ataxingmatter

Religious freedom, taxes, and corporatism--Part II

In Part I, I outlined some of the many ways in which the U.S. provides favorable treatment to religious institutions and/or their representatives, including income exclusions from the federal income tax for ministers that are unavailable to any other occupation.

In this Part II, I want to consider how the  corporatization of religion relates to increased politicization of religious fundamentalism in recent decades and the religious right's incessant push to influence public policies.  Then in Part III I will return to the uneasy juncture of religious freedom claims and taxation.

A caveat.  It is sometimes easy to mythologize the past, to see it in more favorable light than the present merely because of the filter of time that removes more garish problems.  Sometimes I think that is the way we see the role of religion in political life.  Certainly there is no rosy past where there was a perfect separation of church and state, where religious views were considered to be private matters not suitable fodder for public consumption. There appears to have always been an awareness, at least, about a candidate's values and religious beliefs, most of the time.  Certainly, most candidates--even those that we may suspect were not active members of a religion--have been willing and able to call on "God" to bless the country. 

Think about Abe Lincoln as described in this US News article (Dan Gilgoff, Abraham Lincoln's Religious Uncertainty, US News, Feb. 12, 2009). Though he grew up in a religious family and read the Bible (one of the few books the family had) and quoted from it liberally throughout his life, he never joined any church. It's not clear that he actually practiced a religion, though he probably would satisfy what we think of as "spiritual" these days. Early on, he was so clearly non-affiliated that he faced some faith-based attacks (some considered him an atheist as a youth).  But he started attending church services (still not joining) after his son died in 1850 and, in the last 15 years of his life, he often spoke of some concept of God, though what he thought that meant was clearly uncertain. 

Maybe a lot of what seemed to be the country's ease and less attention to the particular religious affiliation of political leaders prior to the more recent marked visibility of religion in political contests was because most candidates and officials were assumed to be some kind of Protestant Christian, with the particular variant not mattering too terribly much when all was said and done. 

Remember Kennedy's candidacy in 1960, and the real concern that his Catholicism might cost him the election.  The US was considered a predominantly protestant-Christian country, and there was considerable discussion in the media about whether Catholic politicians are bound to follow Catholic doctrine in making policy decisions.  Kennedy money likely played a role in quieting the concerns, as the smiling Jack (often with Jackie) was pictured on magazine covers on a routine basis throughout Jack Kennedy's political career.  See, e.g., Life cover featuring JFK, Jackie and Caroline (April 21, 1958); Life cover featuring JFK and Jackie (Aug. 24, 1959);  Life cover featuring JFK and Hubert Humphrey (Mar. 28, 1960); Look cover featuring Jackie Kennedy in October 1960; Look cover featuring JFK, Jackie and Caroline in February 1961.  Familiarity makes the boogie-man seem not so scary.  

But in addition to getting good PR, Kennedy openly addressed the concerns about separation of religion and state during the presidential campaign in his famous speech on his religion, convincing some who had expressed earlier doubts. What is particularly notable about that speech is his claim that it was how he viewed the country's future, and not his particular religion, that should be of interest to voters.  Also quite notable is his expression of what freedom of religion meant to him.

These [concerns outlined above] are the real issues which should decide this campaign. And they are not religious issues — for war and hunger and ignorance and despair know no religious barriers.

But because I am a Catholic, and no Catholic has ever been elected president, the real issues in this campaign have been obscured — perhaps deliberately, in some quarters less responsible than this. So it is apparently necessary for me to state once again not what kind of church I believe in — for that should be important only to me — but what kind of America I believe in.

I believe in an America where the separation of church and state is absolute, where no Catholic prelate would tell the president (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote; where no church or church school is granted any public funds or political preference; and where no man is denied public office merely because his religion differs from the president who might appoint him or the people who might elect him.

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.  Id.

What is interesting in this speech--one that was designed to address what was perceived as a political weakness-- is that  Kennedy considered himself to be expressing the predominant American view about separation of church and state, when he said: "no protestant minister would tell his parishioners for whom to vote";  "no church or church school [should be] granted public funds or political preferences" and "no religious body [should seek] to impose its will directly or indirectly upon the general populace or the public acts of its officials."  Id.  

The fact that Kennedy was elected suggested that the country had finally grown well beyond the colonizers' centuries'-old religious straitjacket where colonies killed or converted native populations in the name, e.g., of a state-led Church of England or Catholic Pope and the Civil War era's constant (and inconsistent) invocation of God as favoring North or South in the political and military strife. 

But beginning around the 1970s, dogmatic religious ideologues became stronger players in the country's political life.  That has included overt attempts to breach the wall of separation that Kennedy had endorsed, including trying to reinstate prayer in schools and city councils (note the current court case on a city council prayer practice); finding various ways to use public money to support private religious schools (through the use of vouchers); and fighting for exemptions from generally valid legislative enactments to allow religious institutions the ability to not comply with the law (including ability to discriminate against employees; ability to prevent employees from having access to the same health care services available to others; etc.).

