Would taxing churches be constitutional?

[brucejoel99]

No court has decided whether or not taxing churches is unconstitutional. What the courts have decided, however, is that not taxing churches is constitutional, so long as churches aren't receiving special treatment from the government compared to what other nonprofits receive. So, presumably, yes, taxing churches would be constitutional so long as churches aren't receiving favoritism compared to other nonprofits (or, alternatively, other nonprofits aren't receiving favoritism compared to churches).

Remember, though, tax exemptions are a privilege, not a right. The government has traditionally granted this privilege to churches because of the positive contribution they're presumed to make to the community, but there's no such provision in the Constitution. Indeed, an argument could be made that NOT taxing churches is unconstitutional (though Supreme Court precedent currently stands against this), in that tax exemptions for churches violate the separation of church & state enshrined in the Establishment Clause. One of the best ways to "establish" one or more religions is to subsidize them, which not taxing churches does; basically, by providing a financial benefit to religious institutions, government is supporting religion. William Douglas, Walz v. Tax Commission of the City of New York (1970): "If believers are entitled to public financial support, so are nonbelievers. A believer & nonbeliever under the present law are treated differently because of the articles of their faith… I conclude that this tax exemption is unconstitutional."

[brucejoel99]

While it would be unconstitutional to tax churches but not to tax other non-profits, it would be fully constitutional to tax all non-profits equally.

What about the McCulloch v. Maryland precedent?

I think you're reading too much into the McCulloch decision, which I believe was really only to be applied to the sharing of power between the federal and state governments. Yes, it was said that the power to tax is the power to destroy, but the government taxes other things that it cannot constitutionally "destroy," like the press, which is protected under the First Amendment just like the free exercise of religion.

The law that was struck down did not apply to all banks equally.  Banks not chartered in Maryland but operating in Maryland were taxed $15,000. At the time, the only such bank operating in Maryland was the Bank of the United States.  If the Maryland law applied to all banks operating in Maryland equally, then I doubt the law would have been struck down.

Yeah; if anything, the relevant precedent here is Walz v. Tax Commission, not McCulloch.

[brucejoel99]

While it would be unconstitutional to tax churches but not to tax other non-profits, it would be fully constitutional to tax all non-profits equally.

What about the McCulloch v. Maryland precedent?

The law that was struck down did not apply to all banks equally.  Banks not chartered in Maryland but operating in Maryland were taxed $15,000. At the time, the only such bank operating in Maryland was the Bank of the United States.  If the Maryland law applied to all banks operating in Maryland equally, then I doubt the law would have been struck down.

Huh? I don't think a lack of equality in the taxation of banks had anything to do with the Court's ruling in McCulloch. That case was decided almost fifty years before ratification of the Fourteenth Amendment. The Court invoked the Supremacy Clause of Article VI and said that a state cannot interfere with the operation of the federal government. I've always thought to myself that the gist of McCulloch is that the taxpayers of the United States never owe anything to the tax collectors of a state, because the federal government and its valid, constitutional laws are supreme. (I've also thought to myself that "The power to tax is the power to destroy" is drama queen rhetoric, unbecoming of a staid Supreme Court opinion. There would have been an easier way to convey the sense that imposing a tax on an entity is interfering with that entity.)

Brucejoel99, I thought from your previous post that you were agreeing with the dissenting opinion in Walz rather than agreeing with that Court's majority opinion. So why is Walz the most pertinent precedent? You were correct to say that being granted a tax exemption is a privilege, not a right, and so I agree that we could impose taxes on churches without violating the Free Exercise Clause. (I don't want to do that, but we could if we had agreement to do it.)

I mean, yeah, I personally agree with Douglas' dissenting opinion in Walz, but a dissenting opinion that I personally agree with is totally & completely irrelevant in a legal sense, considering it's the majority opinion only which stands as the ruling of the Court. Hence why I said...

an argument could be made that NOT taxing churches is unconstitutional (though Supreme Court precedent currently stands against this)

To answer your question, Walz is still the most pertinent precedent because that was the case in which the Court decided that not taxing churches is constitutional, so long as churches aren't receiving special treatment from the government compared to what other nonprofits receive; thus, it's applying the logic of Walz that would presumably mean that taxing churches would be constitutional so long as churches aren't receiving favoritism compared to other nonprofits (or, alternatively, other nonprofits aren't receiving favoritism compared to churches).

[brucejoel99]

Brucejoel99:
So your understanding of Walz is that we have to tax all non-profits if we tax churches? That's another reason why I wouldn't want to remove the tax exemption for churches.

It's not my understanding so much as it's a necessary consequence of the decision. Were churches to be taxed, they couldn't receive special treatment from the IRS beyond what other nonprofits receive.

EDIT: formatting