Presidential candidate Beto O’Rourke is, most likely, not going to be the Democratic nominee. But for some on the right, even while O’Rourke is seemingly flailing in the polls, he is newly representative of the “quiet part of the progressive agenda” — what every Democrat believes but never says out loud.
Case in point: During an LGBTQ town hall hosted by the Human Rights Campaign and CNN last week, Democratic presidential candidate Beto O’Rourke called for religious institutions that oppose same-sex marriage to lose their tax-exempt status.
“There can be no reward, no benefit, no tax break for anyone … that denies the full human rights and the full civil rights of every single one of us,” he said. “And so as president, we are going to make that a priority, and we are going to stop those who are infringing upon the human rights of our fellow Americans.”
Beto O’Rourke on religious institutions losing tax-exempt status for opposing same-sex marriage: "There can be no reward, no benefit, no tax break for anyone ... that denies the full human rights and the full civil rights of every single one of us" #EqualityTownHall pic.twitter.com/tjwVGqv5h0— CNN (@CNN) October 11, 2019
Democratic challengers, including Pete Buttigieg and Elizabeth Warren, backed away from O’Rourke’s stance, with Buttigieg saying on CNN’s State of the Union, “The idea that you’re going to strip churches of their tax-exempt status if they haven’t found their way toward blessing same-sex marriage — I’m not sure he understood the implications of what he was saying.”
But conservatives, from Never Trump right-leaning commentators to Trump supporters, seemed unconvinced that O’Rourke’s statement was reflective only of his own personal views (and perhaps his need to stand out amid a crowded field).
Like on the issue of guns and O’Rourke’s fiery support for mandatory buybacks, his remarks seem to conservatives to be speaking not for himself but for what the editors of National Review called the “Democratic id.” In short, some on the right have concluded that O’Rourke’s view on taxing religious institutions (and on guns) is what Democrats really think, and other Democrats are just avoiding agreement for the purposes of making nice with political centrists.
Noting that the audience at the debate applauded O’Rourke, the National Review editorial board wrote:
If other Democrats are refraining from adopting O’Rourke’s stance, then, it is for contingent reasons of prudence rather than lasting ones of principle. The contemporary Democratic Party is a threat to the first freedom mentioned in the Constitution.
Every position Beto takes is a position most other Dems want to work towards. Beto just ignored the incrementalism. You don't think Dems want to overturn 2A? You don't think they want to force cultural norms on orthodox Christians?— David Harsanyi (@davidharsanyi) October 11, 2019
Taxing religious institutions, explained
Religious institutions — churches, mosques, synagogues, and other places of worship — have been exempt from taxation since the time of the country’s founding, and at the federal level since the ratification of the 16th Amendment in 1913 guaranteed the federal government the power to tax incomes. Under the current tax code, religious institutions are considered nonprofit organizations, like those that, say, help the poor or maintain monuments.
That’s because in general, the courts and the law have attempted to treat religious bodies with “benevolent neutrality,” using a variety of tests (like the “Lemon test”) and past rulings to attempt to balance between too much government interference in religious life and rulings that would clearly advance one particular religious belief.
The Walz v. Tax Commission case in 1970 sought to challenge tax exemptions for religious institutions by arguing that they violated the establishment clause of the First Amendment (which forbids Congress from establishing a state religion). But as Chief Justice Warren Burger wrote, “Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.”
Basically, the courts and the government have found that religious institutions, in general, do far more good than harm for their communities and the people living within them, and they should be permitted to act without interference — or taxation. (And that includes all kinds of religious institutions. For example, the Satanic Temple enjoys tax-exempt status.)
But historically, there have been exceptions. Most famously, in 1983, the Supreme Court ruled 7-1 that the First Amendment could not stop the IRS from revoking the tax-exempt status of a religious university — in this case, Bob Jones University — whose practices violated a “fundamental national public policy.”
Bob Jones University, an evangelical university based in South Carolina, forbid black students from entering until 1971 and only began to accept unmarried black students in 1975. It also denied entrance to any who had been known to “advocate” for interracial relationships or marriages and forbid interracial dating on campus because, as a staff member argued in 1998, interracial dating “breaks down the barriers God has established.”
The Supreme Court found that BJU’s policy meant that the institution didn’t meet the standard required for religious institutions to enjoy a special tax status. Chief Justice Burger’s opinion wrote in his opinion, “it cannot be said that educational institutions that, for whatever reasons, practice racial discrimination, are institutions exercising “beneficial and stabilizing influences in community life” or should be encouraged by having all taxpayers share in their support by way of special tax status.” (BJU dropped its ban on interracial dating in 2000 and got its nonprofit status back in 2017).
