Religious nonprofits, plan now for tax-exemption battles over gay rights

In the history of government suppression of religion, the big players are incarnation, torture, or death; direct legal prohibition (which often leads to incarceration, torture, or death); and taxation, with taxation being the method authorities use when they want to pretend neutrality. Taxation is not an establishment question. It is a free-exercise question.

Free Exercise Clause jurisprudence is not as common because the idea that government may not burden exercise of religion didn’t get challenged often. There is a similar pattern in Second Amendment jurisprudence, and even the bulk of the Religion Clauses cases have come since the 1940s. These issues were just too obvious to litigate for our first 150 years. Sometimes it is the hidden law which we need to champion, because now Establishment Clause jurisprudence has a kind of legal gravity. Those who seek to control or suppress religion prefer its rationales, and its frequency provides more case law for the briefing attorneys to write into and the judicial clerks to analyze.

The free-exercise cases typically focus on individual rights and laws which burden particular religions. But the Supreme Court has not addressed the destructive burdens taxation could place on religious houses on the whole. Taxes of general applicability—income taxes, for instance—are not a destructive threat to religious individuals because, back to the analysis in McCullough, the individual has checks on government power in our federal and state constitutional structures. But like the federal bank in McCullough, religious institutions are vulnerable to ruinous taxation. An aggressive and broad tax regime could easily crush many houses of worship, effectively inhibiting individuals’ right to exercise their religion.