Showing posts with label Constitution. Show all posts
Showing posts with label Constitution. Show all posts

Tuesday, September 15, 2015

Dear Kim Davis: This Christian Says "You're 100% Wrong."

Dear Kim, I know you are presenting yourself as a victim of persecution: persecution of religious folk who simply want to excercse their faith, persecution by a totalitarian judiciary that is imposing law on average citizens, persecution by a vocal and strident gay minority who are insisting on violating your sincerely-held beliefs, conscience, and deepest religious convictions. Think Again.

First, let me introduce myself to you. I am a Christian. I am a Gay man. I am an attorney who fully embraces the civil liberties enshrined on our Constitution.

Throughout your protestations, you have made fools of the majority of Christians in this country, you have made fools of the people of Kentucky, and you have employed a tortured and innovative interpretation of Constitutional Rights.

You, Madam Clerk, insist that you are being denied your right to live out your faith. I call Balderdash.

No one is telling you to marry a woman. No one is telling that you must engage in homosexuality. In fact, no one is even telling you that you should change your mind, your beliefs, or your most sincerely held religious convictions.

But when you are acting as County Clerk, you are not acting as Kim Davis - you are acting as an agent of the Government.

The First Amendment has a long, time-honored and cherished history in this country. It reads, in part (in case you haven't actually read it) as follows:

Amendent I: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

Amendment XIV: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

Taken together, this is very simple: Under Amendment I, the federal government may not impose a religion upon the nation, nor may it prevent private citizens from exercising their religion. Under Amendment 14, the prohibitions imposed on the federal government are extended to State governments.

A lesson in civics, dear: Counties are administrative units of States. When you act as County Clerk, you are acting under the authority of the State - not as a private citizen. You are therefore bound by a Constitution which mandates that States must abide by the same rules as the federal government when it comes to citizen's rights. And what are our rights? To not have a particular religion and it's doctrine 'established' as official policy.

As a private citizen, you may believe as you wish, protest as you wish, worship as you wish, and even campaign for a Constitutional Amendment to overturn Marriage Equality.

As an agent of the State, you may not impose or establish a religious test on the citizens. It's very, very simple.

But I'll take it even further: As a Christian, you need to stop speaking for the Church, speaking for God, and making grand pronouncements about what you believe the Bible requires as if your position is Infallible In fact, dear, your statements are erroneous at best, and blasphemous at worst: you have presumed to speak for God on the issue.

Millions of Christians in this nation support same-sex marriage. Numerous denominations have endorsed same-sex marriage, ordination of gays and lesbians, and full GLBT equality. For you to presume to 'declare' what is or is not biblical, or Christian, or "God's Position" on the issue is the worst form of arrogance: you presume to speak on God's behalf. Shame on you.

Your approach is not supported legally, Constitutionally, or theologically.

It's time to retire from public life, consider the damage you have done to other Christians and Kentuckians by association, and reconsider your self-righteous, self-aggrandizing motivations.It's bad enough you have made a fool of yourself and a circus of Rowan County - but in addition, you have betrayed your faith, your God, your public trust, and your Constitution.


Friday, November 16, 2012

Why Churches Should NOT be Taxed

 Over the last year, I have gained many liberal readers who have supported my über-progressive positions on many issues: the environment, bank bailouts, marriage equality, war, and the surveillance of citizens to name a few.  

But this post is sure to piss off many of my liberal readers.  Nonetheless, this blog is not meant to be a liberal rubber stamp, but to use reasoned analysis to bring together both progressives and libertarians who fear the power of an authoritarian state and corporatism - and that means crossing swords with friends every once in a while.

Calls for the taxation of churches is not grounded in sound constitutional law, sound taxation procedure, or sound historical understanding: it is based solely on resentment against churches – specifically conservative churches – whose doctrines and members advocate for conservative causes.

1. The Constitutional Prohibition

The very first words in the First Amendment of the United States Constitution  read: 

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...”

The admonition here has two parts:  The US Government shall not take any action that establishes an official religion (or which advantages one religion over all the others), and the US Government shall pass no law that prevents people from worshiping in their chosen church.