The increased politicization of religion grew in the US with the corporatization of the religious message.  So-called Christian businesses expanded from a few small Bible and music stores to national corporate-driven mass-marketing of popular Christian recording stars, media empires, and merchandising empires.  The birth of the megachurches, often with their own suburban malls and church-run schools, created the kind of deep pockets that supported political campaigning in earnest, with leaflets and radio programs pushing "values" candidates.  See, e.g., Keilholz, The Megachurch Juggernaut (Mar. 2008).   Religous private and charter schools, and home schooling by fundamentalist religionists, insured that young children wouldn't be exposed to other ideas and could be brought up as fervent followers of the religous dogma.  

Pat Robertson's religio-poltical empire developed, with the 700 Club and the Christian Broadcasting Network.  Robertson's 1988 presidential run freely merged politics and religion (often expressed in terms of "values" campaigning).  Fundamentalist groups increasingly pushed for religious views to be expressed at schools, in the public square, in courtrooms, as controversies ignited over creationism and so-called intelligent design doctrines being taught instead of, or alongside, scientific theories of evolution, as schools and city councils (especially in the South) continued to allow  prayers (mostly Christian), and courtrooms displayed the Ten Commandments.

We started hearing the religious view that fundamentalists' religious freedom was violated when they--or businesses they owned or churches they were associated with--were "forced to conform" by not being able to mandate their views of values for all of society.   We started to get the claim that the country was practicing religious discrimination if it did not allow religious institutions- or even businesses owned by religious institutions or even businesses owned by religious individuals--to exercise purported entity religious freedom rights (or their managers/owners religious freedom rights) to practice in whatever way they wished, even if it meant that the organization's employees' (who weren't necessarily co-religionists with the managing religious institution or commercial enterprise's religious owner) could not have the same religious freedoms as other Americans.

Bill Clinton signed the Defense of Marriage Act (commonly called DOMA), an egregious piece of discrimination against gays and lesbians that was pushed for by fundamentalist Christian religious organizations.  California overturned its Supreme Court decision allowing gay marriage, in an initative funded by groups such as the Mormon Church.  George W. Bush instituted a "faith-based initiative", creating a government post intended to further the expansion of religious institutional involvement in government programming.  The vast majority of the religious recipients of federal monies to run prison programs and similar activities were Christian-protestant organizations.  Although not supposed to proselytize with the funding, proselytization has been a critical part of many of the programs.  

And Americans have been bombarded with religious dogma and slogans in the context of political grabs for attention.  So the endless claims that the US wages a "war on Christmas" when holiday songs replace religious carols in public school muscials or when Rudolf the red-nosed reindeer and Xmas trees are required to be placed alongside nativity scenes on the public square.  Google the term and you get 547 million results, including the silly new book listing Sarah Palin, failed half-term Alaska governor and religio-political Tea Party fave, as author.  

(See, e.g., David Edwards, Palin links 'zealot-like' atheists with 'war on Christmas' and slavery with government debt, The Raw Story, Nov. 11, 2013.  Please don't buy Palin's book.  You already know what it says.  And you already know the idea is wacky.  Fundamentalists purport to be spreading "freedom" by attempting to force everyone to live by their own "values" and rules.  After all, if you ask any atheist, you will be reminded that Rudolf and Xmas trees are just cartoonish manifestations of fundamentalist Christianity and no diversification of the holiday display at all.  And adding a Kwanza song to the roster of carols or Bach's rousing Hallelujah Chorus in a setting replete with red poinsettias, "Christmas" lights, and boughs of balsam fir is a minor diversification, at best.)

Mitt Romney and Barack Obama both faced questions about their particular religious faiths.  Romney, who would have been the first Mormon president, had to deal with the long history of concerns about Mormonism, from the massacres sanctioned by Brigham Young to the polygamy actively pushed by the church until it finally succombed to outside cultural and legal pressure to end it (though polygamy is still practiced by split-off sects).  Obama faced "guilt by association" attacks for the stridently expressed views of Rev. Wright, a prominent black minister of a church he attended in Chicago, and "guilt by reason of family" for being born into a racially mixed family that led to him spending part of his youth in a Muslim country around Muslim relatives.  See, e.g., this snopes.com piece setting out and then debunking the claims that Obama was Muslim.  The continuing attacks on President Obama related to "values" pushed by fundamentalists religionists in the TEa Party/ GOP coalition.

And all those megachurches with megamalls bringing in millions for ministers led to another entanglement of church and state, as government investigators needed to see whether in fact these were just religious scams leading to the private inurement of the purported ministers out of the church businesses.  

An investigation by the New York Times into megachurches and their off-shoot companies reported: “Business interests are as varied as basketball schools, aviation subsidiaries, investment partnerships, etc...” The branding of faith with those quaint, little symbols (in lieu of a pesky, troublesome cross) is representative of a shift into commercialism in the battle for Christian market share, now made manifest in evangelical-corporate empires. Says Business Week: “All this growth, plus the tithing many evangelicals encourage, is generating gushers of cash. A traditional U.S. church typically has fewer than 200 members and an annual budget of around $100,000. The average megachurch pulls in $4.8 million.” 

Megachurch and televangelist ministers gross enormous salaries. Much of the millions raked in are generated by books, iTunes, and DVDs. But how much is going back into the ministry, considering that, were it not for thousands of devoted followers, most of these [mega]ministers would reside in relative obscurity? According to the Washington Post the Senate Finance Committee has recently announced an investigation into at least six Word of Faith ministers. Megachurch pastors and televangelists alike—Joyce Meyer, Kenneth Copeland, and Benny Hinn among them—are subjects of a probe following reports of unrestrained spending on ministries and private estates. After allegations involving the purchase of “such amenities as private jets and Rolls-Royces” reported thePost, GOP Iowa senator Charles E. Grassley has “asked for credit card records, clothing and jewelry expenses, and any cosmetic surgery expenses” as part of the congressional query.  Id.(Juggernaut).

