3.1 million in income) gave only about 2.6% of theirs in 2010 and the Santorums (with about $0.9 million in income), only about 1.8% of theirs in 2010.

Burman professes his surprise at Gingrich and Santorum's relative stinginess, given their avowed commitment to religion (and their open claim to religious merit) and the Christian doctrine of tithing 10% of one's income to the church.

But Burman finds that the relative stinginess of the two candidates is about on a par with members of their respective income classes.  The group of people making between half a million and a million give an average 2.6% in 2009 and the group making between $2 and $5 million gave about 3.2% on average.  Conclusion--Santorum and Gingrich are "in the middle of the pack" in terms of generosity for people of their income level.

Personally, I've always thought candidates should keep their religious faith  to themselves.  I don't think we have any business at all taking into consideration whether a presidential candidate is a Mormon, a Baptist, a Muslim or an atheist.  But if they do make a point of their religious faith and present it as a worthy attribute qualifying them for the presidency, then it is rather revealing when those who openly "brag" about their religiosity  don't comply with the most fundamental concept of sharing and  generosity in the bible, the tithing requirement.

Heatlh Care Reform and Religious Exemption--Whose Freedom Are We Talking About, Anyway?

 The Treasury, IRS, Department of Health and Human Services, and Department of Labor finalized regs Firday that exempt certain religious employers from covering contraceptive care under the Patient Protection and Affordable Care Act.    T.D. 9578 (available here now to subscibers to BNA) will be published Feb. 15 in the Federal Register and become effective April 16.

Seems like the Catholic Church wants to impose its own views on these matters of religious theology on all of the people its employees.  And they try to use the idea of religious and individual freedom to allow them to impose their views on people who may or may not share them (whether or not they are Catholic themselves).

Under Supreme Court precedent, religious Native Americans can be told they can smoke peyote because it is a regulated substance and the laws regulating that substance are "laws of general application" so they aren't discriminating towards Native Americans.  See the Wikipedia entry for Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), excerpted below.

Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), is a United States Supreme Court case that determined that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual. Although states have the power to accommodate otherwise illegal acts done in pursuit of religious beliefs, they are not required to do so.

The Smith result was replace with a "strict scrutiny" review in the Religious Freedom Restoration Act, described here on Wikipedia.

Yet here are the Catholic Bishops claiming that even the direct accommodation provided by the Obama administration--that the church does not have to pay for contraceptive coverage, but the insurers must provide that to the church's employees who want it--isn't enough. See e.g., Newcomb, Contraceptive Compromise Doesn't Please Bishops, ABC News (Feb. 11, 2012).  And Mitch McConnell in the Senate is threatening to try to take down the contraception mandate as "just another example of government meddling."  See Flaherty, Top Republican Wants Vote on birth control mandate, AP (Feb. 12, 2012)--the flap over contraception provided the GOP what seemed like an opportune chance to pile on against the health reform act yet again: "And this is what happens when the government tries to take over health care and tries to interfere with your religious beliefs."

But individual freedom and interference with religious beliefs is one of those things that looks different depending on whose perspective you take.

The Obama administration compromise means the religious institutions don't have to provide that which they disagree with.  There is minimal or no cost to insurance companies from providing the contraceptive coverage separately to employees of such religious institutions.  In fact, it is likely that contraceptive coverage is much cheaper in the aggregate to women, government and insurance companies than having more (unwanted) pregnancies. Yet the Bishops think the Church should be exempted from the health care provision requirements --and their employees shouldn't have this option to get covered outside the church's plan--just because the church doesn't agree with it.

In part, they are relying on that statutory protection enacted after Smith--the Religious Freedom Restoration Act, under which the federal government is subject to strict scrutiny regarding laws that impose on religious freedom.

But the question here, of course, is whose freedom are we talking about? 

The freedom of individuals of various religious backgrounds to work and receive the kind of coverage that they know they need and that is compatible with their own religion? or the freedom of the institution of the church to impose its religious dogma (and the consequences thereof) on all of its employees, no matter their religious faith?  Whenever the two are not consistent--and they will not be for any woman, whether Catholic or not, who wants to use contraception and in fact believes that her faith permits her to do so or even that it requires her to do so to be able to provide appropriately for her family--then the position supporting greater religious AND individual freedom is the one that requires contraception to be covered, one way or another.