It is not up to the government to decide what is good worship or bad worship, recognized churches vs unrecognized churches, good doctrine or bad doctrine:  the government’s role is to stay out of religion.  In 1970, the U S Supreme Court – by a decisive vote of 8-1 ruled that the Federal Government could not tax churches, as that would constitute undue government interference in the exercise of religion.

This notion has long legal precedence.  A unanimous Supreme Court noted in 1819 in McCulloch vs Maryland that “the power to tax is the power to destroy.” Any federal income tax levied on churches – depending on how that tax rate was structured and how that tax law was written – would possess the capability of destroying or bankrupting churches.  Worse, depending on the application of the law to individual churches, it would necessarily favor one denomination over another as church organizational structures, expenses, and revenue sources (tithes, donations, yard sales, mass cards) differ from church to synagogue to mosque.  The government is not permitted to favor one group over another.  

2.  IRS Regulations Prohibiting Political Involvement by Non-Profits

Many who wish to tax religious institutions point to IRS regulations which specifically prohibit all 501c3 Non-Profits from political engagement. They argue then, that those churches that get involved in politics should lose their tax exempt status. There are several glaring problems with this approach.

First, the IRS is a Johnny-come-lately.  Yes, their regulations say this, but there regulations may in fact violate the Constitutional provisions mentioned above. Churches were treated as tax-exempt entities in law, under the US Constitution, for more than 175 years before the IRS created that regulation.  The Constitution trumps regulatory body rules.  

In any event, this regulation only came into effect in 1954, the same year that “under God” was added to the Pledge of Allegiance.  It is a curious phenomenon that those who oppose God in public life often point to the fact that the “God” phrase in the Pledge is a very recent innovation..but conveniently forget that the IRS regulation is just as recent.

No IRS regulation can eliminate a Constitutional right – including the Freedom of Speech.  Anyone and Everyone in this nation has the right to engage in political commentary, and, as the recent election proved, they do. The right to speech is as fully engrained in our Constitution as the freedom of Religion….and that means we let our raucous democracy loose with political discourse.  There is a good reason that the IRS almost never goes after churches for violating this regulation: they would probably lose at the Supreme Court.

Remember, the IRS provision against political engagement applies not only to churches, but to all non-profits.

It applies to AIDs service organizations that testify at public hearings, requesting increased funding for those without health insurance.

It applies to Veteran’s Organizations lobbying city councils for increased services to the homeless.

It applies to Teachers Unions meeting with their state legislators when education budgets are cut.

It applies to the Environmental organizations when they advocate against genetically-modified food, the keystone pipeline, relaxed standards for deep-water drilling, and Arctic drilling.

You really want to strip taxes of their tax-exempt status because of their political involvement?  Better look around at all the other non-profits that exist in the same regulatory boat, my friends.

3. Churches already pay taxes.

Yes, that’s right.  The only tax levied by the federal government is Income Tax (discussed more fully below).  Other taxes: State Income Taxes, Sales Taxes, and Property Taxes – are levied by state and local governments.

Employees of religious organizations – organists, secretaries,  maintenance, cantors…already pay personal federal income tax and social security taxes on their wages.

On a state and local basis, churches can be asked to pay property taxes.  In New Hampshire, where thousands of acres of land are owned by church-operated summer camps, those churches pay both property tax on the camps and business income tax on the profit experienced by the camp. In other places, towns and municipalities place ‘assessments’ or fees for municipal services such as fire protection, water use, and trash collection.

But for most people calling for taxation, it is the issue of federal Income Taxes they wish to see addressed.

4. Basic Accounting 101 Suggests Churches Would Pay Nothing Under an Income Tax.

Think about your personal Income Tax for a second.
You place your gross income on the top line, and then you begin taking off ‘deductions’ – you, your spouse, your children, and then the standard exemption or the Schedule A that permits mortgage interest, charitable donations, and health expenditures.  At the bottom of your form, you pay tax on what’s left: NOT on your gross income, but on what was left after permissible deductions.  It’s quite common for a family making $75,000 in wages to actually pay tax on only $35,000 after all the deductions are subtracted.