 The current state of affairs is that in spite of the long tradition in this country of religious freedom for individuals--made possible by the Constitutional provision but more broadly by the underlying concepts that the state should not support or fund religious activity and that religious institutions should not be involved in political affairs--it is now politically expedient for a candidate for major political office to publicly claim that s/he ascribes to Christianity.  Similarly,fundamentalist Christian religious organizations, in particular, demand increasingly broad exemptions from generally valid U.S. laws under the claim that such laws impinge on the (institutional) religious liberty.  And religious individuals even claim that their personal religious freedom should allow them to cause their commercial enterprises to discriminate against the religious freedoms of their enterprise's customers and/or employees.  And some courts are even falling for that wacky argument that allows a business owner's personal religious freedom to use the business to deny religious freedom to any number of customers and/or employees.  See D.C. Circuit Backs Faith-Based Challenge to Contraception Mandate (discussing Gilardi (D.C. Cir. Nov. 4, 2013) (religious belief of owner of business allows business to discriminate against employees, so health care law contraception mandate cannot be enforced)).  And the need for courts to consider these issues (because of the many suits filed by fundamentalists seeking to overturn generally valid laws as applicable to them) and for government entities to investigate religious enterprises (because of the expanding potential for violation of the rules for tax-exemption and tax exclusions)  amounts to an unfortunate entanglement of religious affairs with the state and the state with religious affairs, and the consequent unfairness of the combination of tax exemption with religious exemptions from generally valid laws.  More on that issue in Part III.

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Religious rights, taxes, and corporatism--whose rights are they? Part I

The United States has a tradition of separation of church and state that goes back to the founding discussions that concluded that it would be inappropriate to establish a state religion because individuals should be at liberty to believe or not believe.  Unlike England, for example, where the head of state is the head of the Church of England, with resulting deep entanglement of resources and politics.  Or Germany, for another example, where the state collects taxes on behalf of certain state-approved mainline religions from those religions' participating members. 

So the United States does not officially approve any religion, nor does it collect revenues on behalf of those religions, nor does it determine religious policy.  On the tax front, institutions organized for a religious purpose are eligible for 501(c)(3) status and hence exempt from the income tax.   Like other 501(c)(3) organizations, contributions to any church is deductible to contributors, and none of those churches are required to disclose their contributors.  

Yet in spite of this long tradition of separation of church and state, our tax code and many of our politicians, many religionists, and too many of our Supreme Court's interpretations of the constitutional right to religious freedom blur the line between church and state.  

Politicians tend to invoke their religious beliefs as the basis for their actions, something that should worry anyone who is firmly committed to church-state separation because of the implicit endorsement of theocracy that such statements imply.  See, e.g., Leonard, The end of page views and Michele Bachmann's Rapture, Salon.com (Oct. 9, 2013) (noting GOP Rep. Michele Bachmann's recent statements about the "rapture" in connection with the government shutdown); RaptureReady website (proclaiming that "Christians have a constitutional right...to demand that Christian values be reflected in American society" and urging Christians to "Vote Republican"); Kentucky School Prayer Petition (Kentucky chapter of American Family Association pushing for government-sponsored religion in public schools) and see Americans United, Prayer Panacea? Ky Group Says INsp8irational Messages in Public Schools will solve several ills (Aug. 2, 2013)

The federal income tax code provides considerable support to religions, mostly through the exemption for charitable enterprises under section 501(c)(3) and the deduction for charitable contributions to such enterprises under section 170, but also in other ways. 

