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New York Times’ Columnist Mark Oppenheimer On The Planned Parenthood Videos And Tax-Exempt Status For Churches

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I spent the third hour of today’s show with the New York Times’ religion columnist Mark Oppenheimer, talking about the tax exempt status of churches and the Planned parenthood videos:




HH: Morning glory and evening grace, America. It’s Hugh Hewitt. The breaking news, of course: Boeing believes that the 777 part that washed up on the island is, in fact, their own airplane— their 777 which would lead people to believe it’s the missing Malaysian airliner. More breaking news as it occurs. I’m so glad on my first day back from vacation to welcome back Mark Oppenheimer. He’s the New York Times religion columnist. He also writes for Time Magazine. He also has a new podcast out on Jewish religious issues. Mark, welcome back. How are you?

MO: I’m great! Thanks for having me. It’s your first day back and it’s one of my first days on vacation.

HH: Oh!

MO: …but for you… I’m off vacation.

HH: I’m glad! What is the new podcast?

MO: Uh, thanks for asking! I am an editor-at-large for a magazine called Tablet which is a Jewish arts and culture website at and we’ve started a podcast called Unorthodox. And it’s just discussing everything that concerns Jews or people who like Jews or people interested in Zionism. So it’s everything from what’s going on in Israel and Iran to the latest movie with Adam Sandler because he happens to be Jewish.

HH: Have you read–

MO: Everything is fair game.

HH: Have you read Michael Oren’s new book, Ally, yet?

MO: You know, I haven’t. I obviously followed his work for years, but I haven’t gotten to his book. Is it good?

HH: Oh, it’s terrific. And so–that–it’s unorthodox, and that’s why I’m hoping you’ll get to it. But let me ask those same before we turn to the subject at hand. I read on vacation your June 12th piece on Father McCloskey–he’s a friend of mine–Reverend C. John McCloskey, it shouldn’t surprise you that he’s a friend of mine. Very nicely done. An Opus Dei priest with a magnetic touch. I might see him in Palo Alto in a couple of weeks. I keep trying to run into him. I’ve only been able to see him Chicago and he did his tour of duty there. Have you agreed to go down in his retreat?

MO: Well, you know, he didn’t invite me, and actually wanted to go on one of his retreats. I can’t remember exactly [how] the conversation went, but I think I– if I’m not mistaken–I think I asked if I could, but I was in the midst of reporting and so I think they start like–I’d be going as a journalist and so they kind of thought that wasn’t a great idea which I understand, but–you know–I’d love to go sometime. I’d love to see the man at work.

HH: He’s… I’m afraid to go to them, I might have to change my life and I’m lazy. However, McCloskey along with Dolan and Chaput and now Gomez and soon Robert Barron, the new Archdiocese archbishop–a new Auxilliary Bishop of Los Angeles. Probably the most influential Roman Catholics at work in the United States and so–

MO: I think that Father McCloskey is certainly one of the four-five most influential Roman Catholics at work in the United States and it’s exactly right. It’s not just because of the people whose conversion he’s helped preside over, people like Robert Novak obviously or… well, I can’t remember if Robert Bork was one of them. But it’s also just because I think his retreats, as you mentioned, which are frequented by Washington power people and Wall Street people and, you know, people with a lot of influence. I think they have a multiplier effect that goes out well beyond just themselves so I think he’s a fascinating guy.

HH: So you are no longer afraid of Opus Dei and all the Da Vinci Code stuff?

MO: You know… so I’ve come clean and said I’ve never read the Da Vinci Code. And I probably never have been afraid of Opus Dei. You know, I written about Opus Dei twice and usually the response I get–and the first piece was about a high school that they helped run in Washington, D.C. called the Heights just outside of Washington. The other piece was about Father McCloskey, and each time, most of the mail I get tell me that I’m in the tank for Opus Dei. That I’m a show for Opus Dei. That I must be on their payroll because I’m not hard enough on them. And, you know, that’s an occupational hazard, but, you know, I think I’ve gone to learn about them. I don’t have any repercussions. I don’t think that [they’re] part of a worldwide conspiracy. I don’t know, do you have much experience with them?

HH: Only a little bit and I admire them greatly and I thought you’ve done a fair job. Now I though, want to turn to your plan to end all churches in America.

MO: Oh yeah. No, to actually end all religious people…

HH: Yep.

MO: …and send them, you know, send them to reeducation.

HH: See, your Time Magazine column from June 28th is titled “Now Is The Time To End Tax Exemptions For Religious Institutions.” That is it’s title, correct?