Corporate Income Tax works the same way.  We do not tax companies based on the raw number of dollar bills that land in their cash register; we tax them on their PROFIT (revenue less expenses).  That means that corporations subtract their expenditures on labor, raw material, equipment, utilities, advertising, etc., before any tax is applied…because THAT is how an Income Tax functions.
Some cavalierly believe that a tax on churches would be a tax on gross donations.

Think again: an income tax on churches would be applied to Profit, not gross donations. And regardless of how much a church receives in donations, you can bet that just about all of it goes out in expenses: clergy salaries, musical instruments, food, charitable work, utilities, payments to diocesan offices, roof repairs, etc…and that means, given the experience of the vast majority of American churches, your income tax rate would be applied against a profit of….zero.  Such an effort would be a pyrrhic victory indeed: tax church profits, only to find that from an accounting perspective, there are no profits to tax.

And forget the idea of taxing gross donations: that would be like taxing raw register receipts, and treating churches this unique way would be a display of government hostility towards religion that would never pass Constitutional muster, regardless of who was sitting on the Court.

5. Liberals, Be Careful What You Ask For.

Our collective memories tend to be very, very short.

Most agitation for taxing churches comes from liberals who resent the money and the ‘power’ of conservative churches like the Roman Catholic Church, the Mormon Church, and a plethora of Fundamentalist Bible Churches who rail against every liberal cause.

But a brief walk through history shows that every great liberal victory was won because liberal churches mobilized en masse.
Do we forget that the Civil Rights movement and marches were organized by the Dr. Rev. Martin Luther King, Pastor of Ebeneezer Baptist Church in Atlanta and President of the Southern Christian Leadership Conference?  Have we forgotten that the voter registration drives conducted in the south in the 1960’s were organized in black churches?

Imagine if conservative, white southern governments thought they could destroy the civil rights movement by increasing taxes on small rural black churches, and then mercilessly taking them when property or income taxes weren’t forthcoming.  “The Power to tax is the power to destroy.”
 Women’s rights to vote, immigrant rights, union rights, the Abolitionist movement…all were spearheaded by churches. The most recent civil rights battle of our time – Marriage Equality – has seen Episcopal Bishops like the Rev. Gene Robinson using his clerical office to testify before state legislatures and encourage the Episcopal faithful to advocate for gay rights. Congregational churches, Reform Jewish Congregations, Quakers, and Unitarian-Universalists have all organized peace rallies, marriage equality campaigns, and immigrant right  initiatives.


As I wrote earlier, most of my liberal friends don’t want to see Shelters for Homeless LGBT Youth, or Environmental Organizations, or Black Churches driving voters to the polls to be taxed or lose their tax-exempt status.  

Rather, they want to use the heavy hand of government taxation to ‘punish’ those conservative churches with which they disagree.

And that, more than anything, would do violence to our Constitution, which requires an even-handed government approach to all religious groups.

The answer is not to find a way around the Constitution; the answer is to allow the free flow of ideas in a democracy, and out-organize and out-vote those with whom you disagree.

And history has shown us that we can do that.

Saturday, November 19, 2011

Peaceful UC Davis Students sitting on ground Pepper-Sprayed by Police; Call for Chacellor's Resignation

In yet one more incident of police state terrorism, students peacefully sitting on the ground were pepper-sprayed by police. The unbelievable footage of this raw abuse of authority was captured clearly on the below video:

The Assaulting Officer:

Lieutenant John Pike

Police around the nation have been arrogant and brutal in their efforts to squash growing protests. Officers, "Following Orders" is no longer an excuse. Take heed: Americans are not going to simply turn tail and run.

The U S. Declaration of Independence:

when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government

NH Constitution, Article 10 - Right of Revolution:

Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind. The Tennessee and North Carolina Constitutions say the same.

Police: Do you hear this? Those of us who were raised as patriotic Americans will NOT slink away into silent obedience in the face of tyranny.