• The difficulty of providing a clear definition of an organization organized for religious purposes necessary to qualify for 501(c)(3) status invites abuse.  We allow almost any organization to claim to be a religious institution and hence exempt from the income tax--apparently even if every member of the purported congregation is a part of the minister's extended family.  The case of Scientology --with its sci-fi origins and its payments for various levels of achievement in the church hierarchy raises considerable concerns about what "counts" as a religion and whether institutions can be created as religions with the purpose of achieving tax avoidance and perhaps even exemption from some otherwise generally applicable rules.
• Religious institutions granted 501(c)(3) status aren't supposed to use their status to promote particular political candidates, but nonetheless many do--in fact, a number of ministers of prominent Christian churches have engaged in overt challenges to the prohibition by preaching in favor of, or against, particular candidates from the pulpit and distributing political campaign materials, essentially daring the IRS to enforce the law.  Compare, e.g.,  The Raw Story, Dolan, IRS faces lawsuit for failing to enforce church electioneering ban (Aug. 20, 2013) (discussing Freedom From Religion Foundation lawsuit against IRS regarding churches defying electioneering ban) with Godfather Politics, 1400 Pastors Defy IRS Trheat of Tax-Exempt Revocation (Oct 8, 2012) (discussing the action from the perspective of religious activists).
• Religious institutions granted 501(c)(3) status (we'll call all these "churches" for simplicity's sake) are supposed to pay tax on certain business activities that they carry on that generate "unrelated business taxable income" (UBTI), but aren't required to pay taxes on business-like activities regularly carried on by the church that are considered directly related to achieving the church's exempt purposes. See IRS Publication 598.  A church could, for example, run a restaurant in which it claims to provide job-training to homeless or unemployed people and avoid tax on any income generated by the restaurant business (which can be substantial) or conduct a gift shop on the premises and avoid any tax on the provits, so long as the items sold are related to the church's mission--and that will generally include all kinds of things such as religious texts, religious icons, artwork depicting the church building or similar imagery, greeting cards with religious text and imagery, games with religious imagery, etc. This is a significant tax-expenditure subsidy to religious institutions.  Even if that kind of tax-subsidized competition with regular commercial enterprises doesn't strike the reader as problematic, surely the potential for abuse is a problem.  Megachurches may build the equivalent of amusement parks and shopping malls with multiple types of busineses generating substantial revenues and competing with taxable enterprises in the region (Brentwood Baptist Church in Houston Texas was the first to house a McDonald's franchise on its property), yet perhaps avoid the unrelated business income tax on the revenues because they claim that their employees are being provided training for future jobs in an religion-soaked atmosphere that is considered part of the church's religious purpose, even though most employees are long-term employees and few homeless or poverty-stricken individuals are involved.   Most churches that operate media companies or franchises of commercial businesses likely do so through for-profit subsidiaries, but the potential is certainly there for abuse.
• The tax code (in section 107) provides privileged income tax treatment for church ministers:  housing or rental allowances (including the fair market rental value of furnishings, utilities, garage, repairs and other expenses directly relating to providing a home, as long as the total doesn't exceed reasonable pay for services) are excluded from the ministers' gross incomes for income tax purposes.  See IRS Publication 517; Tax Topic 417.   Rev. Rul. 63-156 even extended that exclusion to retired ministers.  To be a minister for tax purposes, a person must be ordained; administer church sacraments; treated as a religious leader; conduct worship services and have management responsibilities.  Note that a rather large group at a single church might well satisfy these requirements.
• Clergy can opt out of Social Security, if the minister is conscientiously opposed to such benefits (or opposed on the basis of religious principles).  See Form 4361.

 

Part II of this series will discuss the intrusion of corporatism into the church-state separation doctrine.

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The House, dominated by Tea Party/GOP politicians (or those fearful of their impact on upcoming primaries) passed a bill that attempted to tie the continuing operations of the government to compliance with Tea Party ideas about getting rid of the health reform legislation duly enacted four years ago.  See Weisman, House Bill Links Health Care Law and Budget Plan, New York Times (Sept. 20, 2013). Ted Cruz has now run his non-filibuster filibuster in the Senate, and then voted against his own "principled" filibuster position (presumably out of a quite justifiable fear that he would be shown for the fool he is as the only one voting in support of his "principles", since the Senate vote was unanimously on the other side). Ted Cruz Filibuster, NY Daily News (Sept. 27, 2013).

Remember, these are the same Tea Partiers who cried "Get Government Hands Off My Medicare," so one can't expect to see much rational debate about facts and ideas, especially on health care.  The fact that Obamacare is based on a Republican, business-centered idea is lost on the Tea Partiers, who seem to simply hate anything associated with Obama and Democrats.  Similarly, the fact that the reforms for the first time ensure that people who have pre-existing conditions can find insurance to help pay for catastrophic health costs at reasonable rates doesn't seem to penetrate the Tea Party conscience.

The Tea Party and its amenable GOP politicians, however, apparently aren't done trying to use whatever tool however destructive to get their way on health care. Having a sustainable economy is not even on their agenda.  After not succeeding in repealing the health care reform law that at least offers some Americans a chance for needed health coverage (including those with pre-existing conditions and those whose employers offer no plans and who cannot afford the typical premiums for non-group plans), the Tea Party/GOP coalition is using the threat (and likely reality) of a devastating government shutdown unless it gets its way on a matter that the American people as a whole have soundly rejected.  It is ready to push the country off the fiscal cliff all over again. So after the Senate voted cloture to consider the House bill and then passed a clean funding bill to get us through at least a few more months, the House GOP (with the Tea Party reactionaries in charge) again voted on Saturday to add amendments intended to destroy Obamacare to the funding bill (a one-year delay  plus a repeal of the medical device tax, one of the measures intended to cut health care costs and pay for needed reforms).  

The message is simple.  The GOP is attempting to hold hostage the entire federal government, including at least 800,000 federal employees who will be furloughed but who need their paychecks to live, and many towns and cities across the country that depend on their federal government agencies and employees for their own livelihoods.  The Tea Party/GOP coalition has demonstrated that it doesn't care about the government, the long-term harm to the country, or the suffering of individuals caused by these actions.  The Tea Party/GOP coalition is willing to keep going its selfish way, like a petulant child determined not to let anybody have anything at all unless he gets his way.

And even then, it apparently intends to continue to wreak havoc, with the threat of causing the US government to default on its debt for the first time ever, using the silly comparison of the federal government to a family operating on a fixed budget as its equivalent of P.T. Barnum's fictitious but real-seeming mermaid to scam its "Tea Party" members.