Yes, the Obama compromise is a little gimmicky--sort of like the Islamic finance arrangements which justify interest by camoflaging it in ways that make it look like some traditional accepted payments (leases, rents, etc.).  But if that helps make it possible to do what needs to be done in this modern age--provide opportunities for borrowing funds to people that need to borrow to start businesses, or opportunities for decent contraceptive health care for people who work for a church that doesn't believe in it--then by all means, use the quasi-gimmicks in order to achieve the better public good.  But don't cave to the shrill cries of the mandate amounting to religious persecution.  It's nothing of the sort.

PS the same-sex marriage issue is another one where the Catholic Church shouldn't be able to impose its views on its workers who are not teaching theology.  There, however, the Supreme Court (with a significant number of Catholic justices who might be expected to empathize with the church on these dogma questions) recently decided a case that supports a "ministerial exception" to laws that otherwise protect employees from various kinds of invidious discrimination in employment for employees of religious organizations.   Personally, I see this as a black mark against religious freedom for individuals, and another example of corporatism at work, this time in support of institutionalized views being imposed on individuals that make up the institution.   See, e.g., Music director's marriage leads to his firing from St. Gabriel Catholic Church (Feb. 12, 2012) (gay music director--who had worked in the church while having an openly gay relationship for years--suddenly fired for taking advantage of New York's new law permitting same-sex couples to marry, even though his state (South Carolina) and his employer (the Catholic Church) would not recognize the New York marriage anymore than it had recognized his earlier common law marriage).   Much like the fundamentalist protestants who accuse the government of discriminating against Christians when the government appropriately uses "happy holidays" rather than "Merry Christmas" to wish its employees well, these religious groups are seeking to have the government impose restrictions on workers that take away worker rights in the name of religious freedom for some, but with the result of limited freedoms for others.

Newt Gingrich's Vision of a religious, brutally capitalistic, and corporatist America

Newt Gingrich wrote an op-ed in the Washington Post April 23, 2010, How American became a 'secular-socialist machine', in which he purported to rebut Norman Ornstein's defense of the Obama Administration against the radical right's smears asserting that the administration is a "secular-socialist machine."  The Gingrich op-ed defense of the smear is yet another smear.  First, he conflates historically powerful political "machines" like Tammany Hall or perhaps Chicago back in its one-man rule, where a single man could order people throughout governmental hierarchies and expect them to follow his will, with with astute political negotiations by claiming that the US Congress's passage of a stimulus bill in within a few weeks of Obama assuming the presidency represented machine politics.  Yet without that stimulus package, weak as it was because of the Republican effort to convert most stimulus to more tax cuts for big corporations, the US economy would likely be stagnated, with no jobs and no growth prospects.  The package was passed after considerable debate and public discussion of the pros and cons-- a transparency that would cause a political machine to shudder its last gasp.  It was a majority decision in Congress and bore the stamp of the Congressional negotiations in the shape of the details.  His use of the term "machine" is like the freshwater economists' use of the term "efficient markets"--the winning out of pipe dream theories over the reality on the ground.

Second, he uses the term "socialism" to mean, apparently, "any government action I don't like."  In a socialist economy, the government owns permanently and runs for the public good the primary means of production.  Communist China before the opening in the latter part of the 20th century was run as a socialist economy (and as a political dictatorship), with "state and town enterprises" that provided jobs, homes and permanent care to the workers.  Socialist policies, of course, can co-exist with capitalism.  Both European and American capitalist economies typically include some number of socialistic measures to dampen the harsh realities and strong failure potential of "pure" capitalism, where the "dog eat dog" greed over everything mechanism will otherwise bring brutal consequences for large majorities of ordinary folk who don't start wit sufficient capital (human, physical and financial) to have a significant stake in the race for profits.  We have thus tempered our economic arrangements with social justice mechanisms from the beginning, when churches and communities gathered together to help the most vulnerable, and we have done so since the beginning of the 20th century through our tax policies (progressive taxation that purports to take more from those that have the most in order to have enough to achieve state goals without sacrificing ordinary folk at the bottom of the income distriution), through our corporate policies (anti-trust mechanisms that break up large corporations that gain too much power) and through our human capital policies (Social Security, Medicare, Medicaid, arts funding, education funding, disease control and research, etc.). 