18 November 2011

Linda P.B. Katehi,

I am a junior faculty member at UC Davis. I am an Assistant Professor in the Department of English, and I teach in the Program in Critical Theory and in Science & Technology Studies. I have a strong record of research, teaching, and service. I am currently a Board Member of the Davis Faculty Association. I have also taken an active role in supporting the student movement to defend public education on our campus and throughout the UC system. In a word: I am the sort of young faculty member, like many of my colleagues, this campus needs. I am an asset to the University of California at Davis.

You are not.

I write to you and to my colleagues for three reasons:

1) to express my outrage at the police brutality which occurred against students engaged in peaceful protest on the UC Davis campus today

2) to hold you accountable for this police brutality

3) to demand your immediate resignation

Today you ordered police onto our campus to clear student protesters from the quad. These were protesters who participated in a rally speaking out against tuition increases and police brutality on UC campuses on Tuesday—a rally that I organized, and which was endorsed by the Davis Faculty Association. These students attended that rally in response to a call for solidarity from students and faculty who were bludgeoned with batons, hospitalized, and arrested at UC Berkeley last week. In the highest tradition of non-violent civil disobedience, those protesters had linked arms and held their ground in defense of tents they set up beside Sproul Hall. In a gesture of solidarity with those students and faculty, and in solidarity with the national Occupy movement, students at UC Davis set up tents on the main quad. When you ordered police outfitted with riot helmets, brandishing batons and teargas guns to remove their tents today, those students sat down on the ground in a circle and linked arms to protect them.

What happened next?

Without any provocation whatsoever, other than the bodies of these students sitting where they were on the ground, with their arms linked, police pepper-sprayed students. Students remained on the ground, now writhing in pain, with their arms linked.

What happened next?

Police used batons to try to push the students apart. Those they could separate, they arrested, kneeling on their bodies and pushing their heads into the ground. Those they could not separate, they pepper-sprayed directly in the face, holding these students as they did so. When students covered their eyes with their clothing, police forced open their mouths and pepper-sprayed down their throats. Several of these students were hospitalized. Others are seriously injured. One of them, forty-five minutes after being pepper-sprayed down his throat, was still coughing up blood.

This is what happened. You are responsible for it.

You are responsible for it because this is what happens when UC Chancellors order police onto our campuses to disperse peaceful protesters through the use of force: students get hurt. Faculty get hurt. One of the most inspiring things (inspiring for those of us who care about students who assert their rights to free speech and peaceful assembly) about the demonstration in Berkeley on November 9 is that UC Berkeley faculty stood together with students, their arms linked together. Associate Professor of English Celeste Langan was grabbed by her hair, thrown on the ground, and arrested. Associate Professor Geoffrey O’Brien was injured by baton blows. Professor Robert Hass, former Poet Laureate of the United States, National Book Award and Pulitzer Prize winner, was also struck with a baton. These faculty stood together with students in solidarity, and they too were beaten and arrested by the police. In writing this letter, I stand together with those faculty and with the students they supported.

One week after this happened at UC Berkeley, you ordered police to clear tents from the quad at UC Davis. When students responded in the same way—linking arms and holding their ground—police also responded in the same way: with violent force. The fact is: the administration of UC campuses systematically uses police brutality to terrorize students and faculty, to crush political dissent on our campuses, and to suppress free speech and peaceful assembly. Many people know this. Many more people are learning it very quickly.

You are responsible for the police violence directed against students on the UC Davis quad on November 18, 2011. As I said, I am writing to hold you responsible and to demand your immediate resignation on these grounds.

On Wednesday November 16, you issued a letter by email to the campus community. In this letter, you discussed a hate crime which occurred at UC Davis on Sunday November 13. In this letter, you express concern about the safety of our students. You write, “it is particularly disturbing that such an act of intolerance should occur at a time when the campus community is working to create a safe and inviting space for all our students.” You write, “while these are turbulent economic times, as a campus community, we must all be committed to a safe, welcoming environment that advances our efforts to diversity and excellence at UC Davis.”

