Democratic presidential candidates have spent the year introducing wave after wave of new policy ideas. Some of them are excellent. Others are interesting. And a few would be disastrous. Beto O’Rourke’s call last week to deny tax-exempt status to churches and other religious institutions if they oppose marriage equality falls squarely within the last category.
The former Texas representative backed the idea at last week’s CNN town hall on LGBT issues. “Do you think religious institutions like colleges, churches, charities—should they lose their tax-exempt status if they oppose same-sex marriage?” moderator Don Lemon asked him. “Yes,” O’Rourke quickly replied. “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. So as president we’re going to make that a priority and we are going to stop those who are infringing on the rights of our fellow Americans.”
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.
Unsurprisingly, O’Rourke’s Democratic rivals rejected his call, leaving him unusually isolated among the candidates. “I’m not sure he understood the implications of what he was saying,” Pete Buttigieg told CNN on Sunday. “That means not only going to war with churches, but also with mosques and a lot of organizations that may not have the same view of various religious principles that I do.” Elizabeth Warren’s campaign also told the Associated Press that “religious institutions in America have long been free to determine their own beliefs and practices, and she does not think we should require them to conduct same-sex marriages in order to maintain their tax-exempt status.”
O’Rourke’s idea would likely not survive a brush with the courts if enacted. It’s hard to imagine a good-faith interpretation of the First Amendment’s Free Exercise Clause that would allow Congress to grant tax exemptions to some churches and deny them to others because of their particular beliefs. If the IRS can withhold tax-exempt status from churches that support marriage equality, a future Trump-like president could simply invert that formula and punish churches unless they oppose it—or abortion, or whatever other spiritual tenet they choose. Virtually every Democratic candidate is drafting policy ideas that could one day become 5-4 losses before the Roberts Court; very few of them are proposing something that could be rejected by all nine justices.
The Christian right enjoys unrivaled political power in the Trump era, but that hasn’t stopped it from adopting the mien of a persecuted minority. O’Rourke’s comments only give credence to their claims. President Donald Trump, speaking at the Values Voter Summit over the weekend, told religious conservatives that he would “never allow the IRS to be used as a political weapon” and referred to O’Rourke as a “whacko” for his proposal. “Abolishing the exemption only for religious groups that do not toe the progressive line would be an outrageous oppression of church by state,” National Review warned in an editorial. “Other candidates have not yet echoed O’Rourke. But the crowd applauded.”
Perhaps in recognition of the mistake, O’Rourke partially walked it back over the weekend. “The way that you practice your religion or your faith within that mosque or that temple or synagogue or church—that is your business, and not the government’s business,” he told MSNBC on Sunday. “But 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.” This re-articulation more closely resembles the Equality Act, a proposed LGBT civil-rights bill that has broad Democratic support.
So why did O’Rourke overreach? The former Texas representative’s campaign has struggled to gain traction since his stumbling entrance into the race this spring, and he’s never managed to break into the upper tier of candidates in the polls. O’Rourke then found himself re-energized after the El Paso shooting in August, where he sharply criticized Trump for encouraging white supremacists and railed against the NRA’s lobbying against a ban on AR-15-style firearms. In that context, he’s also called for revoking that organization’s tax-exempt status. Whatever the merits of that particular idea may be, its reasoning fits far worse in the context of religious freedom.
Writing about a candidate’s policy gaffes on the campaign trail feels strange in an era where Trump can successfully enact his Muslim ban. But it’s genuinely hard to describe O’Rourke’s foray into federal tax policy and the separation of church and state as anything but an unforced error. 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.