Tags: gay marriage, Non-Profit Tax Exemption, Proposition 8
I’ve been getting a lot of people directing me to the Mormons Stole Our Rights web site, starting a campaign to take away the LDS Church’s tax-exempt status for the participation in the Proposition 8 battle. This is the wrong approach. Let me explain:
I’m especially pissed at the Mormons for two reasons: 1) it was the religion of my childhood and I feel betrayed and shunned all over again; 2) because they financed at least 1/2 of the campaign and provided the lion’s share of the ground forces for prop 8. So I get the rage and the need to strike back.
However, I’m a stickler for free speech and free expression: As the law now stands, the Mormon church did NOT break the law; neither did the catholic church; nor the evangelical churches who campaigned (and who held that horrifying rally in San Diego a few days before the election).
There is a legal problem here that we realistically need to account for if we are to hold the LDS Church accountable (as well as the Catholics and all those Evangelical churches): The Mormon church did not break any law. It’s within their rights according to the IRS code to advocate publicly and spend money to advocate for political issues. Like all churches/non-profits, they are only barred from campaigning for candidates. The website “Mormons Stole Our Rights” is wrong on the legal facts (it ignores subsection (h) of the tax code they site) and this will lose in any court in America. Ask any tax attorney and they’ll spell it out for you. Even more problematically, the Mormon church itself donated exactly ZERO funds to this campaign anyway and asked its members to donate money; this is also completely within its rights as the law now stands.
The more legally sound approach is to begin a campaign consisting of one of the two of the following:
a) demand that churches not be considered special kinds of non-profits and that their finances must be made public, just like non-religious non-profits must.
b) remove nonprofit status from all religious organizations. Make them all pay taxes on the money they use to advocate for issues, just like all private citizens must (we have to pay taxes on the money we donate to political causes). Religions have only had nonprofit status since the 1950s. This isn’t enshrined anywhere in stone.
There is also a third issue to consider:
c) another way to go might be to see if it could be made illegal for California propositions to be funded by out of state interests (see prop 10 as another example); I suspect that may come into conflict with the interstate commerce clause, however, and would require federal legislation.
In some ways, this nascent campaign seems to seek to punish the Mormons for expressing their beliefs and campaigning for them. That is, on its face, anti-democratic and the precise wrong way to go about addressing our the role of the LDS Church in this past election. I’m all in favor of the protests at the Mormon temples, the intense criticism in the public sphere that Mormonism has been getting over this issue, etc. That is what free speech is for: Engaging against wrong-headed and harmful speech and countering it. But rather than seeking to punish an individual or organization for doing what is most fundamental to a democracy, we should be seeking to change people’s minds and convincing the majority of Californians that they are wrong ethically and democratically to enshrine a second class citenzhip for homosexuals in their constitution.
Let’s face it: The No on 8 campaign was completely unprepared for this battle, and the homos of California were complacent and assumed that there was no way this could pass. By the time No on 8 made the staffing change in the campaign, it was too little too late. There is much work to be done to overcome the homophobia and no institutionalized inequality in our Constitution. I fear that this specific line of attack is the wrong one, unless done very carefully and with full understanding and respect for the law and for the right to free speech and expression.
“Gay Marriage” in California 22 May 2008Posted by Todd in Commentary, Democratic Theory, Gay Rights.
Tags: California Supreme Court, gay marriage, judicial activism, marriage equality
I’ve been meaning to post about last week’s decision for, well, about a week now, but haven’t really had the time to breathe with all these blue books needing graded. I’ll try to come back to this early next week when grades are submitted. For the time being, run, don’t walk, to read Glenn Greenwald’s two analyses of the legal issues. I especially appreciated his day-of explanation of what makes an “activist court” and why this is not judicial activism. I wish some of the law professors I’ve been hearing on the radio over the past week would do some reading in democratic theory and even the Federalist Papers, for god’s sake.