I will leave it to my colleagues and every reader of this letter to decide what poses a greater threat to “a safe and inviting space for all our students” or “a safe, welcoming environment” at UC Davis: 1) Setting up tents on the quad in solidarity with faculty and students brutalized by police at UC Berkeley? or 2) Sending in riot police to disperse students with batons, pepper-spray, and tear-gas guns, while those students sit peacefully on the ground with their arms linked? Is this what you have in mind when you refer to creating “a safe and inviting space?” Is this what you have in mind when you express commitment to “a safe, welcoming environment?”

I am writing to tell you in no uncertain terms that there must be space for protest on our campus. There must be space for political dissent on our campus. There must be space for civil disobedience on our campus. There must be space for students to assert their right to decide on the form of their protest, their dissent, and their civil disobedience—including the simple act of setting up tents in solidarity with other students who have done so. There must be space for protest and dissent, especially, when the object of protest and dissent is police brutality itself. You may not order police to forcefully disperse student protesters peacefully protesting police brutality. You may not do so. It is not an option available to you as the Chancellor of a UC campus. That is why I am calling for your immediate resignation.

Your words express concern for the safety of our students. Your actions express no concern whatsoever for the safety of our students. I deduce from this discrepancy that you are not, in fact, concerned about the safety of our students. Your actions directly threaten the safety of our students. And I want you to know that this is clear. It is clear to anyone who reads your campus emails concerning our “Principles of Community” and who also takes the time to inform themselves about your actions. You should bear in mind that when you send emails to the UC Davis community, you address a body of faculty and students who are well trained to see through rhetoric that evinces care for students while implicitly threatening them. I see through your rhetoric very clearly. You also write to a campus community that knows how to speak truth to power. That is what I am doing.

I call for your resignation because you are unfit to do your job. You are unfit to ensure the safety of students at UC Davis. In fact: you are the primary threat to the safety of students at UC Davis. As such, I call upon you to resign immediately.


Nathan Brown
Assistant Professor
Department of English
Program in Critical Theory
University of California at Davis


Wednesday, February 23, 2011

Can the President refuse to defend a law?

After it was announced that the Obama Administration would no longer defend DOMA in court, Republican Massachusetts Senator Scott Brown had the following comment today:

"...We can't have presidents deciding what laws are constitutional and what laws are not. That is a function of the judicial branch, not the executive."

Brown is echoing what many Republicans have said. He is also betraying his own ignorance of the American political system. As a sitting United States Senator, that is rather sad.

In reality, *no* branch of government has been designated the specific function of declaring laws unconstitutional - not even the Judiciary. While it is often said the Judiciary fills that role, the fact is that nowhere does the US Constitution authorize the Supreme Court to do so. The seed of that 'authority' was planted in 1803, when the Court decided in Marbury vs. Madison that a Congressionally-enacted law was invalid due to its unconstitutionality.

However, the development of that authority within the Judiciary does not mean that other branches of government are free to ignore issues on Constitutionality. When the President takes his oath of office, he specifically swears the following:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

The President takes an oath to defend the US Constitution. He is not defending the Constitution if he or his administration are trying to preserve laws which violate that same Constitution.

The error Scott Brown makes - and one which many critics of Obama's decision are making - is the adoption of a simplistic view of government that ignores the overriding importance of the concept of the separation and balance of powers between the three branches of government.

On a simple level, it is often said that the Legislature "makes" the laws, and the Executive "carries out the laws." But that view skews the balance of power and makes it appear as if the President is merely a servant or administrator to Congress, whose only function is to do as he is told. Such a view sees the Legislature as superior to the President, and able to order him about to carry out their orders.

That is NOT how the structure of our national government was envisioned. Rather, it was conceived as being comprised of three separate branches, co-equal, each providing checks and balances to the others...and deliberately inefficient and inexact in the exercise of its powers. The ability of one branch to "check" another branch is one of the most basic features of the American System.

In 1788, within months of the adoption of the Constitution, James Madison, quoting the great political philosopher Baron de Montesquieu, wrote in Federalist Paper No. 47,

"When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner."

