Churches to be Taxed!?
from Coloradans for Fair Property Taxation

Churches and non-profit organizations in Colorado would be stripped of most of their real estate tax exemption under a proposed citizens' initiative likely to be on the ballot in November. Signatures of 88,000 voters in support of the initiative were submitted Thursday. While election officials must still determine if the petition is legal, only 52,242 valid signatures are needed. The proposal is believed to be the first of its kind in the United States, said John Patrick Michael Murphy, chairman of Coloradans for Fair Property Taxation and a member of the Freedom from Religion Foundation. "Why don't they pay their police bill? Why don't they pay their school bill?" Murphy asked rhetorically after he submitted the petition. He said other forms of property taxes could be cut by about $70 million a year.

The measure would keep the tax-exemption for non-profit schools and property used to "house low-income elderly, disabled, homeless or abused persons." Still, it is sending shivers through Colorado's religious and tax-exempt community. "It will just fold a lot of small churches," said the Rev. Lucia Guzman, executive director of the Colorado Council of Churches, which represents 14 Christian denominations. Religious and non-profit groups will campaign against the proposal by trying to convince voters of the value the tax exempts provide.

"Fair Property Taxation" Initiative Placed On Colorado Ballot.

The Secretary of State of Colorado announced that the Fair Property Taxation Initiative has enough signatures to go on the November ballot. The initiative reads as follows:

Coloradans for Fair Property Taxation said:

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Colorado Tax Initiative
Gains National Attention
"Religious Storm Nears Colorado"
by Conrad F. Goeringer
from AANEWS by American Atheists

October, 1996

What started as a movement in Colorado to tax non-profit organizations, including churches and religious groups, may spread far beyond the Rocky Mountains after the November 5 election. That's when citizens will get the chance to vote on a controversial proposal known as Amendment 11, a measure that would put churches and most other nonprofit groups on the tax rolls for the first time. Behind the effort is John Murphy, an attorney and critic of institutionalized religion. When Murphy began his crusade and founded Coloradans for Fair Property Tax, most of the pundits thought the measure wouldn't even make it on to the ballot. But 66,000 signatures later, Amendment 11 is causing what one paper describes as a "religious storm," and shaking up some powerful religious groups which over the past decade have moved into towns like Colorado Springs, and become a potent force in local and state politics.

Murphy's proposal is no longer being dismissed as a long shot. On Friday, USA TODAY noted that poll in September showed that 38% of the voters agreed with Amendment 11, while 52% opposed it and 10% were unsure. "But both sides agree the numbers are shaky," says the paper, and as a result many non-profits are worried.

Indeed, Mr. Murphy's call for fair taxation has united just about all of the religious groups in the state, from evangelicals and Catholics to mainline Protestants, Jewish, Muslim and Hindu groups. The Colorado Association of Non-Profit Organizations has built up a huge $750,000 war chest to fight the initiative, and joined with other organizations including the Church Management Association, Colorado Council of Churches, and even religious right groups such as James Dobon's Colorado Springs-based Focus on the Family. Estimates of the total amount being used to fight Amendment 11 run as high as $2,000,000.

Supporters of the proposal estimate that taxing non-profits would yield between $70 million and $100 million each year. But for Murphy and others, there are deeper issues than "just the economy, stupid." The underlying question is who should pay for basic services, everything from trash pick-up to fire protection. And Murphy told USA TODAY that the tax free status for many non-profits is unfair, in that it gives them an advantage in competing in the marketplace with private businesses. He used the example of a wealthy church which offered day care for its members. "These are people who can pay for their damn day care," he told the paper. "Why do I have to pay for wealthy people's kids?"

Critics have howled in protest, though, that the Murphy initiative would hurt people who benefit from the outreach of both secular and religious non-profits who provide a wide range of social services -- everything from soup kitchens to clinics and food banks. And the Rev. Lucia Guzman of the Colorado Council of Churches warned that up to 700 churches in the state might have to shut down if Amendment 11 wins at the ballot box.

But critics note that more and more of the "charity" claimed by religious groups and other non-profits is really government, taxpayer money which the organizations simply administer. Even the enormous Catholic Charities, USA now depends on government block grants for 65% of its budget. And the Fair Tax groups points out that "If this proposal passes, taxpayers can then contribute the extra money from their decreased tax bills ... to the church or non-profit of their choice. It would be their choice, not the governments."

Church and State

While religious groups have closed ranks and raised their own anti-Amendment 11 campaign budget estimated at $500,000, the squabble transcends question of money. Supporters of the initiative say that it will strengthen state-church separation by treating religious groups in the same way private businesses and other organizations are taxed. A representative of Americans United for Separation of Church and State, though -- a Baptist-funded organization which usually supports First Amendment efforts and opposes school prayer or partisan politicking by churches -- warned that Amendment 11 could ensnare government in religious matters. A spokesman for AU told the Ogden, Utah Standard Examiner that the initiate "would allow religious schools to be tax-exempt, but not the actual buildings in which people worship, while the whole point of religious schools is to support what's being taught in those churches."

