Among the scams and deceptions hidden in the Republican “tax reform” bill at least one is of prime constitutional importance. The reformers, pushed by Donald Trump and led by the chairman of the House Ways and Means Committee, have a little Christmas present – one indeed clothed in holy rhetoric.
Its gist is to abolish the tax liability of moneys donated by purportedly religious persons and groups to political candidates. The target is a section of law promoted in the mid-1950s by Lyndon Johnson as majority leader of the Senate. This so-called “Johnson Amendment” is under attack from by another Texan with a radically different view of the Establishment Clause of the First Amendment, which provides that “Congress shall make no law respecting an establishment of religion.” Since it was written into the Constitution in 1791, judicial interpretation has – sometimes defensibly, sometimes not – bent its intent and spirit in unforeseen ways.
Perhaps the best way to illustrate the current Republican mischief is to think of a hypothetical example. Suppose that you live next door to the Rev. Dr. Bigot, who has $100,000 in church funds, or his own, to spend for TV advertising against your candidate for Congress. With the repeal of the Johnson Amendment, after 62 years of a defensible separation of religious purposes and civil office, Dr. Bigot’s contribution would enjoy tax exemption. Yours, lacking religious coloration, would not. Dr. Bigot has a trump card (no pun intended) – he boasts the cloth, the collar, and probably the stained-glass voice, of a religious denomination or affiliation. His political donations under the new dispensation would be tax-free. Imagine further that Dr. Bigot is a red-hot devotee of the notion that human personality begins at the moment of conception, hence that any abortion (even when prompted by rape) is a sin at any stage of pregnancy. Or perhaps he plans to donate his hundred grand to a charter school known as Christian Salvation Academy.
Patently discriminatory? Obviously. Yet this could be the predictable result – certainly the primary intent – of the proposed GOP fiddling with the Internal Revenue Code. Dr. Bigot adds insult to injury by defending his holy purpose with whiny sanctimony. What you view as a sectarian favor in the tax code he insists is a mere exercise of his religious liberty. His “charities,” when transparently political, should not be taxed. The First Amendment, he claims, affords him a right to finance his bigotry with your money.
His plea is typical of a lingering superstition about the Establishment Clause, so far forbidden by the Johnson Amendment, which Trump promised to “totally destroy.” If the GOP, with its majorities, manage to shout it into law your recourse may be to a federal bench now being busily packed with Trumpite judges; so best of luck!
But is Dr. Bigot right about the First Amendment? No, he is not; he is appealing to a historical fiction. Among the twists and turns in church-state relations since 1791 is the idea that the first clause of the First Amendment merely bans established churches. In fact, the “establishment” of religion as to which Congress was originally to make “no law” is a broad category. including any scheme of official subsidy of sectarian causes and institutions. As Justice Black used to say, “no law means no law,” but you can forget that.
How do we know the foregoing facts about the Establishment Clause? We know because it originated, along with Thomas Jefferson’s great Virginia Statute for Religious Freedom, in his collaboration with James Madison. Madison noticed that some earnest Virginia Baptists were being jailed, even in chains, for refusing to pay tax assessments in support of educational establishments offensive to their beliefs – indeed, regarded in some instances as blasphemous.
The hypothetical situation imagined above would be an explicit violation of the Establishment Clause as Madison and Jefferson conceived it and as Madison wrote it. That violation would be licensed by the tampering Republican tax-writers now contemplate. Their contemplated measure would bootleg into tax law the untaxed subsidy of religious purposes our third and fourth presidents sought to prevent. Its appeal is constitutional nonsense. But when was that ever a bar to Donald Trump’s purposes?
Contributing columnist Edwin M. Yoder Jr. of Chapel Hill is a former editor and columnist in Washington.