While we need to make judicious choices about how and what we spend on, we shouldn't make those decisions based on a single-minded and short-sighted goal of cutting tax revenues and not increasing the federal debt limit.  We are an enormously rich country.  We could work miracles of ending poverty, repairing infrastructure, funding basic research, and creating educational opportunity if only we had the will to do so.  And doing those things would create jobs and hope for the under-and un-emplolyed.  This is because the federal government is not a family operating on fixed wages.  It can print money.  It can also raise taxes.  We are one of the lowest-taxed countries in the OECD, down at the bottom of advanced countries with the likes of Turkey and Mexico.  We have allowed corporations (and their mostly very rich shareholders) to avoid taxes, through legislation and through sharp-witted corporate tax attorneys, to the point where they are only paying a pittance of their enormous profits to the government.  We have allowed our tax brackets to become fossilized at the upper range at extraordinarily low levels of income, when the top earners get so many millions that they pittance that even the top rate brings in is just a gnat's bite for the rich.  

These facts scream for recognition that the Tea Party goals are not only damaging in the process of government-hostage-taking being used to try to reach them, but highly unfair and irresponsible in their likely impact of accelerating the increasing inequality in this country--inequality that means the rich are getting rich while the poor and middle class are losing ground. Thus, the Tea Party/GOP coalition is pushing forward in what amounts to class warfare on behalf of wealthy Tea Party funders like the Koch Brothers and their corporate empire and the "silver-spoon" crowd like Mitt Romney who think that they got where they are through their "merit" (ignoring the many advantages of networks and educational opportunities that helped them "make it" in the status-and-power-based world of crony capitalism).

Charles Reid at Huffington Post  concluded that Cruz was a huckster primarily intent on self-promotion appealing to a Tea Party/Republican base that invites itself to be huckstered.  Here's his description:

[A] good half of the Tea Party is pure, old-fashioned American hokum. There are the conspiracy theorists selling their tales of devious plots by the Federal Reserve. And the gold dealers who spin elaborate yarns of out-of-control inflation which the government keeps secret. And there are the Second Amendment fanatics warning ominously about plots to disarm law-abiding American constitutionalists. There are even the patent-medicine folks. Newsmax, a principal Tea Party news organ, is filled daily with claims about cures for everything from diabetes to Alzheimer's. Charles J. Reid, P.T. Barnum, Joe McCarthy, and the Rise of Ted Cruz, HuffingtonPost (Sept 27, 2013).

But Cruz also draws on what Richard Hofstadter called the "paranoid style" of American politics, says Reid.

This mode of thinking is darkly conspiratorial. The world is sharply divided -- "us" against "them." And those who stand against the heroic defenders of justice and the American way are always secretly scheming to run not just the country but the entire world.  

***

[T]o enter today's GOP base is to cross the border from reality into Glenn-Beckistan. There are the young-earth creationists who see the whole of empirical science as a diabolical plot to conceal divine creation. There are the global warming skeptics, found even in the pages of the formerly great Wall Street Journal. And then there are the folks who come out of the woodwork at conservative workshops and rallies: The ones who want to abolish the IRS. Those who wish to dismantle whole government agencies. Those who believe Social Security is irretrievably insolvent, an accusation first made by Alf Landon in 1936. Even the next generation of segregationists who once thrilled to Wallace and Goldwater.

Charles J. Reid, P.T. Barnum, Joe McCarthy, and the Rise of Ted Cruz, HuffingtonPost (Sept 27, 2013).

This is what the U.S. Congress is reduced to--paranoid hucksterism parading as compassion for the people.  A minority of flim-flam artists huckstering for attention that will, they think, win them reelection and please their paranoid-prone base of Tea Party/GOP constituents--the group who thinks their religious freedom is being oppressed when they can't repress everybody else's religious rights; who thinks a conspiracy to undermine them exists when saner thinking attempts to impose some kind of reasonable restrictions on the gun mayhem that is killing this country's children and youth and elderly in what we once thought were relegated to movie depictions of Old West shoot-em-outs; and who combines this paranoid conspiracy-thinking with anarchic libertarianism to conclude that "taxation is theft" and "government is the problem" even when these majority-Republican rural constituencies from Alaska to Mississippi depend on government employment and other federal dollars for their very livelihoods.  See In Republican States, More Government Jobs, New York Times (Sept. 27, 2013).

There's the rub.  The inability of the Tea Party base to listen, to consider facts, to accept the importance of community and the important role of taxes in maintaining the institutions that make community possible through collective action.  It makes me think of George Orwell's 1984, as depicted in the movie with John Hurt and Richard Burton --a population that has taught itself not to think with home-schooling and religious indoctrination, reinforced by political demogogues who retain power and perks by figuratively beating the proletarian to a nonthinking mass that resents any attempt to act collectively for the greater good of the people. 

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The New York Times ran an interesting piece by Kim Messick on the Tea Party's psyche yesterday: Messick, The Tea Party's Paranoid Aesthetic, New York Times (Aug. 10, 2013).  It's worth trying to understand this political group's understanding of itself, since it " is a political movement ... that tries to shape the decisions of political actors — voters,legislators, pundits — into maximum coherence with its own agenda."  Id.  Its agenda is much influenced by the corporate funding that supports it but there is clearly something that holds the group together.  Messick says that they so identify their own ideas and values with the country that they see any divergence from those values and ideas as literally "unAmerican" and any evidence that the country supports things they do not support as evidence of a vast conspiracy causing the undoing of the true America.