Support Growing?

Whatever flaws might exist in the Murphy proposal, though, the basic concept of making all non-profits, including religious groups and churches pay at least part of their share seems to be growing. Religious leaders fear that the concept behind the Murphy Amendment could take hold elsewhere, especially as local government scramble to find new sources of funding. A Portland, Maine City Council representative told USA TODAY that "The era of simply allowing nonprofits to hold a larger and larger tax umbrella over themselves is over. " Some cities like Philadelphia are now "asking" non-profits to pay at least some share of their property taxes to help alleviate red ink in the municipal budget. Other towns like Buffalo, N.Y. have begun charging all users for basic services like garbage pickup.

The issue of taxing religious and other non-profits is also being raised on the legal front. Last week the U.S. Supreme Court heard arguments on whether local and state governments can void the property tax exemption for charitable groups if most of the people they serve are not local residents. That case involves a Christian Science summer camp within the jurisdiction of Harrison, Maine, which has been presented a $22,000 a year property tax bill. The city points out that 95% of the campers are from outside the state. Last year, the Maine Supreme Court ruled that the town had the legal right to tax the camp, a decision which according to the New York Times "alarmed religious groups and other nonprofit organizations around the country."

The idea of taxing non-profits, or at least charging for services which until now have been provided either free of charge or at reduced rates may appeal in certain urban areas which have seen a serious erosion in the ratable tax base. But win or lose, John Murphy's feisty call for fair taxation has struck a chord; it may prove to be one that the churches cannot silence.

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Separation of Church and State:
The Original Intent
by John M. Swomley
from his book "Religious Liberty and the Secular State: The Constitutional Context"

The constitutional doctrine of separation of church and state is a uniquely American contribution to government. It means that government has no authority to invade the field of religion, that government agencies may neither advance nor inhibit religion, and that government may not take account of a person's religion or lack of it in determining qualification for holding public office or for government employment. The only function of government with respect to religion is that of protecting the right of conscience, worship, autonomous control over doctrine, governance and resources of religious groups, and the private and public expression of religious conviction.

Separation of church and state does not mean separation of religion and politics. The religious or nonreligious person or group may freely engage in political speech and action that criticizes or supports government policies. Congress, however, has been able to limit lobbying by churches through the granting of tax exemption and tax deductibility of contributions to nonprofit agencies that use only a fraction of their resources to influence legislation.

The Constitution of the United States provides for a wholly secular government. Any action by the Congress, the Executive, or Judiciary that confers any benefit upon religious organizations or places any impediment in the way of religious expression that does not infringe the rights of others is a violation of the letter and spirit of the Constitution.

The Constitution, wrote the historian Charles A. Beard, "does not confer upon the Federal government any power whatever to deal with religion in any form or manner." James Madison called it "a bill of powers." He said that "the powers are enumerated and it follows that all that are not granted by the Constitution are retained" by the people.

The Constitution must be understood as a social contract between the people and the United States. The Tenth Amendment spells out the meaning of the social contract in these words: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people."

The social contract idea came from the political philosophy of John Locke, who had been a strong influence on many leading Americans, including Thomas Jefferson and James Madison. Partly under John Locke's influence, Jefferson and Madison came to believe that a government that was formed as a social contract had no power given to it to act on religious matters. Locke, who had popularized the social contract theory of government, asserted in his first Letter Concerning Toleration that "the care of souls cannot belong to the civil magistrate because his power consists only in outward force; but true and saving religion consists in the inward persuasion of the mind...."

Locke's statement in modern language is the idea that true religion is a matter of faith and that, if a church cannot persuade its members to accept its doctrine or contribute to its work, it is not the business of government to enforce the faith or pay its expenses. Governor Mario Cuomo of New York in 1984 defended his position of not seeking laws against abortion, following the assertion by Catholic bishops that Catholic politicians could not draw a line between their personal faith and public policy, when he said: "We seem to be in the position of asking government to make criminal what we believe to be sinful because we ourselves can't stop committing the sin."

The secular nature of the Constitution is clearly evident in the only reference to religion in it prior to the adoption of the First Amendment. That reference is in Article VI, Section 3, which forbids religious tests for public office.