That argument — that religious institutions that practice discrimination should not receive a special tax status — seems to be the one O’Rourke is making. But in this case, his ire is not aimed at an institution that forbids interracial relationships but at religious institutions that oppose same-sex marriage.
Beto O’Rourke’s very bad idea is also bad for Democrats
The problems with such an argument are numerous. First and foremost, as the New Republic’s Matt Ford points out, many religious groups and institutions oppose same-sex marriage, including ones that contain voters that tend to lean toward the Democratic Party:
It’s unclear how many religious organizations would be impacted by such a plan, but it’s safe to assume that there would be a profound impact on America’s spiritual infrastructure. Most Christian denominations—including the Roman Catholic and Eastern Orthodox churches, the Latter-Day Saints movement, as well as the Baptist, Methodist, and other evangelical traditions—oppose same-sex marriages and would be swept up in this policy change. So would many Orthodox synagogues and a wide swath of mosques and other Muslim cultural organizations.
And as Ford wrote, such a policy could hypothetically be used against religious institutions that do support marriage equality under a future presidency, the IRS being used as a cudgel to bash religious believers of whatever stripe who don’t occupy the Oval Office.
Ford concluded, “Punishing houses of worship for their spiritual beliefs veers into precisely the kind of illiberalism that Democrats are hoping to overthrow. This idea should be quickly excommunicated, no matter how much applause it may receive.”
O’Rourke’s remarks got swift pushback for other reasons — namely because the idea of using the government to punish people of faith who don’t support same-sex marriage is almost a parody of what Democratic or left-leaning voters want, a parody that many commentators argue plays directly into the hands of Donald Trump.
For all the things you may hate Trump for, if you're not factoring in he's not coming for your church, guns, cars, cheeseburgers, etc you're doing single entry bookkeeping.— Drew McCoy (@_Drew_McCoy_) October 11, 2019
A LOT of voters will be looking at the credit side as well.
At the Washington Post, Michael Gerson described O’Rourke as the“foul-mouthed, overreaching, anti-religious culmination of every exaggerated liberal stereotype and the embodiment of every fevered conservative nightmare,” arguing that he would hand the election to Trump because he would realize the “apocalyptic fears” of a swath of the Christian right. New York magazine’s Eric Levitz went further, writing that his commentary on guns, religious believers, and other hot-button topics made it seem “almost plausible that O’Rourke was, in truth, a GOP sleeper agent — or else a Tucker Carlson caricature of elite liberalism come to life.”
And some conservatives — though not using the same terminology — seemed to agree. At a time when Donald Trump and the Trump administration are seen by some on the right as a bulwark against the excesses of the left, O’Rourke’s statements during the LGBTQ debate seem to offer evidence that conservatives are right to want a bulwark against a left-leaning populace that seems to desire their punishment in the first place.
Michael Brendan Dougherty, a senior writer at National Review, told me he views O’Rourke’s comments as “a popular sentiment on the left, but one that is not normally voiced at that level.” He added, “Beto’s remarks are only evidence that he takes progressive premises seriously.”
I asked Dougherty to give me his most charitable reading of O’Rourke’s remarks, and he told me, “I would say O’Rourke sincerely believes religions with a traditional understanding of marriage, sexuality, and sexual identity threaten the safety of sexual minorities. And so one can credit him for taking the straightforward and logical view that the institutions promoting that understanding should be degraded and harassed, preferably destroyed.”
While Bob Jones University’s policies against interracial dating had, in Dougherty’s estimation, “no real basis in Christianity,” he also argues same-sex marriage violates the basic religious tenets of orthodox believers of the three largest religions in the United States — Christianity, Judaism, and Islam. (I’ll note here that I am a non-heterosexual Christian, and there are many, many LGBTQ people of faith among those religious groups, and others.)
“I agree with the court’s ruling that “government has a fundamental, overriding interest in eradicating racial discrimination in education,”’ Dougherty told me. “I would disagree that government has a fundamental overriding interest in disadvantaging Catholic, evangelical, Muslim, and Jewish institutions that hold to their ancient moral, legal, and sacramental convictions about marriage.”
“I’d go so far as to say, that doing so amounts to a violation of the Establishment Clause, as it imposes a government orthodoxy, one associated with the once-preeminent mainline church of America, on matters that clearly touch on fundamentals of faith and morals.”
And so it appears that Beto O’Rourke’s new role in the Democratic primary appears to be not one of a promising candidate for higher office but a terrifying Golem of hypothetical progressive overreach — a monster of his own making.