Gingrich plays on people's ignorance about our own history, economic systems generally, and the importance to the US of our tempered capitalism when he mislabels as socialisms the government's establishment of temporary mechanisms to deal with the fact of the government's temporary ownership of private enterprise as a result of a bailout necessitated by the Reagan revolution's actions to deregulate/privatize/militarize/and cut taxes or the reinstatement of the pre-Reagan status of aid to students through direct government loan programs administered by colleges rather than through guaranteed indirect loan programs administered by colleges but through banks that receive a substantial subsidy direct from the government (and were another place where banks resorted to financial shenanigans to keep getting higher interest rate reimbursement from the government than they were entitled to).  The irony is that the bank subsidies under the indirect loan program have much more socialistic elements in them than the direct loan program, since the government is directly paying banks essentially for doing nothing but acting as conduits for government money.  Gingrich also labels as socialist government regulation of industry pollutants like carbon output.  This response of government to a strong majority's preference for protection of the population in ways that individuals clearly cannot protect themselves is the epitome of democracy in action to achieve public good, even at the cost of some limitations on private enterprise.    Gingrich argues with absurdities--"if government regulates every aspect of our use of power, it has regulated every aspect of our lives.  What is that if not socialism?"  Bunk.  The government doesn't pretend to regulate every aspect of our use of power--it doesn't tell you whether you can turn a light on or a fan or an air conditioner.  It does regulate appliances that use power (not enough) and it does regulate the production of power (not enough--witness the Gull Oil Macondo Well Disaster).  Environmental protection is the essence of government responsibility to its people, the same as military defense.That is action in the political system, that happens to have consequences for the economic system, in that no enterprise can do whatever it wants to make money if it hurts everybody. the entire polity.

Gingrich's third term "secular" describes the kind of government this country has had from the beginning.  While there has been a strong religious element in American life, we have recognized the need to prevent  a merger or even a perceived merger of religion and government, the need to maintain a separation between the state and religion.  That vision developed in the states--particularly in Massachusetts and Virginia, and then the Founders incorporated it into the First Amendment to the Constitution in which they strove to protect the kinds of individual liberties that they had fought for in the Revolutionary War.  That protection is not just against establishing a "a national religion", as Gingrich suggests, but to protect the people--whether religious or non-religious--from any entanglement between church and state.  Gingrich uses the term "secular" as though it were an epitaph; I can only shudder to think of living in the "religious" state that he would apparently prefer.

Torture--It's the Economy, Stupid.....

Naked Capitalism ran a "guest post" by "George Washington" yesterday on Cheney's role in furthering the Bush Administration's torture agenda: Cheney Admits to Being a War Criminal, Naked Capitalism (Feb. 16, 2010).  

Washington notes that the mainstream media's approach to Cheney--letting him argue for torture without ever challenging him with tough questions--is "no different than interviewing Charles Manson and letting him argue--without challenge--that murder is a great thing." And we are all guilty.  "By failing to demand that torture stop and those who ordered it--like Cheney--be held to account, Americans are complicit in war crimes, just like the Germans who failed to stand up to Hitler were complicit in crimes against humanity." 

The preface argues that "torture is bad for the economy", with a link to Washington's own blog post on January 9 noting that "The Military-Industrial Complex is Ruining the Economy." 

The impact of militarization is huge, and the long-term wars we are engaged in currently, and their high costs, surely impact our economy.   Surely the military-industrial complex and its demands on the tax system (and its potential threats to our democratic institutions) are viable topics at ataxingmatter, as part of the discussion of tax policy and institutional sustainability.  The military-industrial complex gobbles up huge portions of the tax revenues that our system brings in.  At the same time, our income tax provisions are extraordinarily vulnerable to the intensive lobbying of members of the military-industrial complex--from provision of multiple tax breaks to soldiers in the military front line to enormous subsidies for the natural resources extractive industries that feed barrels of oil into the pipeline of energy inefficient ships, planes, drones, trucks, and other energy gobblers in the military supply network. Taxing and spending go hand in hand--even when their relationship has been warped by the kinds of tax cuts passed in the Bush Administration that built in huge shortfalls of revenues in order to benefit the owner/manager class while at the same time treating war expenditures (and the future expenditures for replacement equipment and care of wounded necessitated by today's war) as after-thoughts that could be added as supplemental budget items that are slipped through the legislative process without the kind of in-depth discussion and understanding that is required.  As a result, we have followed a "make war now, figure out how to pay later" mentality.   Put together with the huge, multiple Bush tax cuts--especially those for big corporations and their owners/managers--and the enormous financial commitment that was required to bailout the financial system because of its one-way-casino mentality (gamble the house's money and if you lose, the house makes it up to you; if you win, you eat it all yourself and leave no crumbs for the house), we are left with an economic system that requires deep and thoughtful intervention to right itself--tax reforms to undo at least a portion of the disastrous Bush policies, financial institution reforms to break up the Big Banks and return them to quasi-public utility status where the public interest counters their private greed in the types of decisions they can make, and military reforms  that include long-term thinking about the relationship between military decisions and the sustainability of democracy are at the very top of the list .

