Should Congress Express Support for the Freedom of Conscience? (S. Joint Res. 58)

What is S. Joint Res. 58?

(Updated October 26, 2021)

This resolution would express the support of Congress for freedom of conscience, as enshrined in the First Amendment. Further, it would assert that government shouldn’t be in the business of deciding what religious beliefs are “correct.” Finally, it would state that it would be unconstitutional for the government to condition the receipt of any constitutional protections, including an exemption from taxation, on an organization’s public policy positions.

As a joint resolution, this bill could be passed by both chambers of Congress and signed into law by the president.

Argument in favor

Freedom of conscience — which in the context of this bill can be understood to be interchangeable with freedom of religion — is enshrined in the First Amendment. From this, it follows that the government should neither try to decide what religious beliefs are “correct” or attempt to deny tax-exempt status to tax-exempt organizations that take specific public policy positions.

Argument opposed

Organizations that deny full human and civil rights to some people, or that oppose settled policy on issues such as race or sexuality, shouldn’t be allowed to maintain their tax-exempt status. The federal government previously held this view when it revoked Bob Jones University’s tax-exempt status over its interracial dating ban, which was upheld by the Supreme Court.

Impact

Freedom of conscience; tax-exempt organizations that take public policy positions; and preservation of tax-exempt status for tax-exempt organizations that take public policy positions.

Cost of S. Joint Res. 58

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sen. Ben Sasse (R-NE) introduced this resolution to express the House’s and Senate’s support for freedom of conscience after then-Democratic presidential candidate Beto O’Rourke called for religious organizations that don’t support same-sex marriage to lose their tax-exempt status during a CNN Town Hall. Calling O’Rourke’s proposal an example of “extreme intolerance,” “extreme bigotry,” and “profoundly un-American” on the Senate floor, Sen. Sasse argued that the government can’t regulate churches’ speech and can’t “define true and false religion”: 

“I don't care what some nitwit said on CNN last week to satisfy his fringy base and try to get a sound bite in a presidential debate. The American people ought to know that this body stands for the historic First Amendment, that's what we all took an oath to uphold and to defend and that's what we ought to vote to affirm again. Government doesn't rifle through your pastor's or your rabbi's sermon notes, government doesn't tell your clerics what they can or can't say, government doesn't tell your religious leaders how they will perform their services, government doesn't tell you where or when you will worship.”

Rep. Jim Banks (R-IN), who is the sponsor of this bill’s House companion, says: 

“The First Amendment of the United States Constitution states, ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’ No religion, or its practitioners, can be suppressed or coerced by the state. When politicians threaten to use the power of the state to deliberately suppress some peoples because of their religious convictions, they violate the Constitution and one of America’s most sacred traditions. The First Amendment states that no matter one’s beliefs, no matter how one worships – if one worships – every American citizen may enjoy the rights enshrined to them in the Constitution, given to them not by the state but by God.”

Focus on the Family supports this bill. In an article for its publication, The Daily Citizen, legal analyst Bruce Hausknecht observes that tax-exempt status for churches and religious organizations is a longstanding practice in both the U.S. and historical governments: 

“Federal tax exemptions for religious donations date back to the First World War… By the time of the American Revolution, nine of the original thirteen colonies were giving some kind of tax relief to churches. The idea can be traced back to Roman times when Emperor Constantine granted the Christian church a complete exemption from all forms of taxation. Tax-exempt status for churches and religious organizations serves a continuing social benefit to American society and is consistent with our country’s commitment to keep the government from unnecessary entanglements with religion. It is a policy that is in keeping with the best social and constitutional traditions of this nation.”

After the Supreme Court allowed gay marriage in its decision in Obergefell v. Hodges, TIME writer Mark Oppenheimer argued that the event — which was greeted by Sen. Mike Lee’s (R-UT) introduction of the First Amendment Defense Act to ensure that religious institutions wouldn’t lose their tax exemptions if they didn’t support same-sex marriage — should precipitate taking tax-exempt status away from organizations that oppose settled public policy on issues around race or sexuality: 

“Rather than try to rescue tax-exempt status for organizations that dissent from settled public policy on matters of race or sexuality, we need to take a more radical step. It’s time to abolish, or greatly diminish, their tax-exempt statuses… [T]he religious exemption has forced the IRS to decide what’s a religion, and thus has entangled church and state in the worst way. Since the world’s great religion scholars can’t agree on what a religion is, it’s absurd to ask a bunch of accountants, no matter how well-meaning… [T]he IRS famously caved and awarded the Church of Scientology tax-exempt status. Never mind that the Scientology is secretive, or that it charges for its courses; or that its leader, David Miscavige, lives like a pasha. Indeed, many clergy have mid-six-figure salaries — many university presidents, seven-figure salaries — and the IRS doesn’t trouble their tax-exempt status. And many churches and synagogues sit on exceedingly valuable tracts of land (walk up and down Fifth Avenue to see what I mean). The property taxes they aren’t paying have to be drawn from business owners and private citizens — in a real sense, you and I are subsidizing Mormon temples, Muslims mosques, Methodist churches… Meanwhile, although nonprofits can’t endorse political candidates, they can be quite partisan and still thrive on the public dole, in the form of tax exemptions and deductions. Conservatives are footing the bill for taxes that Planned Parenthood, a nonprofit, doesn’t pay — while liberals are making up revenue lost from the National Rifle Association… [T]he exemption-and-deduction regime has grown into a pointless, incoherent agglomeration of nonsensical loopholes, which can allow rich organizations to horde plentiful assets in the midst of poverty… [I]t’s time for most nonprofits, like those of us who faithfully cut checks to them, to pay their fair share.”

This legislation has yet to receive a committee vote and doesn’t have any cosponsors. Its House companion, sponsored by Rep. Jim Banks (R-IN), has 21 Republican House cosponsors.

Of Note: Sen. Sasse introduced this resolution in response to then-Democratic presidential candidate Beto O’Rourke’s remarks during a CNN Town Hall on LGBT issues. In his remarks, O’Rourke expressed the opinion that religious institutions such as churches and non-profit charities should lose their tax-exempt status if they oppose same sex marriage. He said, “There can be no reward, no benefit, no tax break for anyone or any institution, any organization in America, that denies the full human rights and the full civil rights of every single one of us.”

After the town hall, the O’Rourke campaign clarified that he wasn’t referring to tax-exempt status for houses of worship, but rather access to public grants and tax dollars for religious-based charities. In an interview with MSNBC, O’Rourke said, “When you are providing services in the public sphere, say, higher education, or health care, or adoption services, and you discriminate or deny equal treatment under the law based on someone's skin color or ethnicity or gender or sexual orientation, then we have a problem.”

Tax-exempt status allows many small churches to stay open (they wouldn’t be able to afford to do so otherwise, as the median regular attendance at U.S. churches is 75). In many small towns, small churches are the norm and serve a central role in community activities. The loss of these community gathering places would deprive some populations of organized churches whatsoever.

The federal government has previously denied tax-exempt status to religious institutions whose public policy positions run contrary to public policy. Most famously, in 1983, Bob Jones University lost its tax-exempt status when it continued to ban interracial dating following a federal district court injunction preventing the IRS from granting exempt status to private schools in Mississippi that practiced racial discrimination in admissions. 

When the Supreme Court ruled on the case in , it said that the Internal Revenue Service (IRS) may deny tax-exempt status to organizations whose racially discriminatory policies are “contrary to established public policy,” even if those policies are based on religious beliefs.

Media:

• House Sponsor Rep. Jim Banks (R-IN) Press Release
  
• TIME (Opposed in Theory)
  
• Catholic News Agency (CNA)