How Much Accommodation?

130114152903-abc-schoolhouse-rock-just-a-bill-horizontal-large-galleryLast week on The Surly Subgroup, I wrote about a bill making its way through the House right now. The last section of that bill would make it even harder than it already is for the IRS to audit churches it suspects have campaigning for or against candidates for office.

Reading the bill (and writing the post) crystallized for me a question I’ve had at the back of my mind: how much accommodation should we push for? That is, should there be an upper to the exceptions churches and other religious organizations seek from the law? 

I guess I should start with this: I support the idea of religious accommodation. Religious entities should be free from (at least some) laws that impinge on their religious beliefs and practices. The law should not forbid, for example, a Jewish Air Force officer from wearing his yarmulke.

At the same time, there are limits to accommodation. Even if a religion teaches that it should be able to take any real property that God demands it take, the law should not recognize and enforce property rights in property that belongs to other people.

I’m not talking about these extreme cases, though—I’m talking about matters of convenience. For example, there’s not (legitimate) religious objection to auditing a church, or at least, there’s not one that the government needs to recognize. At the same time, while there are problems with heightened audit procedures applicable only to churches, the revenue system can survive them (the IRS has already faced heightened audit standards for churches for at least two decades).

But this is my question: at what point does requesting accommodations harm religion itself? (And n.b. that there’s no indication at all that any church, much less churches as a category, requested the heightened audit standards; it could well have been a Texas Representative who saw something in the news about a church investigation in his district, was offended by the idea, and added a rider to a bill.)

I don’t have any solid evidence, but my feeling is that, at some point, society has a limited tolerance for requests for special treatment. And my feeling, further, is that, the more arbitrary and unimportant those requests, the less patience society has for them.

And the heightened audit requirements strike me as an arbitrary and unimportant accommodation. Yes, churches (like the rest of us!) would rather not be audited. But not-being-audited doesn’t strike me as a compelling religiously-based practice.

It may be valuable for religion to think carefully before advocating any particular accommodation—I would hate for churches to lose accommodations writ large over a handful of cases of overreach.


  1. I suspect this bill comes from social conservatives realizing that the chance of Republicans controlling the Executive Branch at any point in the next couple of decades is small and shrinking, and trying to hamstring the IRS accordingly.

  2. Interesting issue, Sam. Worthy of discussion. My off the top reaction(s):
    1. Attacking audit standards is a mistake. The end result of “don’t ask” is “anything goes” and that is too far.
    2. But attacking audit standards is probably, in this case, a proxy for questioning the limitation on churches supporting or campaigning for candidates. And that’s a serious question. Personally I don’t like the idea of churches supporting candidates, but I don’t find it a bridge too far. As a matter of policy I think we have probably drawn the wrong line on that one.
    3. For where I would draw (a different) line, I think we should not allow churches to support or advocate legislation. A danger to our secular society is religion-any religion–imposing its norms on others. Often going by the -ist suffix, Christianist or Muslimist or Mormonist, trying to remake society into any one religion’s image is something we should oppose.

  3. Thanks, Christian. I definitely agree with your numbers 1 and 2. In my mind, the problem with using this as a proxy to attacking the campaigning limitation is at least threefold, though. First, it’s cluttering up the tax law to respond to a problem that doesn’t exist (because churches—and, for that matter, pretty much all other tax-exempts—don’t lose their exemption over this even though the law says they should).

    Also, though, Rep. Culberson is a member of Congress. That is, he’s uniquely positioned to actually eliminate the provision if he doesn’t like it. And if he doesn’t like it and he can’t get the support to repeal it, he’s actually acting against his interests—nobody has standing to challenge the provision in court except for a church that has had its exemption revoked. By making it harder for the IRS to audit churches (and, thus, to revoke exemptions), this bill makes it harder to get the question in front of churches.

    As for your third point, I’m uncomfortable preventing churches and other tax-exempts entirely from lobbying (not just for constitutional reasons, but also for pragmatic reasons). Once a church can no longer participate in politics, it becomes an easy target for unfriendly laws, because it can’t defend itself and its interests in the political sphere. And it’s a bigger problem for small or unpopular religions—remember the uproar a few years ago about the mosque that wanted to build in Lower Manhattan? If politicians know that churches can’t politic, I’m not sure there’s anything to stop them from that kind of small-scale abuse.

