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Religious litmus test in Texas: unjust, unconstitutional
Inside the First Amendment

By Charles C. Haynes
First Amendment Center

It’s been a strange and scary week for religious liberty in the great state of Texas.

In September 2003, the office of Comptroller Carole Keeton Strayhorn denied tax exemption to the Unitarian Universalist Church in Denison, Texas. This fact was not revealed until last week, when the Fort Worth Star-Telegram learned of the decision. After few days of bad press in the newspaper, Strayhorn’s office announced May 24 that she had reversed the decision and granted the church tax-exempt status.

Nobody has paid much attention over the years as the comptroller turned down Wiccans, New Age groups and Freethinkers – not exactly popular groups down in Texas. But picking on Unitarian Universalists finally sparked some outrage.

After all, Unitarians and Universalists have been in the United States since the late 18th century (the two groups merged in 1961). If they can be denied recognition as a church, who’s next?

When Strayhorn’s office first denied exemption to the Denison church, a spokesman claimed that the congregation didn’t qualify because it “does not have one system of belief.” Well, exactly. The openness to people of many beliefs is what defines Unitarian Universalist churches.

Here’s the larger issue. While government officials must decide what is and isn’t a “church” for tax purposes, they may not do so by imposing religious or theological criteria. Some religious groups may have one system of belief, while others may not.

The Texas comptroller’s office has a bad habit of insisting on a religious test in order to qualify for exemption. A number of years ago, Strayhorn’s predecessor, John Sharp, decided to use a “Supreme Being test” to determine tax status. To qualify, groups have to have a belief in a “God, Gods, or higher power.”

Using that test, Sharp denied tax exemption to the Ethical Culture Fellowship of Austin in 1997. After years of litigation (carried forward more recently by Strayhorn), the Ethical Culture Fellowship won its tax exemption. The 3rd Texas District Court of Appeals found the comptroller’s test unconstitutional because it excluded “the whole range of belief systems that may, in our diverse and pluralistic society, merit the First Amendment’s protection.”

Does that mean the Ethical Culture group is a “religion”? Yes, because it has many of the elements that define traditional religious organizations such as a body of literature, ceremonial practices, regular meetings led by clergy, etc. In short, Ethical Culture functions in the lives of its members in ways analogous to more traditional religious groups. Whether or not members of Ethical Culture (or any other religious group) believe in one God, many gods or no gods is no business of the state.

As the 3rd District court pointed out, the comptroller may look at whether a group affirms a belief in a Supreme Being – but only as part of a broader inquiry into the practices and beliefs of the organization. Belief in a Supreme Being may not be the sole, or even the primary, test.

Consider the process used by the Internal Revenue Service. When deciding what constitutes a “church” under the federal tax code, the IRS is careful to avoid theological judgments or litmus tests. Fourteen factors play into the decision, ranging from “a distinct religious history” to “regular congregations” – and not all 14 need be present for a religious group to qualify. In other words, if it looks like a duck and quacks like a duck, then it is a duck for tax purposes.

Despite this reversal by Strayhorn in the case of the Unitarian Universalist Church, the comptroller appears determined to defend her religious tests to the bitter end. When the Texas Supreme Court ruled against her last month in the Ethical Culture case, she vowed to appeal all the way to the U.S. Supreme Court.

Strayhorn claims her fight to preserve the “Supreme Being test” is “about protecting the groups in Texas who truly deserve to be tax-exempt. Otherwise, any wannabe cult that dresses up and parades down Sixth Street on Halloween will be applying for an exemption.”

Putting aside how insulting this comment is to the Ethical Culture movement (which dates to 1889 and has congregations throughout the United States), Strayhorn must separate personal views about religion from her civic duty to use nonreligious criteria to determine whether an organization qualifies for exemption under the tax code.

We may differ on how to interpret the establishment clause of the First Amendment. But surely we can agree on this much: There must be no official orthodoxy anywhere in the United States of America – including Texas.

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