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

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

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

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

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

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

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

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

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

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

Under Bill Clinton’s enthusiastic touch, similar acts of ecclesiastic establishment reached a breakneck pace in the federal branch. Marci A. Hamilton, author of the recently published God vs. the Gavel and a professor at Cardozo Law School, writes that Clinton, more than any other president before him, “fostered an accumulation of religious power, and a union of church and state power, that threaten[ed] to undermine the Madisonian separation-of-power principle at the heart of the Constitution.” Bankruptcy laws were skewed to churches, the Church Arson Prevention Act skewed arson laws, the Parsonage Tax Exemption widened tax exemptions, and the International Religious Freedom Act made federal establishment a global affair. Against the Clinton crush of religiosity, his successor’s “faith-based initiatives” only appear as a furtherance of Democratic policy.

Perhaps most disturbing to proponents of disestablishment like Professor Hamilton – who, it should be noted, prays “every day,” being a devout Presbyterian –

was the passage in 1993 of the Religious Freedom Restoration Act, drafted as the organized response of the religion lobby to the Supreme Court’s “peyote case” of 1990. The peyote case determined, rather reasonably, that religious motivation is no defense to illegal conduct, such as the consumption of hallucinogens (in this case by American Indian peyote cults). The interpretation pushed by the religion lobby was that the peyote case spelled the beginning of the end of religious liberty – because believers would now have to obey the same law as non-believers.

The Religious Freedom Restoration Act restored the allegedly lost religious freedom by expanding the license of religion to in fact break the law. Under the RFRA, believers could challenge the jurisdiction and application of any and all neutrally applicable laws (meaning the statutes that apply to everyone, such as the injunctions against homicide, rape, embezzlement, car theft, etc.). Prosecutors would not be free to apply those neutral laws to believers unless it showed the law was passed for a “compelling interest” with regard to the believer—that it was the most narrowly tailored law possible for the believer. The loopholes under RFRA were such that religious prisoners demanded the right to engage in sex acts before female prison guards; a father on a New England commune demanded exemption from child support because his money went to the benefit of religion on the commune. “Totally nuts,” says Hamilton, who on behalf of the tiny city of Boerne, Texas, challenged the RFRA to the Supreme Court, and got portions of the law thrown out in 1997 as unconstitutional. The religion lobby in answer birthed an ugly cousin of RFRA, the Religious Land Use and Institutionalized Persons Act of 2000, which preserves an important feature of the RFRA. Under the RLUIPA, land use and zoning laws in the nation can be challenged literally because God may be directing the challenge, ie God wants that parking lot re-zoned for a 40-foot residential tower etc. The legislation pivotally places the burden of attorneys’ fees in RLUIPA cases on local governments trying to enforce an otherwise equitable law.

There is in all of this a kind of perverse self-satisfaction and narcissism that appears to have jettisoned some pretty basic Judeo-Christian values. “In effect,” writes Marci Hamilton in God vs. the Gavel, “religious entities have lobbied for the right to hurt others without consequences. That is a severe attack on the rule of law, which is supposed to guarantee that no one becomes a rule unto himself.” Havens for economic and social and political outlawry, whether they are hurting township tax rolls or colluding in child rape and murder or illegally abetting the election of a criminal president (who makes war and spies on citizens as a rule unto himself), the ecclesiastical corporations, whose existence Madison so lamented, today are helping to fashion a social order that fetishizes religiosity but also has with no regrets unmoored religion from that strange old notion of loving thy neighbor. Prof. Hamilton calls this achievement a triumph of “possessive individualism” – the secret sidecar to “ownership society” – and a “triumph of the urge to power, in Nietzche’s sense.”

Moreover, that the ecclesiastical corporations have secured and expanded power by the cynical application of law and a creative sympathy in the judiciary indicates their effectiveness indeed as corporate players. It should be remembered that modern American corporations, conceived by lawyers in the Gilded Age as the grotesque offspring of the 14th Amendment, transformed themselves into “legal persons” by similar courtroom machinations. So the corporation gained the rights of a person – among them, due process and equal treatment, the right to sue, hold property, borrow money – but none of the obligations. “Did you ever expect a corporation to have a conscience,” Edward Thurlow, the 18th century lord chancellor of England, remarked, “when it has no soul to be damned, and no body to be kicked?” The history of the business corporation has in fact been the systematic lobbying for the removal of all regulatory constraints to its operations – in effect, as Professor Hamilton writes, “lobbying for the right to hurt others without consequences.”

The greatest corporate successes in this effort, the founding moments in corporate wealth and power, rest in the 50 years of U.S. Supreme Court decisions that enshrined the deranged definition of “legal person” and gave to capital and property the rights of men while relieving the men behind the money of their liabilities. Similarly, the church looks for the fundaments of its own kind of legal exceptionalism in the three pivotal decades of the Burger Court. If corporations are mere business machines that the courts have mistaken for a person, then churches are mere corporations that the courts have mistaken for godliness. Still, corporations must pay their taxes, however they try not to, and, in the end, they must answer to the marketplace. The corporate church answers apparently only to God.

Sic itur ad astra.

 

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