In the case of the Tea Party, the content, though mostly political, is often religiously inflected. (A 2011 study ranked the predictors of Tea Party affiliation. The strongest was being a Republican. The second strongest? Believing that religion should play a larger role in politics.) There are invocations of God and His justice, historical interpretations (of the Constitution, say, or some program or proposal), evaluations of candidates for  office, and policy recommendations. (“Affordable Care Act bad! Tax and spending cuts good!”) These elements are then assembled in various ways to communicate the message an advocate finds appropriate for a given audience or occasion. I want to argue that we can discern in these messages a kind of master narrative, a collection of meanings that expresses the Tea Party’s sense of American history and of its own place within that history. It is this “story line,” I think, that explains the powerful appeal of the Tea Party movement to so many of its adherents, as well as its endorsement of a uniquely intransigent approach to the conduct of political affairs.

The key, says Messick, is Columbia historian Richard Hofstadter's description of paranoia in American politics (originally set forward in a 1963 essay):

The central image is that of a vast and sinister conspiracy, a gigantic and yet subtle machinery of influence set in motion to undermine and destroy a way of life. One may object that there are conspiratorial acts in history, and there is nothing paranoid about taking note of them. This is true… The distinguishing thing about the paranoid style is not that its exponents see conspiracies or plots here and there in history, but that they regard a ‘vast’ or ‘gigantic’ conspiracy as the motive force in historical events. History is a conspiracy, set in motion by demonic forces of almost transcendent power, and what is felt to be needed to defeat it is… an all-out crusade. The paranoid spokesman sees the fate of this conspiracy in apocalyptic terms— he traffics in the birth and death of whole worlds, whole political orders, whole systems of human values.  Id.

So Messick surmises that the intransigent, destructive tendency of the Tea Party to fight "to the death" against any policy or idea that it disagrees with stems from this paranoid identification of its own values as the only true American values, and any divergence from those values as a betrayal engendered by conspiratorial Others whose efforts to destroy the 'real' America must be stopped at all costs.

Tormented by difference, unable or unwilling to abide the fluidity of American identity, some persons anchor it in the racial, ideological, or ethnic features of their own community. This community then becomes “normative” for the nation as a whole; any threat to the former, any challenge to its prestige or authority, is automatically a threat to the latter.

***

The Tea Party’s paranoid aesthetic conveys this narcissistic view of itself and its role in our politics and history. ... This is the message paranoid narcissism ceaselessly delivers to its devotees. “The Others are irreligious, unproductive, licentious, treacherous. You are the rock on which this nation was built and you are the foundation on which it will rise again. You.  It’s all about you.”

***

[W]hen our identity is at risk — as it always is for the paranoid narcissist — there can be no room for compromise. The very suggestion is absurd: it amounts to the claim that we should accept being only partly ourselves. For the Tea Party, intransigence is another name for self-preservation.

If Messick is correct, we can count on this group to place itself and its own values above all else, to be willing to destroy in order to avoid having any bit of its view of the correct American way being undone. 

On tax issues, the Tea Party's ideas seem to be sharply influenced by the assumptions of personal decisionmaking and market "freedom" espoused by Chicago School economists.  Because Tea Party adherents define "freedom" in a unique way that disregards at least a century of developing understanding of the role of government in supporting the freedom of individuals to live a decent life, their views  on taxes tend to be anarcho-libertarian in nature--they see taxation itself as "theft by government" rather than the reasonable contribution of each citizen to the furtherance of a civilized society that supports all members and ensures that the basic institutions for a decent life are available to all.  This is perhaps the most threatening aspect of this religio-political group--their fervent ideological belief that they have the one view of the way America is supposed to work, and that progressive income taxation is anathema to that view.

It is not clear how one counters such religio-political fundamentalism.  Anyone who has ever tried to have a rational discussion of religious faith with a fundamentalist religious person knows that reason cannot penetrate such belief. Facts are generally irrelevant.  Any evidence that counters the exact specifications of the faith is treated as spurious.  The Tea Party adherents that I've met seem very similar.  It appears to be much more convenient for Tea Party adherents to close their minds to evidence than to question their ideologies or even to allow any adjustment to their "values" based on historical developments.

So the only defense appears to be making sure that this minority group never becomes a majority political group.  The filibuster in the Senate, in the context of Tea Party extremists, is a worrisome procedural tool that favors just such intransigent minorities.  We should get rid of it.  As for the House, perhaps the only answer is  engaged and energetic contesting of any election in which a Tea Party extremist has a chance.

 

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Gay Marriage Decisions-- As Expected, A Step Towards Full Civil Rights for Gays

 In 5-4 decisions in which Justice Kennedy, as considered likely, joined the Court's liberal wing to form a majority as against the Scalia-Thomas-Roberts-Alito rightwingers, the Supreme Court delivered its opinions in the two gay marriage cases before it this term.  They are-Hollingsworth v Perry (rejecting an appeal of the lower court decision overturning California's Proposition 8, on technical jurisdictional grounds), and US v. Windsor (affirming the unconstitutionality of Section 3 of DOMA (the federal "defense of marriage act" ) that forbids the federal government from treating as married spouses for any federal law purposes those gay couples that are legally wed in their state jurisdictions).