So how does torture--and the question of holding Bush administration officials accountable for using torture and advocating its use as a cornerstone of their approach to terrorism--relate to the economic/tax issues connected with the military-industrial complex?   The following offers a sketch of considerations that support considering torture a tool of war that has particularly bad connotations in connection with the over-militarization of the economy.

First, torture was, under Bush, a key factor of war policy.  It was openly advocated for by Cheney, and lawyers like Yoo in the administration pushed the boundaries (I would argue even "went beyond" the boundaries) of ethical requirements and competent representation to create some semblance of a legal foundation supporting the policy (and protecting the state actors who were embarking on it).  Torture was thus demonstrably a key factor in the way the Bush Adminsitration fought its wars.  

Second, torture as a practice weakens democratic institutions, since it can only be furthered through methods that run counter to our constitutional protections for due process--it demands that the executive powers be permitted to treat harshly those that are considered "other" without ordinary processes for first determining guilt before meting out punishment.  In the Bush case, there was an affirmative decision to torture stemming from the undemocratic (and unsupported in our constitutional history) notion of a president with unilateral powers to do anything domestically or internationally, even actions contrary to domestic law and international treaties, under the presidential powers to conduct wars that Congress has declared--the absurdly undemocratic, fascist, militaristic, and anti-constitutional concept of a "unitary executive" pushed by the neo-cons to support the accretion of incredible powers to Bush because of his role as "commander in chief" of the armed forces. 

Third, the use of torture invites a cycle of non-diplomatic and non-democratic responses.  In a world context where even Democrats and Republicans have lost the art of reasonable compromise in pursuit of the greater good, it is not surprising that cultures that are as deeply opposed in values as (a) open democracies that strive for equal rights for women and men and freedom from religion as well as freedom of religion and (b) male-dominated theocracies where religion is imposed will find it hard to find avenues for working together for the common good.  Add bias and assumptions about violence to the mix, add torture of those who perhaps are most prone to violent jihad to the mix, and the mixture becomes explose.  As noted, torture represents a decision to deal brutally with those who are considered "other" than the governed people but for whom there have been no public processes to determine guilt or innocence.   That lack of due process and lack of transparency breeds contempt for the government that embraces it--especially by those who bear the brunt of it.  The widely disseminated photos of torture in the Abu Ghrab prison firmly fixed the image of "America as a torturing state" for those who were already prone to view the nation as biased against Islam and as a brutal state pursuing capitalism at any expense.  Just as news of the Nazi concentration camps spread from one group of potential targets to another, the news of American use of torture and the intentionally anti-Islamic techniques (menstruating women, dogs, nakedness) must clearly have spread from one fervent Islamic group to another, reinforcing any hate and buttressing militant responses.  Torture, in other words, breeds contempt, and contempt breeds war in a vicious cycle of brutal torture-hate-brutal response. 

Thus, when torture and war crimes are furthered by  top officials, the military economy is benefited and both democratic institutions and ordinary Americans are the losers.  As one commentator on the Naked Capitalism post noted:

The only people who are intelligent, informed, AND support torture are the ones who WANT the US to have a lot of enemies, because they are in the pay of the military industrial complex. ...They want a forever war. ...[I]n the end, the neocons and the jihadis need each other for [their] own self-interests.  Unfortunately, it's the rest of us that end up paying. -Comment by "Skepticus Maximus"

So adding to the human rights and international treaty and domestic law arguments about holding the Bush Administration accountable is this economic/democratic institution argument .  People like Cheney who advocated torture and legal advocates like John Yoo who facilitated it ought to be be held responsible not only because their actions violated the Geneva Convention and  human rights agreements (we hanged Japanese prisoners for waterboarding) but because the advocacy and use of torture continue to threaten the foundations of the democratic institutions that we hold dear by underpinning an "above the law" military-industrial complex that is extraordinarily powerful and able to garner spending and tax provisions to its favor with apparent ease, with long-term deteriorative impact on the economy.

