Attacking Tax-Exemptions for Churches a Lose-Lose Proposition

(Originally posted on The Bilerico Project.)

On November 4, the day after marriage in Maine was repealed by yet another church-backed ballot initiative, a gay activist in Tennessee started a Facebook page dedicated to revoking tax-exempt status from the churches that participated. In a week, he gathered over 60,000 fans, all of them eager to make anti-equality churches pay for their sins. But there's a big problem with their plan: The churches didn't do anything wrong.

I know. A year ago, after Prop 8 passed, I was eager to do the exact same thing. Then I did some research into the finer details of tax law. You know what? The law is some tricky shit. The rules that ban charities from backing a candidate in an election don't apply the same way to ballot measures. And even if we could prove that a church went over the vague spending limits that apply, we'd end up giving anti-equality churches a battering ram to use against us for the next two decades. I can see the headlines: "Gay activists destroy church over same-sex marriage." How's that going to play in Peoria?

Churches - or any 501(c)(3) - can support or oppose ballot measures

There's a lot of confusion about what churches - and other non-profit organizations - can or can't do and still retain their tax-exempt status. The tax code is very clear that 501(c)(3) organizations cannot support or oppose candidates for public office. It is also clear that 501(c)(3) organizations can engage in issue lobbying, as long as this lobbying doesn't constitute a "substantial" part of the organization's activities.

That's where the clarity ends, however. What constitutes "substantial?" How do you define "lobbying?" And how does this all apply to the churches that backed Prop 8 and Question 1?

Well, the answer to the "substantial" question is murky, and there are two different tests a non-profit can use, but generally, the limit seems to be somewhere between 5-20% of budget, depending on the size of the organization. What constitutes lobbying is also not completely clear, but for this purpose, the IRS has decided that supporting or opposing ballot measures are included as lobbying.

That means any 501(c)(3) organization - including churches - can legally spend 5-20% of their budget supporting or opposing a ballot measure and not put their tax-exempt status at risk. So, unless someone can prove that a church went over their spending limits, there is no chance that the IRS will revoke a church's tax-exemption just for backing Prop 8 or Question 1.

Attacking churches turns off moderate voters

So what if we did find a church that went over its spending limits and were able to successfully lobby the IRS to revoke its tax-exempt status? What exactly would we be winning?

A victory would definitely be a warning to other churches: if you don't play by these rules, we'll get you. But if most churches that gave to Prop 8 and Question 1 are already playing by those rules, that's not a huge benefit for our side. Churches that aren't involved in ballot questions would have an example of the perils of politics, but would also get a primer on how to participate and keep their tax-exemption, so that could be a wash.

One thing we'd get out of having a church's tax-exempt status revoked is revenge. Revenge for all the rights we've had revoked by Prop 8 and Question 1. It would be hugely satisfying in the same way that it's satisfying when a kid who has been bullied turns around and lands a punch square on the jaw of his or her tormentors. After being so ruthlessly bullied by homophobic churches, it would be so sweet to get one chance to bully back.

But at what price revenge? One of the more successful tactics used by religious opponents of equality is perpetuating the myth that same-sex marriage (or even anti-discrimination laws) will infringe on churches' ability to operate according to their beliefs. Marriage equality, they claim, will force churches to recognize marriages that they do not believe are valid, force them to participate in same-sex wedding ceremonies and even censor their religious teachings that oppose homosexuality. The National Organization for Marriage even includes loss of tax-exempt status as one of the talking points posted on their web site.

The idea that same-sex marriage will force churches to abandon their beliefs is one that repels the middle-of-the-road voters we need to reach to win at the ballot box. NOM and the Heritage Foundation are already trumpeting a situation in New Jersey where a Methodist organization refused to let a lesbian couple rent a "public" beachfront pavilion for a civil union ceremony, then lost their property tax exemption on the pavilion after the couple complained. Imagine the field day they'd have if marriage activists were successful in getting a church's entire tax-exempt status revoked! They'd portray it as the church simply speaking out about their beliefs and then being persecuted for it. And, sadly, it would work.

As much as I would love to stick it to the churches and organizations that have been so active in denying us our rights, it just seems like a distraction and waste of time, at best, and potentially harmful at worst. Going after the churches would satisfy a deep emotional need to get revenge on those who have done us wrong, but ultimately, would get us no closer to true equality. Let's take the high road here and focus on what we can do to win, rather than how we can punish our opponents.

Besides, conventional wisdom says winning is the best revenge and that it's a dish best served cold. Winning marriage a few years down the road, as I know we will, will be the best revenge of all.