The Windsor case was on appeal from the Second Circuit, which applied heightened scrutiny to find unconstitutional DOMA's denial of the marital exemption to a same-sex surviving spouse of a marriage that took place in Canada and was recognized in New York where the couple lived at the time of the spouse's death. 

The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion. Slip op. at 14.

The jurisdictional issue in Windsor was not a hangup for the Court.  As I had indicated in the BNA Webinar on the two cases prior to the decision, the US retained a sufficient stake in the matter--relying on INS v. Chadha, the Court found that the government's refusal to pay the tax refund, even after the Justice Department's decision not to defend such cases,  provide an existing Article III "case or controversy" before the Second Circuit and before the Supreme Court. 

The judgment orders the United States to pay money that it would not disburse but for the court’s order. The Government of the United States has a valid legal argument that it is injured even if the Executive disagrees with §3 of DOMA, which results in Windsor’s liability for the tax.  Slip op. at 8. 

There was merely a prudential hurdle to overcome, and here prudence argued for a decision, given the extensive amici briefings on both sides, including the House-leadership organization's briefing adverse to the Executive.

BLAG’s sharp adversarial presentation of the issues satisfies the prudential concerns that otherwise might counsel against hearing an appeal from a decisionwith which the principal parties agree. Were this Court to hold that prudential rules require it to dismiss the case, and, in consequence, that the Court of Appeals erred infailing to dismiss it as well, extensive litigation would ensue. The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA’s sweep involving over 1,000 federal statutes and amyriad of federal regulations.

The constitutional holding in Windsor is a narrow reading of the equal protection afforded by the Fifth Amendment's extension to the states.  Writing for the Court and joined by Justices Kagan, Sotomayor, Breyer, and Ginsburg, Justice Kennedy recognized that states have historically been allowed to define marriage--subject to Congressional restraints as in Loving v. Virginia's rejection of miscegenation laws--and noted that DOMA intervened to take away a protected status provided by those states that had recognized gay marriage--this was both the Congressional purpose and the effect of the law.  Because it creates two-classes of marriages within a state that recognizes one class of marriage, and forces couples to treat their relationship one way for state purposes and another for federal purposes, it violates the most basic principles of equal protection.

Today twelve states and the District of Columbia recognize same-sex marriage.  This decision gives same-sex married couples in those states equal treatment under federal law with married couples. 

Here the State’s decision to give this class of persons the right to marry conferred upon them a dignityand status of immense import. When the State used its historic and essential authority to define the maritalrelation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protectionof the class in their own community . ... What the State of New York treats as alike the federal law deems unlike by a law designed to injurethe same class the State seeks to protect.

***

This status is a far-reaching legal acknowledgment of the intimate relationship between two people, arelationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historicalroots of the institution of marriage and its evolving understanding of the meaning of equality.

***

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality "must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot" justify disparate treatment of that group.

 ***

The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.This raises a most serious question under the Constitution’s Fifth Amendment.

***

Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound.

***

Though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause ofthe Fifth Amendment.

 ***

 This requiresthe Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. The liberty protected by the Fifth Amendment’s DueProcess Clause contains within it the prohibition against denying to any person the equal protection of the laws

But there is a huge problem looming because of the failure of many states to recognize same-sex marriages performed in other states even though they recognize all other marriages performed in those other states.  Section 2 of DOMA--which allows states to refuse to recognize sister-state marriages--in flagrant violation of the normal rules of comity between states--was not at stake here and thus its repeal remains for future cases. This means that there will be considerable uncertainty --and much bigotry and discrimination against gay couples for some time as those states that have enacted discriminatory constitutional or statutory provisions against gays continue to deny marriage rights to gay married couples when they move  into them, and perhaps prevent them from retaining custody of their children or being able to legally divorce their spouses or will estates to their spouses.  These problems will be resolved, at least for now, under each states "conflict of laws" provisions, with the overlay of the state's constitutional prohibitions, where existing, on recognition of same-sex marriages.  This will cause harmful suffering to gay couples, so one would expect that there will be litigation on this issue soon.  The Court's opinion regarding the many problems that would be created by extended litigation over the legality of DOMA section 3, across 1000 federal laws, shows that factor weighed heavily in its prudential decision to consider the constitutionality of Section 3.  Perhaps it failed to adequately consider what it would mean to fail to carry the point further to a repudiation of same-sex marriage bans under a full Equal Protection holding.  After all, the Court, citing Loving v. Virginia, acknowledged that

State laws defining and regulating marriage, of course, must respect the constitutional rights of persons.

The result is that gay marriage is recognized  in the 12 states and the District of Columbia that have official recognized gay marriage either through legislation or court action (and, under Hollingsworth v Perry, now also in California), and that couples married in those states can now file joint returns, inherit an estate from a spouse without paying any estate tax and otherwise enjoy the special privileges (or, in some cases, burdens) provided to married couples under federal tax law and all other federal laws.

Regretably, but as expected, the Court did not reach the question of whether state-law prohibitions of gay marriage violate the Equal Protection Clause.  This will await another day with a proper case challenging a state ban on same-sex marriage, perhaps after a number of states reverse their current constitutional amendments discriminating against gays by treating the privileges of marriage under state law as available only to a man-woman couple. Perhaps the varied views of the right-wing--a dissent by Chief Justice Roberts, a dissent by Justice Scalia in which Justice Thomas joined (and Roberts in Part I), and a dissent by Alito in which Justice Thomas joined in Parts II and III--augers well for a gradual withering away of the "traditionalist" (and religious fundamentalist) views supporting a same-sex marriage ban.