In other words, when these two branches 'merge' - or when one branch of government has the authority both to create laws AND force them to be carried out - tyranny may result.

It IS the President's responsibility to defend the Constitution...just as it is the Legislature's responsibility, AND the Judiciary's responsibility. No branch of government is 'superior,' and none is merely a servant to carry out the wishes of the other.

We see this all the time in less controversial settings:

Congress passes a law, and the Supreme Court refuses to convict someone under it.

The President authorizes a program, and Congress refuses to authorize spending to carry it out.

A Legislature passes laws against smoking marijuana, and the Executive branch (Mayors, Police Departments) choose NOT to enforce that law during a huge rock concert.

A president nominates Judges and Cabinet Appointees, and the Senate refuses to vote them up or down.

This happens on a regular basis. There is nothing different in the present case. Congress passed a law, DOMA, that is clearly Unconstitutional on multiple levels. Several Courts have already held that DOMA is Unconstitutional. The President is merely carrying out his responsibilities under the US Constitution to defend that document against laws which violate both its letter and spirit. It is a messy system, but it is messy on purpose...and any effort to insist that the President merely do as Congress tells him is certainly as un-American as it gets.

Friday, February 27, 2009

District of Columbia representatives: an Entirely Unconstitutional Process.

This country continues, at breakneck pace, to destroy its Constitution and eviscerate the Rule of Law. Under Bush, it was done in the name of "National Security." Under Obama, it's done in the name of Populist Mob Rule.

The House of Representatives has voted to permit the non-voting representative from Washington, DC to have full voting rights as a member of Congress. It is argued that it is unfair that the District of Columbia's 592,000 people have no voice of their own in Congress.

I do not argue that point. However, granting these citizens a Representative requires more than Congressional Mob Rule in a fit of moral outrage: it requires a Constitutional Amendment.

Article I, Section 2 of the U. S. Constitution states:

"The House of Representatives shall be composed of Members chosen every second
Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of
twenty five Years, and been seven Years a Citizen of the United States, and who
shall not, when elected, be an Inhabitant of that State in which he shall be chosen."

The Constitution is clear that STATES have voting representatives in Congress. Not Districts, Not cities, Not territories.

If Washington DC, with 592,000 people, why not New York City with 8.3 million people? Why not Puerto Rico, with 4 million people?

When the District of Columbia sought the right to vote in Presidential elections, everyone understood that the Constitution only permitted Electors from the States to cast ballots for President. Appropriately, the nation adopted a Constitutional Amendment (the 23rd Amendment) in 1961 to permit DC residents to vote for President.

This is no different. If the residents of DC want to be represented in Congress, there is a clear process: Amend the Constituion, don't just ride roughshod over it.

Sunday, August 31, 2008

There is an old bit of prose about how the Nazis came for the Jews, the Gypsies, gays, the handicapped, etc., and when they finally came for 'me,' there was no left to help me.

I have been vigilant in this blog about pointing out the eradication of free speech and civil liberties in this country. Earlier this year, 400 children were kidnapped by the government in Texas, and the 'outcry' was little more than ho-hum. After all, they were polygamists, so "it doesnt affect me."

Well, right now, in Minnesota, hours before the Republican convention, there is a wholesale trashing of the Constitution taking place. Will anyone care? Or does it not concern people because the victims are young, protesting, liberal college students?

The full, breaking, and constantly-updated story (with video) can be found at

But the crux of the matter is this: 25-30 officers, in riot gears, stormed houses, forced residents to the floor, confiscated computers, and handcuffed and detained people for 'fire code violations,' all because they had planned to protest the Republican National Convention. Using an obscure, never-used law against conspiracy to start a riot, the government has found an effective law that basically preempts any protest or speech it doesnt want to hear.

Is this Beijing? Tiannamen Square? Does anyone remember the Chicago Police Riots of the 1969 Democratic Convention? The Kent State debacle? Have we learned nothing?

I call on McCain, as the Republican candidate, to forcefully condemn what is happening in Minnesota.

NOW, Today. And I call on my fellow citizens to stop yawning, since it isn't 'them' being carried away.