There’s been much consternation expressed in the local daily this week about the state Department of Revenue notifying churches they are required to pay use tax on articles they buy outside the state. The churches claim this violates their constitutional rights. It’s another example of religious groups who have no hesitancy asking the state to legislate religious views screaming persecution if they might be subject to some generally applicable law. These complaints are frivolous.
More than a decade ago, good ol’ Jimmy Swaggart challenged California’s effort to apply its sales and use tax to religious materials it distributed, raising many of the same issues as the South Dakota churches. In a 1990 unanimous opinion written by now-retiring Justice Sandra Day O’Connor, the Supreme Court said the tax did not violate the Establishment and Free Exercise clauses of the First Amendment.
Regarding the Free Exercise claim, the Court said:
[T]he sales and use tax is not a tax on the right to disseminate religious information, ideas, or beliefs per se; rather, it is a tax on the privilege of making retail sales of tangible personal property and on the storage, use, or other consumption of tangible personal property in California. …. There is no danger that appellant’s religious activity is being singled out for special and burdensome treatment.
As for the Establishment Clause claim:
- At the outset, it is undeniable that a generally applicable tax has a secular purpose and neither advances nor inhibits religion, for the very essence of such a tax is that it is neutral and nondiscriminatory on questions of religious belief. Thus, whatever the precise contours of the Establishment Clause, its undisputed core values are not even remotely called into question by the generally applicable tax in this case. (Citations omitted.)
- [E]ven assuming that the tax imposes substantial administrative burdens on appellant, such administrative and recordkeeping burdens do not rise to a constitutionally significant level [because] generally applicable administrative and recordkeeping regulations may be imposed on religious organizations without running afoul of the Establishment Clause.
- The fact that appellant must bear the cost of collecting and remitting a generally applicable sales and use tax – even if the financial burden of such costs may vary from religion to religion – does not enmesh government in religious affairs.
- Most significantly, the imposition of the sales and use tax without an exemption for appellant does not require the State to inquire into the religious content of the items sold or the religious motivation for selling or purchasing the items, because the materials are subject to the tax regardless of content or motive. From the State’s point of view, the critical question is not whether the materials are religious, but whether there is a sale or a use, a question which involves only a secular determination. …. Ironically, appellant’s theory … would require government to do precisely what appellant asserts the Religion Clauses prohibit: “determine which expenditures are religious and which are secular.”
These excerpts dispose of virtually every argument the South Dakota churches have raised about the use tax. It is also a well-established principle of law: churches are subject to generally applicable laws that are neutral as to religious beliefs or practices. Of course, the Supremes could always throw decades of law out the window, certainly a possibility once Dubya is done with the Court. Moreover, given our history, the churches likely can scare enough state legislators into passing some exemption for them. I, for one, think it’s time churches quit using the government to legislate religious views while yelling persecution when subjected to reciprocal duties or obligations.
The religious entities did not request equality, but rather the right to trump the law, to be treated better than others who were similarly situated and governed by the same law.
Marci A. Hamilon, God vs. the Gavel
(discussing the Religious Freedom Restoration Act)