By Blair Scott
Several churches have filed a lawsuit against the city of Mission, Kansas. They are suing the city because a new fee, the “transportation utility fee” or “driveway tax,” is being equally imposed on the churches as it is on everyone else in the city. The churches are making the argument that the fee is actually a tax and that they are not supposed to pay taxes under the IRS’ 501(c)3 rules.
The irony in all of this is that the churches are suddenly in favor of the separation of church and state! Alliance Defense Fund lawyer Erik Stanley said, “It makes no sense to tax churches and to limit their ability to provide their services, and it does damage to the constitutional separation between church and state.”
This is the same ADL who prominently on their Religious Freedom section of their Web Page declare, “The ACLU’s attacks on religious freedom are more serious and widespread than you may think. In courtrooms and schoolrooms, offices and shops, public buildings and even churches… those who believe in God are increasingly threatened, punished, and silenced.” This is the same ADL that has defended church-state violations in the past all in the name of “Religious Freedom.”
So once again, we see a Christian organization defend the separation of church and state only when it suits them. The great thing about this is that Mr. Stanley acknowledges his selectiveness, “[The separation of church and state] is generally not an argument we would make, but there should be separation here.”
So there are actually two issues here: 1) is the “transportation utility fee” a tax, and 2) is taxing churches a violation of the separation of church and state?
The City of Mission argues that this is a fee and not a tax. Mayor Laura McConwell said, “It was just a fair way to spread the cost among those who are generating the traffic to help pay for the roads that you need to bring people in either for your business or for the churches or to people’s homes.”
The fee is based on figures from the Institute of Transportation Engineers, which calculates the number of trips a business, residence, or organization generates on the road. In other words, a church is likely to generate 5.8 vehicle trips per week for every seat in a pew. So the city takes that number and assigns a dollar amount and then extrapolates that out based on the number of members of a church or organization, average number of customers visiting a business, number of residents in a house, etc.
These fees are nothing new actually. Fees have been issued to residents, businesses, and organizations by cities in the past, such as sewage fees, fire protection fees, flooding control fees, etc. Churches in the past have not historically balked at these fees, and Robert Tuttle, a constitutional lawyer specializing in church-state issues at the George Washington University Law School suggests that this has more to do with church member donations being down because of the current economic downturn and that these fees are actually hitting the church wallets harder than they usually would.
Fees are a normal way for a city to supplement tax revenue. Fees are not taxes. If a citizen and business have to pay the fee and also feel the pinch in their wallet, churches should not be exempt.
Let’s pretend for a second that the fee actually is a tax. Is taxing the churches an actual violation of the separation of church and state? No. I would actually argue that not taxing the churches is a violation of the separation of church and state. What exempts them from taxation is not the Constitution, but the IRS’ 501(c)3 rules.
Tax-exempt status to churches and philanthropic organizations were first written into law by Congress from 1913 to 1918. It wasn’t until 1954 with the Revenue Act of 1954 that the current 501(c)3 tax code as we know it today came into existence.
There are two views on the Revenue Act of 1954 and why it was implemented. The Act was primarily pushed by Senator Lyndon B. Johnson. There are some Christians who believe that Johnson was not a friend of the church and was using the 501(c)3 to politically silence the churches. While I can understand why some Christians would feel this way, I could not find any evidence to substantiate the claim that Johnson pushed this legislation in order to politically silence churches.
In fact, Johnson pushed the Act through by arguing for the second view: that this was favoritism toward churches and gave them an exemption from taxation.
This is why many in the secular community feel that the 501(c)3 exemption should be removed from churches and they should pay their fair share of taxes. I’ll leave that argument for another time.
One thing is for sure, if the city of Cranford, New Jersey (where the headquarters of American Atheists is located) where to initiate such fees, we would do our part to help the city as long as the city made no exemptions for houses of worship: because that would be a violation of the separation of church and state.