Although the Declaration of Independence, produced only eleven years earlier, contains various religious terms such as "Nature's God," the "Supreme Judge of the world," and "Divine Providence," the Constitution has no such reference. It refers incidentally to religion in that Sundays are not to be counted in the number of days within which the president may veto legislation. This absence of religious references does not reflect any hostility to religion or even imply its unimportance. Rather, it is a recognition that religion would thrive better if left uninfluenced, unaided, and unimpeded by government.

Article VI, Section 3, which is the first specific statement of separation of church and state other than the secular nature of the Constitution itself, says:

The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial officers both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

This section is significant not only because it permitted any person without regard to religion to hold public office, but also because it provided for the use of "affirmation" as an alternative to a religious oath. An affirmation was understood as a solemn declaration by a person conscientiously opposed to taking an oath but which is parallel to the religious oath in value and penalty if violated.

The impact of this section of the Constitution has been of major significance to religious liberty. In itself it was an important impediment to the establishment or government support of any church. One reason for this is that the unchurched as well as adherents of churches dissenting to establishment were numerically larger than the combined memberships of all the churches that were formerly established during the colonial era or of those that could have had aspirations of such support at the time the Constitution was adopted.

Anson Phelps Stokes, in his monumental work Church and State in the United States, wrote that "Congress as constituted with men and women from all the denominations could never unite in selecting any one body" as an established church. "This has been so evident from the time of the founding of the government that it is one reason why the First Amendment must be interpreted more broadly than merely as preventing the state establishment of religion which had already been made almost impossible."

Stokes's statement is supported by comments made by contemporaries of the framing of the Constitution. Oliver Ellsworth, a member of the Continental Congress from Connecticut, a delegate to the Constitutional Convention, and the third Chief Justice of the United States Supreme Court, noted in one of his writings that in European nations with established churches there were always religious tests for holding office. Edmund Randolph, a delegate to the Constitutional Convention and the first Attorney General of the United States, referred to "no religious" tests for public office as meaning that those in office "are not bound to support one mode of worship or to adhere to one particular sect." Therefore, given the variety of religious organizations in the United States, "they will prevent the establishment of any one sect, in prejudice to the rest and forever oppose all attempts to infringe religious liberty."

James Iredell, a Supreme Court Justice from 1790 to 1799, who served in the North Carolina Convention that ratified the Constitution, referred to the exclusion of a religious test for public office as one way to establish religious liberty. He said that Congress had no power to create "the establishment of any religion whatsoever, and I am astonished that any gentleman should conceive that they have.... If any future Congress should pass an act concerning the religion of the country, it would be an act which they are not authorized to pass, by the Constitution...."

Another North Carolinian, Richard Dobbs Spaight, who had been a delegate to the Constitutional Convention, said about religion, "No power is given to the general government to interfere with it at all. Any act of Congress on this subject would be a usurpation."

Although the members of the Constitutional Convention and many other Americans believed that the new federal government had no power to legislate with respect to religion, there were many who feared the usurpation of power. They wanted to have a bill of rights that would effectively prevent the federal government from meddling with religion. Thomas Tredwell of New York opposed ratification of the Constitution, arguing that it needed a bill of rights. He said that he wished that "sufficient caution had been used to secure to us our religious liberties, and to have prevented the general government from tyrannizing over our consciences by a religious establishment -- a tyranny of all others most dreadful and which will assuredly be exercised whenever it shall be thought necessary for the promotion and support of their political measures."

Even in Virginia, James Madison and others who favored a federal union could not persuade the state convention to ratify the federal Constitution until it accepted a recommendation for a bill of rights. The opposition to ratification was led by Patrick Henry and George Mason. Mason had been a delegate to the Constitutional Convention in Philadelphia, but had refused to sign the Constitution because it did not have a bill of rights. He had been the principal author in 1776 of Virginia's Declaration of Rights. One of Virginia's proposed amendments to a federal bill of rights stated that "no particular religious sect or society ought to be favored or established by law, in preference to others."

Although Virginia ratified the Constitution, Rhode Island and North Carolina did not do so until after Congress had adopted the Bill of Rights.

The first Congress produced the Bill of Rights, but without the unanimous enthusiasm of all its members. Some members of the Congress opposed the proposal for a bill of rights on the ground that it was unnecessary because the Constitution did not grant the government any power to deal with religion or other rights retained by the people. James Madison originally shared this view. He told the Virginia convention, June 12, 1788, prior to its ratification of the Constitution: "There is not a shadow of right in the general government to intermeddle with religion." Madison, however, felt duty-bound to respect the Virginia convention's recommendation of a bill of rights. He also had come to believe that a bill of rights was needed to make doubly sure that Congress would not exercise powers not granted to it under the Constitution.

However, Madison was fearful that a bill of rights might be construed by future advocates of governmental power as implying that the government had implied powers that were not specifically denied to it. Madison's fears have been realized, as we shall see in subsequent chapters.

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