Sklar case decided by Ninth Circuit

The Ninth Circuit has decided Sklar v. Commissioner, No. 06-72961 (9th Cir. Dec. 12, 2008), involving the question of whether payments to an Orthodox Jewish day school for Michael and Marla Sklar's children in 1995 could be deducted as a charitable contribution. The answer is no.  The court affirmed the Tax Court's decision that this type of payment is for the educational benefit rather than a charitable contribution, as it has traditionally been treated in a long line of cases.  The court noted that the arguments made by the Sklar's were "virtually identical" to the arguments made in an earlier case that sought to use the Scientology closing agreement to claim similar rights, and came to the same conclusions it had come to earlier.

For background, see

105 TC No. 14 (2005) (the tax court case affirmed by the December 12 decision) 

282 F.3d 610 (9th Cir. 2002) (the Ninth Circuit's earlier decision regarding the Sklar's claim in respect of the 1994 returns and the IRS closing agreement with the Church of Scientology)

Legal archive on Church of Scientology's battle with the IRS.

Religion, Tax and Senator DeMint: abortion, Proposition 8, and the Visitor Center

I often commented here on my views of the importance of maintaining strict separation of Church and State.  I deplore the practice--now wholeheartedly endorsed, it seems, by mainstream media--of treating a politician's religious views as of critical importance to their ability to perform as adequate fiduciaries of the public interest.  Religion--whether type of or existence of or practice of--should, at least in my book, be private and mostly irrelevant to the public duties of any aspirant for office.  (I'll admit some exceptions, if the aspirant is a religious fanatic in a religion that burns witches at the stake, for example, or a religion that believes that all government officials must rule in the name of the religion, like the Taliban, etc.) 

I particularly dislike the practice of using government funds collected from taxpayers of every religious stripe (including none at all) to support religious organizations' projects--we shouldn't be giving tax money to "faith based" organizations for anything that smacks of furthering religious objectives in any way whatsoever.  (As I recall, something more than 85% of the "faith-based" monies go to fundamentalist Christian groups, and much of the activities sponsored by those monies are proselytizing, and even if they aren't directly proselytizing, they free up other monies the church has collected tax free for use in proselytizing and they create venues that lend themselves to distribution of information that facilitates proselytizing.)

And I strongly object to the recent pattern of intervention of organized religious groups in political campaigns.  Let religious groups do what they will (as long as they aren't violating laws), including forbidding church marriages between gays or abortions by church members.  But don't let them use their tax-exempt status to force their views on others.  A prime example is the Catholic Church's sometimes explicitly stated support of Republican candidates based on its anti-abortion views--getting a tax exemption from the State, and using that tax exemption to try to get people elected who will likely not enforce, or even try to overturn, the State's law permitting women to have abortions is not okay.

As far as that goes, I also object to the kind of campaigning done when the Mormon Church used of its vast resources to campaign in favor of "proposition 8" in California to ban gay marriages--letting a church get a tax exemption that permits it to acquire vast resources with no corresponding obligation to the State, and then use those vast resources in political advocacy to propagate misleading advertisements (your young children will be forced to endure lessons on the virtues of gay marriage) to get laws passed intended to subject non-Mormons to the Mormon Church's views of appropriate marriage, is an outrage.  The federal tax law on this may be on the Mormon Church's side, since the Code makes a distinction between intervention in political campaigns on behalf of particular candidates and political advocacy or "lobbying", which is merely subject to a substantiality cap.  See John Colombo's discussion of this issue on the NonProfit Tax Prof blog.  I personally think it would be good practice to find that $5 million spent on a single issue for a single campaign is per se "substantial" and beyond what should be permitted to any religious organization.

So what about politicians who constantly harp on the need for government to propagandize about the role of religion in the Nation's growth?  Salon's Alex Koppelman notes Senator DeMint's "outrage" at the new federal government visitor center's portrayal of American history without "appropriately honor[ing] our religious heritage that has been critical to America’s success."  See War Room: DeMint Protest's Capital Visitor Center's 'Left-leaning' Ways, Salon, Dec. 4, 2008.  DeMint finds it objectionable that the Visitor Center's "most prominent display proclaims faith not in God, but in government."   Clearly, something weird is going on here.  The Visitor Center is the first step for Americans who are explicitly embarking on a tour of their government facilities--it is a portal to our government.  Should it not be an informative portal, that talks about government positively and shows the citizens who are the backbone of the government how the government works?  DeMint's objections come across as misguided from the get-go, as my father used to say.  This is an anti-government, pro-religious theme that the fundamentalist Christian right in this country has been pushing for a long time (well, since Reagan) in a strange coalition between the wealthy (who are the ones that ultimately benefit from it all), the neo-con fascists and the right-wing fundamentalist Church-as-Staters.

