No! he explained

Neither Chik-fil-A’s zoning permits nor the tax exemption of the First Baptist Church of Crystal Springs should not depend on whether they behave decently. Do the phrases “freedom of speech” and “free exercise of religion” ring any bells?

The anti-gay political activity of the Chik-fil-A chain is ample reason for individuals and other businesses to boycott the chain.

But it’s not a reason for public officials in Boston or San Francisco or Chicago or Washington DC to threaten to deny it the permits it needs to expand. That’s called “freedom of speech.” It’s in the Constitution, right there in the First Amendment.

The refusal of a church in Mississippi to marry a black couple is ample reason to make fun of the church and its members.

But it’s not a reason to call for the IRS to revoke the church’s tax exemption. That’s called “the free exercise of religion,” and it’s also in the First Amendment.

C’mon, folks, is this stuff really that hard to figure out?

Footnote Note that the claim that churches could lose their tax-exempt status for refusing to marry same-sex couples was one of the obviously false, but politically potent, charges made by the Mormon Church and the Knights of Columbus to pass the anti-gay-marriage Proposition 8 in California.

Of course it wouldn’t violate anyone’s religious freedom if the Southern Baptist Convention (having long abandoned its tradition of congregational independence in order to purge non-fundamentalists) were to step in and force a change in the offending church. If the SBC doesn’t step in – in the face of, for example, the Parable of the Good Samaritan and St. Paul’s proclamation that ethnicity and social status don’t matter within Christianity – then it  would be fair to question the SBC’s Christian orthodoxy: but not its tax exemption.




Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

14 thoughts on “No! he explained”

  1. “then it would be fair to question the SBC’s Christian orthodoxy: but not its tax exemption.”

    I think in a larger sense it would be fair to question its tax exemption. Why do religious organizations get exempted? Presumably because they are thought to do so much social good that no obstacles should be put in their way. That decision should be revisited from time to time, as public opinion changes and as religions themselves change.

      1. Wait a second, the Constitution does not require that ANYONE be exempted from income or property taxes, let alone religious organizations, let alone religious organizations not actively engaged in social or charitable work, and let alone religious organizations that are, in effect, using taxpayer dollars to engage in racial discrimination. So the amendment process is irrelevant here; this is purely a statutory matter.

  2. Jeff: wait, tax exemptions are in the constitution? Citation?
    The sea change in tax law would drive many profitable (hospitals) businesses out of their current arenas. Recognize of course that the current setup is a subsidy for those churches that do certain things. But just because we say we won’t burden the exercise, does not mean that the land has to be untaxed. That they can fire janitors for not having the right faith. Those are later choices. Post-ratification.

    Mark: why the 1A claim? Maybe I’m being obtuse. Is a permit a right, a privilege, does it matter?

    Wo says cities can’t be intolerant of intolerance? Their BELIEFS are protected. Why is their sacred right to be treated identically for having them? There could be a race to the bottom for municipalities that allow stupid corporations sanctuary. “You insult many of your potential customers and those sympathetic to them? We’ll welcome you!”. In fact, we already have that, in the reverse direction.

    This just isn’t the ground zero mosque nonsense. Chik fil a is not being picked n for the sins of others. It is a corporation getting the same welcoming reception that one would expect them to get- and I’m sure that a tax singling them out would be bad law. But why do they have to have special treatment? Sometimes equal is special. Tis is the Solomon Amendment and discriminatory employers wanting equal (preferential) treatment at on-campus recruiting, in my view.

    1. Tax exemptions are optional. Granting or withholding them on points of doctrine or discipline is a no-no.

  3. Mark’s post deserves about a thousand words in response, but I would refer him to Bob Jones University v. US, and Robert Cover’s “Nomos and Narrative”.

    I’ll only say one other thing. Religious freedom is a limited concept. Would we allow the Thugee to freely practice their religion here? I kind of doubt it. That’s what the Bob Jones case was about, with race the stand-in for murder of travelers. Bob Jones is very contestable, and Cover’s piece does a brilliant job of contesting it.

    And something else. There is another Constitutional thread here: whether a for-profit corporation can claim First Amendment religious freedom protection. Chick Fil-A is not Dan Cathy, who is Constitutionally entitled to his homophobia. Corporations are people, my friend? Not completely. Not yet.

  4. Fixed it for you: “The anti-gay political activity of the Chik-fil-A chain is ample reason for…public officials in Boston or San Francisco or Chicago or Washington DC to threaten to deny it the permits…”, because it creates an overwhelming, prima facie presumption of intent to violate the law: applicable employment law, for a start.

    1. I think you may be going a bit far here. Flat-out denial is wrong; heightened scrutiny might be warranted. If nothing else, Cathy’s remarks make for a prima facie hostile environment, and would plausibly trigger heightened scrutiny. Certainly if a CEO of a large firm declared that black people were only good for being janitors, or that women should stay out of the workforce, and be paid less than men for the same job while they were in it, his company would be in trouble even if it had a stated antidiscrimination policy.

      There’s a corporate-governance argument that by making such statements Cathy is violating his fiduciary duty as an officer of the company (and no, that claim doesn’t fall afoul of the first amendment; there are all kinds of things that corporate officers face sanctions for saying, even though it would be legal for a non-officer to say them).

  5. “The anti-gay political activity of the Chik-fil-A chain is ample reason for individuals and other businesses to boycott the chain.”

    Chik-fil-A is a franchise chain run by independent owner/operators. Some of which have been involved in pro gay support and activities. And I haven’t seen any recent news where any of them have been accused of discriminating against either employees or customers.

  6. If the oafish illiteracy of the brand name of this glorified peddler of chicken-burgers was not sufficient reason to exile them on grounds of corrupting the young, presumably nothing is.

    Question: do we approve of individuals and pressure groups boycotting businesses on moral grounds (racism, homophobia, cruelty to animals etc)?

    I assume the answer is yes.

    Presumably then we would approve of larger groups – such as churches or cities – doing so on moral grounds as well. Who should make this decision? In practice,the head of the church or the mayor of the city as its elected head and leader of the community – which is, after all, part of the job they were chosen to do. If voters disagree, they can petition city hall or vote out the mayor next time. Therefore, logically, we should approve of what Menino and Emmanuel have done in this case. In boycotting CFA they have simply put into practice a longstanding and generally accepted principle in accordance with the moral vision of their communities as expressed in publicly approved anti-discrimination laws and policies.

    Anyone care to refute this case?

    1. I can’t put people in jail. Churches can’t put people in jail. Cities can put people in jail. There’s a difference.

    2. Using the power of a government to enforce majority will on protected liberties of a minority is against the principles of American constitutional law. A city (or any other government) is not simply another, larger “pressure group.” Governments have powers that private groups do not have and that is why our system does not allow “voters” to impose on certain freedoms at will.

  7. The case of a church refusing to marry a black couple is notably different from a church engaging in political activity, as many ministers do around each election, and as the K of C/LDS Church appear to have done with Prop 8. Churches are not permitted to engage in political activity while retaining their tax-exempt status, and seeking to revoke that status when they violate the rules against political activity is not a violation of the Free Exercise clause.

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