Some celebration is in order, as indeed took place across the country today, regarding this additional step toward erasing the kinds of bigotry that have been a stain on the country's belief in liberty for all since its inception.  See Joy, and Dismay, as the Supreme Court rules, New York Times (June 26, 2013) (slides).

But the country's religious right will undoubtedly try to minimize the freedoms for gay and lesbian citizens as much as possible in the course of the state-by-state battles to come over recognition of gay marriage.  The right claims that this is a matter of religious freedom, but it is in actuality a matter of religious imperialism--an attempt by conservative Christians to hoist their church's definition of marriage onto the laws of the land for everyone in the country, no matter their own religious persuasion or lack thereof.  The fundamentalist view that only men and women can marry should have no legal status.  Let those churches whose hierarchies accept that ideological position adopt that position as their church policy, but let them not succeed in forcing others to accept their  views about gay and lesbian citizens and what constitutes a family.

Ross Douthat's commentary in the Times discusses this religious issue.  See Religious Liberty and the Gay Marriage Endgame, New York Times blogs (June 26, 2013). Douthat supports the idea that these kinds of rights should be developed on a state-by-state basis, as a social experiment.  I must admit I find that approach disgusting.  If we were to say today that segregation or slavery or anti-semitism could be incorporated in state laws on a state-by-state basis to allow the dissenting minority who wanted (and still want, in a dismaying number of cases) to treat African Americans or Jews as inferior citizens without too much community disruption, no one would accept it.  Why is it that people who claim to be thinkers--like Ross Douthat and the four right-wing Justices of the Supreme Court--continue to act like treating gays and lesbians as inferior citizens with second-class privileges is okay?

Note that the idea, discussed by Douthat, that there is a "religious issue" and that churches will have to incorporate their schools differently to "protect" them is a result of the growing false understanding of the Constitution's guarantee of religious freedom, fostered by politicians too willing to kow-tow to religious hierarchies and a Supreme Court overladen with a strongly religious majority who have long failed to understand the Constitutional framework for what it is--a protection for individual practitioners, not for religious institutions.  Neither churches nor their businesses nor their organizational charities (i.e., church-run schools, hospitals and similar subsidiary institutions) merit religious protection from anti-discrimination laws intended to protect individual rights to religious freedom: by definition, if the institution is given "freedom" to impose its ideologies on individuals, the individuals themselves have lost those freedoms.  These are individual rights, not institutional or corporate rights.  Thus, to protect the individual's right to freedom of religion, a religious institution should not be permitted to force an institutional employee--other than perhaps its management personnel who have supervisory rights to hire and fire and penalize employees and are the carriers of the religious dogma "torch"-- to practice the dogma of the institution on birth control, gay marriage, divorce, or any other aspect of the religious dogma.  

I thus find the statement of Ben Domenech, editor of The Transom, who is quoted in Douthat's commentary, quite offensive--he says that states will need to "alter their laws accordingly to protect religious organizations, businesses, mosques and churches, and prevent community clashes as best possible."  The Constitution doesn't protect "religious businesses" and cannot put avoiding community clashes above protecting the religious liberties (or nonreligious views) of all Americans.

Someday the Court will correct its error on this point, but one suspects that will be far in the future.

Too bad that the Supreme Court voted the other way on the Voting Rights Act--a decision that essentially disregarded both Congress's role under the Civil War amendments and Congress's 2006 analysis of the need for continued oversight, especially in the states currently within the coverage.  Note that the law provided for states to be brought within the coverage or exempted from the coverage, so the Roberts Court's right-wing activist decision was an unjustified effort to find a way to favor Southern (and Republican) states.  Scalia's dissent in the Windsor case--in which he argues that the Court owed respect to the legislative branch (see exceprt, below) stands in sharp contrast to the willingness of the Court to override Congress's renewal of the Voting Rights Act upon the basis of an extensive record of hearings and evidence as to continuing discrimination against minority voters in those Southern states, where poll places are moved to inconvenient locales and ID forms are required that may be difficult for minorities to obtain.  In Windsor, Scalia claims that "democratically adopted legislation" like DOMA should be upheld by the Court, but in the Voting Rights Act case the majority ran roughshod over such legislation in a situation where Congress's role is mandated by the amendment itself.

We have no power to decide this case. And even if we did, we have no power under theConstitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.  J. Scalia dissent in Windsor, Slip Op. at 1.

 While I disagree with Scalia's view expressed in his dissent that there was no standing in Windsor, I do think he makes some very good counterarguments to the arguments in Alito's dissenting opinion about jurisdiction, which would recognize the BLAG (purportedly a bipartisan house legislative group, but in the Windsor case, only 3 Republican leaders of the House authorizing a "defense" of Congress's actions in enacting DOMA) as a rightful adversary at the Court in a case such as Windsor.  Scalia accurately sinks daggers into Alito's trumped up theories of Congressional prerogative to litigate against the Executive whenever it doesn't like the way the Executive carries out Congressional duties.

 

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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.