But is it a correct perspective on history?  I don't think so.  The country was founded with basic views about the separation of tax dollars from church dollars,  State action from Church action, by many who held views that might be described as spiritual but would very seldom be described as fundamentalist Christian or even as overtly religious in today's terms. 

Some of the comments on the Salon entry are exceptionally good.  One commenter notes the role of the First Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof... (cont,)

Wow. It simply could not be stated any clearer than that. There is no gray area, no ambiguity or anything to parse over in it. DeMint is a moron if he thinks otherwise.

It says: You leave my religion alone, I will leave yours alone, including your right to not believe a thing. Leading off with these words quite clearly says no matter how anyone believes, for all questions concerning how this country will be run, we will refer solely to the document we are now creating.  Id.

The Visitor Center could, of course, accommodate DeMint's desire for more mention of the role of religion in the Founding Father's thinking--but it is likely that the accommodation I would support wouldn't please DeMint and his religious fundamentalist supporters at all!   A commenter, for example, suggests very apt quotations from two Thomases who played extraordinarily important roles in the intellectual foundations of the country--Paine and Jefferson. 

“The truth is, that the greatest enemies of the doctrine of Jesus are those, calling themselves the expositors of them, who have perverted them to the structure of a system of fancy absolutely incomprehensible, and without any foundation in his genuine words. And the day will come when the mystical generation of Jesus, by the Supreme Being as his father, in the womb of a virgin, will be classed with the fable of the generation of Minerva in the brain of Jupiter. But we may hope that the dawn of reason and freedom of thought in these United States will do away with this artificial scaffolding and restore to us the primitive and genuine doctrines of this most venerated Reformer of human errors.” - Thomas Jefferson, Letter to John Adams, 1824

"All national institutions of churches, whether Jewish, Christian or Turkish, appear to me no other than human inventions, set up to terrify and enslave mankind, and monopolize power and profit.” - Thomas Paine, The Age of Reason

The commenter goes on to note another religious contribution to the country's underpinnings that might be mentioned--the establishment of the Southern Baptist Convention in 1845 with the avowed purpose of defending white supremacy and slavery. Id.

Or it could even mention a number of other important religious milestones in the history of the Nation.  Those would include the Quaker support for abolition (a positive), but they would also include the Mormon massacre of non-Mormons (Mountain Meadows Massacre, 1857), the earlier murder of Mormon founder Joseph Smith by non-Mormons, the Salem Witch Trials, or the recent Catholic coverup of pedophile priests.  See this comment.

Pulpit Defiance of Law Banning Tax Exempts from Campaigning

Yesterday (Sunday, September 28) various ministers around the country, organized by a tax-exempt organization called Alliance Defense Fund, joined together to defy the law.   See Slevin, 33 Pastors Flout Tax Law with Political Sermons, Washington Post, Sept. 29, 2008; Sataline et al, Partisan Sunday Sermons Test IRS Tax Laws, Wall St. Journal, Sept. 29, 2008. The law says that tax-exempt organizations cannot actively campaign on behalf of a political candidate, and that includes a ban on endorsing particular political candidates from the pulpit.  The ministers, and the group promoting their lawbreaking act, claim they have free speech rights to say whatever they want from the pulpit.  See Alliance Defense Fund's description of the "freedom Sunday" project on its website.

By the way, the Post article above notes that Rev. Johnson condemned voting for Barack Obama as evidence of "severe moral schizophrenia" but didn't explicitly endorse John McCain.  How's that for trying to have your pie and eat it, too?  If you condemn one of two candidates from the pulpit, that is effectively endorsement of the other, and should be treated as such.  Fran Pulto, of Calvary Chapel in Philadelphia, went further, saying that John McCain is the only candidate a Christian can vote for.  See Wall Street Journal article, above.  (Hasn't it ever seemed incongruous to those in the pews for these sermons that the person their pastor is so fervently supporting in the name of Christiandom has taken positions that amount to trigger-happy warmongering--singing "bomb, bomb Iran" and arguing for huge defense increases to be protected from economic woes while freezing all of the many ways that the government lends a helping hand to the poor and down-and-out?) 