MO: It is it’s title.

HH: Alright. Did you have any hand in titling it?

MO: No, and I never bring that up because I don’t–it’s never my goal–so as you know, because you write as well and you do radio–all of these things are collaborative. I have no desire to throw anybody under the bus. Writers do not write their own headlines, but really well-intentioned expert professionals do, and I also have to stand by my title because, of course, the second I went up with that title… if I have seen objectionable about it, I could have called and had them change it so it’s a collab–I do not–I will say as matter–because I believe in truth and because you have to question, I will say, I happen not to write it as I don’t write any of my headlines.

HH: And I–

MO: Now that said, it is one of the things that a reasonable person could take away from the articles. By no means, the only one of the most important, but it certainly is the one that the conservative bloggers chose to focus on.

HH: And not just conservative bloggers, but intellectuals and professors and lawyers, etc. Although in the course of writing “Now is the time to ends exemptions for religious institutions,” you also called for ending tax-exemptions for not non-religious institutions–liberal and conservative–and I want to make sure everyone understands so that Mark’s position on tax-exemption is broad. However, at the end of it he also called for the Oppenheimer rule which is, he gets…

MO: (laughs)

HH: …to save them for any institution that he likes. Is that right?

MO: I don’t think I named it that or that I–so, like the Holy Roman Empire being neither Roman nor holy nor empire, I didn’t call it the Oppenheimer Rule. I didn’t say it had anything to do with what I like. But, obviously, what you mean to say is that I did say there should be some exceptions as with any thoughtful law. You wanna use, you know–what’s the expression–”you wanna use a hammer not an anvil” or something like that. But, in fact, the sentence where I talked about what possible exemptions might be I mentioned hospitals. That would be a terrible choice because as someone pointed out to me, a lot of hospitals are for-profit and so as a general category, there are many, many hospitals that don’t get the exemption. So–look–the point was, I did say that, of course, any thoughtful law carves out space for exemptions and any thoughtful reversal of precedence would carve out space for exemptions.

HH: So we don’t know what the Oppenheimer Rule is or who would apply it, but you do posit that there needs to be one.

MO: Well, you know, I’ve been thinking… so I have to thank all my friends including you who have pressed me on this. I mean, it was a seven or eight hundred word piece and it was not a dissertation, and there was a lot of ambiguity as there would be with any op-ed. And, boy I tell you (laughs), I thought I would have forgotten about the piece within a day or two and I’d go on to something big, but the world kept it alive for probably longer than any other piece I’ve written, and I’ve had a lot of time to think about it, and I’ve been caught daydreaming by my children and my wife when I’m supposed to be doing more important things than thinking about this one piece of writing, for which I made a few hundred dollars. But you know, one of the things that I have thought, that I have come up with in all that time is that I didn’t speak clearly enough about the distinction between the federal tax exemption and the local and state tax exemptions. One has to do with income taxes, the other category has a lot to do with property. And they are wildly different, and I feel very differently about both of them in ways that I could talk about.

HH: Now here’s where I, and I also want to point out, you are aware of people like my friend, Owen Strachan, and of Denny Burke, who’s also a professor at Boyce College, that they have written extensive critiques of your work and your column, correct?

MO: So I read Owen’s, and he and I actually had a long and I hope productive phone conversation. I actually reached out to him and said we should talk on the phone, and he couldn’t have been a more generous or gentlemanly fellow. But you know, I thought that he was less fair than you just were a few moments ago. You pointed out that it really wasn’t a column about religious institutions only. It was really about non-profits more broadly. That was something I thought that he did not really, was not really fair to in his column. But that said, we had a great conversation, and his is certainly one of the critiques people should go read if they want to see an example of someone who was made really angry by my column.

HH: Okay, but I also want to point out that I intend to chop you up into little tiny pieces by the end of this conversation, so I don’t want Owen to stand there thinking I’ve set him up, because I intend to be really delicately, scalpel-like effective in dismembering your argument here.

MO: It’s always our hope, I know.

HH: Okay, so I begin with this proposition. You work for the New York Times. If the federal government passed a law shutting down the New York Times, could they do that?

MO: Well, let’s back up for one second here. I’m a freelancer. I work for about 50 places. The New York Times is one of the many places where I do freelance work. At this point, I do one column a month for them. So if I worked, and I’m not saying this to distance myself from the Times, with which I have a proud and really gratifying relationship, and I’m really proud of the work I do for the Times. I just always want to, it’s really more so that people understand that I’m not on staff there, I don’t get benefits from them, I’m not a full-timer, I’m a freelance writer. I’m a, you know, journeyman. And so I write for Time, I write for the New York Times, I do radio work, I work for Tablet.

