A Republic If You Can Keep It > We Must Not Be Ignored

If any one has bothered to follow my string of Hubs, blog, or whatever the proper term is, my apology for being silent so long. Health problems and a substantial change of work demands have prevented me from generating anything thoughtful that I have deemed worth reading.

My original intent in writing these Hubs was not to take positions on the social and political issues of the day. Rather, I issued a call to seize the challenge Benjamin Franklin made to Americans at the close of the Constitutional Convention in 1787 – “you have a Republic if you can keep it.”

Regardless of your personal position on Affordable Health Care or same-sex marriage, arguably the Supreme Court under the guise of constitutional interpretation made major social policy decisions that otherwise were being debated and resolved, for better or worse, in the federal and state legislatures. The Supreme Court short-circuited this republican process of decision-making and resolved the debates definitively. I propose the question of whether this process, the content of the decisions aside, threatens to make "we the people" irrelevant in the governing scheme that we, as the sovereigns, established by ratifying the Constitution?

The following exemplifies the problem. In the oral argument in the same sex marriage case, Justice Alito asked the Solicitor General, the Administration’s chief advocate before the Supreme Court, if a ruling in favor of same-sex marriage will lead to religious organizations with biblical and traditional views of marriage being forced to forfeit their tax-exempt status?

Solicitor General Donald Verrilli answered: “You know, I ­­don't think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. ­­ I don't deny that. I don't deny that, Justice Alito. It is--it is going to be an issue.”

When General Verilli and the Administration get the specifics, and it becomes an issue, the position will predictably be yes, the tax exemption should be pulled.

Assume a straight-forward hypothetical. A same sex couple enter into a secular, legal marriage as authorized by the state as required by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. This couple joins a Catholic Church and seeks a “sacramental, religious” marriage. They are denied on the basis that under Catholic doctrine sacramental marriage is reserved for a man and a woman.

Perhaps the Church cannot be compelled, consistent with the First Amendment, to recognize this union sacramentally. But can the Administration and the IRS pull the particular Church’s tax exemption and that of the entire denomination, including its schools and charitable outreach?

It is probable that the current Administration, or a subsequent like-minded one, will take the position “You are entitled to your religious beliefs, but you will not sustain them with the support of tax exemptions.” By IRS regulation, any donations to these churches or their ministries would not be tax deductible. And the church would lose non-charitable 501(c) status. Its income above operating expenses would be taxable as ordinary income.

The objective is to starve the church into changing its doctrine or going out of existence. Without tax deductions contributions will drop. If any income is made over operating expenses, it will be taxed, leaving less to support schools, food distributions, shelters for the homeless. Those that choose to starve will cease to exist. The IRS will have accomplished what the lions in the Coliseum could not.

My point is not to pass judgment on this tax exemption issue. Some may support pulling tax exempt status as justifiable under the Due Process and Equal Protection rubric embraced by a majority of the Supreme Court this week. Others may consider it repulsive and contrary to the principles of the founding of this nation embodied in the First Amendment. What is at stake here is what say we the people will have, if any, in the resolution of this issue.

As matters stand, based on the Supreme Court’s decisions issued this week, the IRS and the Supreme Court, oblivious to the will of the people, will have the final say. The IRS will issue regulations pulling the tax exemption, under the guise of implementing the Internal Revenue Code, and the Supreme Court will pass on this implementation giving due deference to the IRS’s interpretation of the statute it has been charged to carry into effect.

Regardless of where you come out of the issue, the people must be heard. Congress should be clear. Amend the Internal Revenue Code to reject the pulling of the exemption or to authorize it. Congress should not take the cowardly way out of sitting by and doing nothing. We the people should not let Congress remain on the side lines of this debate. If the President uses the IRS to pull exemption, he or she should do so with the approval of the Congress or in direct defiance of Congress’s mandate. And what Congress does should reflect the will of we the people. The Supreme Court should make the decision framed by these clear lines drawn by the Congress and the President after the people have spoken and their voice has been heard.

But how? In 2016 we will have an election of a President, a third of the Senate, and the entire House of Representatives. Either way, we must know where the candidates stand on this issue. To the Presidential candidates, how will you direct the IRS? To Congressional candidates, will you support legislation supporting the continuation or the elimination of the exemption? If any candidate ignores or equivocates on this question, he or she is unworthy of our support.

Beware of outright lies. “If you like your health insurance, you can keep it.” ““I believe that marriage is the union between a man and a woman. Now, for me as a Christian — for me — for me as a Christian, it is also a sacred union. God’s in the mix.” Part of “keeping the Republic” is making elected officials pay for lies made to get elected by sending them home if they seek reelection. In our Republic, the end does not justify the means. Let it never be said again that a lack of transparency by our leaders is a virtue or that the American voter is stupid.

Benjamin Franklin would view with concern the events of this past week, not necessarily because of the content of decisions made, but because the decisions bypassed the serious consideration and debate contemplated by the government of, by, and for the people ordained by the Constitution.

We may still have a Republic, but we are losing it.