Many other ministers, and groups opposed to that defiance of the law, note that churches can endorse candidates if they choose to forego the benefit of tax exemption (and it is a HUGE benefit for churches that run mini-villages on their complex with claims that all of the various shopping opportunities are in furtherance of their ministries and thus not subject to UBIT -- the tax on unrelative business income).  If they want taxpayers to subsidize their ministries (which we do now through tax exemption and deductions for charitable contributions), they have to accept taxpayers' desire not to support a tax exemption for churches that will intervene in elections  on behalf of candidates.  See, e.g., the NY Times editorial prior to the pulpit endorsements: I'm Your Paster, and I Approved This Ad, NY Times, Sept. 26, 2008;  Robert King, Indianapolis Pastor to Take Part in Pulpit Freedom Sunday, IndyStar.com, Sept. 28, 2008 (noting that Indianapolis Baptist Temple gave up its tax exemption years ago and thus has every right to say whatever it wants from the pulpit).  David Cobb, a First Christian Church pastor in Lynchburg, Virginia, noted that endorsing candidates also "undermines a church's ability to speak prophetically."  Ray Reed, Pastors Weighing Whether to Endorse Candidates or Not, Lynchburg News & Advance, Sept. 20, 2008.

The IRS and the courts should apply the law.  Churches whose pastors openly violated the ban on campaign intervention should lose their tax exemption.  If the Supreme Court, dominated now by appointees of right-wing presidents, gets this case, it should not take an activist position in support of the majority's right-wing ideologies but rather it should make a clear statement about tax exemption:  Tax exemption is a grant of Congress;  if you defy the terms, you lose the exemption.  It has nothing to do with free speech--except to the extent that ordinary American taxpayers shouldn't be forced to pay for intervention in campaigns in favor of particular candidates.  Paying for speech you don't agree with is bad, but paying for groups to campaign for candidates you oppose is terrible.

Alliance Defense Fund Stages Political Campaign Intervention

Our fellow blogger, David Brennan, reports on NonProfit Law Prof Blog about the staged political campaign intervention by churches sponsored by the Alliance Defense Fund, at this link.

Alliance Defense Fund describes its purpose as "to aggressively defend religious liberty."  What the organization means by that is described in "Defending Our First Liberty", a pdf pamphlet available on the site. It notes that the organization was founded by "35 evangelical Christian ministers" to "defend the right of people of faith to hear and speak the Truth of the Gospel," including "religious liberty, the sanctity of human life, marriage, and the traditional family."

Now, folks, if you are like me and have always thought that the "First Liberty" (i.e., the First Amendment to the Constitution) was intended to ensure that government doesn't attempt to limit the sources of information and ability to fraternize with others that is fundamental to a free and democratic society, you probably find some disjuncture between the "defending liberty" concept and the emphasis on the "culture war" icons proclaiming anti-abortion, anti-gay marriage, and pro-status quo concepts of the family (no matter how unrealistic those nuclear family ideals may be).  The people that espouse those ideas are pretty kean on limiting the rights of people that disagree with them on those issues, by claiming, for instance, that gay marriages somehow taint straight marriages. 

But that's not what I want to focus on here.  I simply don't see how a constitutional "right" to tax-exemption in support of political campaign intervention can accord with freedom from the establishment of a government-sponsored religion.  Churches, of course, like anyone else, can become as involved as they wish in political campaigns.  They just can't do it on your and my dimes--the foregone taxpayer monies that support churches come from Jews and liberal Christians and Muslims and atheists, none of which should be required to support an evangelical agenda to acquire more say in government.   In addition, I find the religious litmus tests for high office increasingly pressed by the same right-wing evangelicals offensive.  Thus, I hope that churches have the good sense to avoid directly violating the law about campaign interventions.  I align with the Americans United for the Separation of Church and State, an organization that describes itself as a "religious liberty watchdog group" that emphasizes the importance of separation of church and state to the preservation of religious liberty.  The organization has a "don't politicize the pulpit" project and a new website, announced here, urging ministers not to participate in an effort to break down the church/state barrier through political campaigning.

David Brennan, in the post mentioned above on Nonprofit Law Prof Blog, disagrees, suggesting that a good result of this action will be a Supreme Court case clarifying the issue.