    I actually think the tax law gets it about right now, forbidding tax-exempts from engaging in more than insubstantial politicking. I mean, it would be great to have more clarity about how much politicking crosses the insubstantial line, but it’s at least a defensible (and workable) standard.

  4. Regarding churches defending themselves, I wonder (i.e., question) how much that happens in fact? As an anecdotal observation, I hear of churches (and tax exempt organizations more generally) defending themselves in court, and pushing rules on others in the legislature. Whatever the truth, I do think it is relevant to this discussion what churches and other tax exempts actually do.

  5. Christian, it’s an imperfect proxy (because it’s looking at religious advocacy groups, not just churches), but according to Pew (esp. pp. 48 and 51), religious organizations do a broad range of issue advocacy, ranging from religious freedom to civil rights to immigration to education. I suspect, in fact, that a not-insignificant part of church advocacy is not pushing rules on others (though there are certainly vocal factions of that).

  6. I’m not sure I understand christiankimball’s concern about churches pushing rules on others, and how that should relate to their tax exempt status. Aren’t there a lot of non-profits pushing rules on us? Didn’t MADD seriously influence DUI/DWI laws, etc? Aren’t there non-profits that limited kids’ ability to purchase cigarettes? There seem to be a number of such organizations, and although they’re not religious, their zeal practically is. When it came to audits or the ability to lobby, I’m not sure why churches should have extra protections or restrictions.

  7. I don’t think that the author appreciates how government works. It is humans. And the point of the bill is to make more explicit so that IRS will not repeat what it has recently done against political and social opponents. Because of the power a government has and the human frailties and wickedness, even auditing (except in the normal course of enforcement of religious entities that have taxable income, or as the IRS has proof of fraud) really is a huge deal. It absolutely could put churches out of business even when they haven’t done anything illegal. (If you want to see another example of this, you have only to look at the way civil forfeiture has evolved.)

    Constitutional limits have always allowed interfering with religious groups when safety and health are involved with strict scrutiny that a less burdensome approach wouldn’t work.

  8. RNP, “the author” (my, btw—my name’s up top) certainly does appreciate how government works and, to a lesser extent, how politics work. He also understands how the current tax law treats churches and church audits and, in fact, how those audits occur. (Did you know that there are likely only 100 church audits a year? You would if you’d clicked over to the other blog post.)

    Culberson is addressing a problem that doesn’t exist (there has been one single recorded example of a church losing its tax-exempt status for violating the campaigning prohibition); unless you can provide evidence to the contrary, I will assert that an IRS audit has never put a church out of business.

    And there is not even the lightest suggestion that different audit standards are somehow constitutionally mandated. And any such suggestion would be absolutely wrong.

  9. Sam,

    I appreciate the post and wish it had more participation (at least as revealed by the number of commenters). To your more general thesis (I’m leaving the tax questions alone):

    “It may be valuable for religion to think carefully before advocating any particular accommodation—I would hate for churches to lose accommodations writ large over a handful of cases of overreach.”

    Historically speaking, when politics and religion mingle, religion becomes the corrupted one — something to do with wrestling with pigs. I’m with you, I believe overreach is the greater threat. In such cases, either the church (generically speaking) comes to reflect the political machine, or it provokes a backlash.

  10. Mark D. says:

    Churches have a First Amendment right to advocate for or against anything they feel like, and only waive that right to some degree as a condition of 501(c)(3) status, a tax classification that basically amounts to state sponsorship. As long as the Church wishes to sponsored by the state, it has to reign in its political activities (and a number of other things) in certain well established respects.

    If, on the other hand, the Church wishes to “stand independent of all other creatures under the celestial world”, and retain a modicum of discretion on some of the most critical issues of the day, the very first thing it should do is drop 501(c)(3) status – i.e. drop state sponsorship – as an unwelcome and unnecessary intrusion into its fundamental rights – freedom of speech, freedom of the press, freedom of assembly, and free exercise of religion.

    On the other hand, if the Church wishes to continue as a state sponsored church, it should be prepared to continue to constrain its freedom of discretion in innumerable ways simply to make the watchdogs of that state sponsorship happy. If you sell out, there is always a price to be paid.

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