HH: Okay, so let’s talk about Tablet, the New York Times, and Time.

MO: Sure.

HH: Let’s say that the federal government passed a law shutting down Tablet, the New York Times and Time Magazine. Could they do that?

MO: I mean, it would, so probably not, right, because…

HH: Why?

MO: Well, I mean, you’re the Constitutional law expert. I imagine it would run afoul of, you know, an unreasonable taking, right? They have to have a reason to go take your stuff, right?

HH: No, it would run…

MO: It would have to be written into law in some way. But more importantly…

HH: No, Mark, Mark, time out.

MO: But more importantly, right…

HH: It runs afoul of the 1st Amendment.

MO: Right, well, I was going to say, so the second one I was going to get to is but more importantly, if they were going, if it was clear that they were pinpointing institutions of the free press, that would be the most important problem with that.

HH: Not only if it were clear, if it had any impact upon a free press, it would be unconstitutional under the 1st Amendment. When we come back from break, I’m going to explain to you why your proposition to end tax exemptions for religious institutions is unconstitutional, which is where the conversation should begin.

— – — –

HH: And he’s a good guy, and he comes on the show and he gets beat up here, and I do want to beat him up, but not really. I just want to actually change his mind on this. Your…

MO: Now wait a second. You know what would be awesome is if at the end of the show, both of our minds have changed a little.

HH: Now I’m correct. I don’t need to change anything. I have been studying this forever. Now let me begin…

MO: Okay, just to be clear…

HH: …with it. There are different kinds of organizations. There are religious organizations and non-religious organizations. For example, Planned Parenthood versus the Salvation Army, right? Planned Parenthood is secular, the Salvation Army is religious. Agreed?

MO: Yeah.

HH: Okay, have you watched the videos called “Human Capital” released by the

MO: I have not.

HH: You haven’t watched any of the Planned Parenthood videos?

MO: No. No. No. Have you?

HH: Mark, why not? Yes, I’ve watched two of four, and I was on vacation. I waited until this morning.

MO: I don’t know. I mean, Hugh, why haven’t you read Tablet? We’re doing really, really path-breaking journalism. But apparently you haven’t read it.

HH: But the Planned Parenthood videos are on the front page of every newspaper, they are causing great Sunday Show conversations, and they’re actually horrific.

MO: Yeah. I, you know, I have four children under the age of nine. I’m a really busy guy, and there’s a lot of things that you value that I don’t get to, and there are things that I value that you don’t get to. But I think you probably have a point you want to get to about the videos.

HH: Yeah, because they are a non-religious institution engaged in a horrific practice that I believe, I believe they’re finished after these videos. That’s one of the reasons why I think, Mark, you ought to watch them, as I believe they are done. Toast will come. They are finished. They are barbarians. It is an evil organization. If people watched these videos, they will say my God, they’re one step away from Auschwitz. At Auschwitz, they took the teeth and the gold and the body parts and the hair, and Planned Parenthood is selling, what were some of the things she said, the one who wanted the Lamborghini and the other woman, I mean, they’re really just genuinely horrific. If the government wants to take away the tax exempt status of an organization that is not religious, I have no problem with that. Neither do you, right? I mean, if they’re not religious, you and I agree that you can go after them and either give them a tax exempt status or not, correct?

MO: Right, well, my whole argument in the piece was that we have a nonsensical tax code. And I am grateful to conservatives who are always pointing out how ridiculous it is and how many loopholes there are that you can drive big Mack trucks through, right? And one of the big loopholes is the non-profit loophole that comprises religious and non-religious institutions. So yeah, I mean, my proposal initially had nothing to do with conservative churches or liberal churches. It had to do with non-profits, everything from American Atheists to the National Rifle Association. So I’m glad we agree on that much.

HH: Yeah, and I will agree that if you wanted to successfully lobby Congress to get rid of the tax exemption for the National Rifle Organization, you could do so. But here’s the…

MO: Right, well, but here…

HH: Here’s the key.

MO: If we’re both going to grow from this exchange, how would you feel, so let’s set aside the religious ones. Would you be okay, could we meet halfway and say to non-religious non-profits, it’s a nonsensical exemption, let’s get rid of that one?

HH: No, because there are lots of not for profits that do great good, much better than the government would do, and I don’t want to discourage giving to them. But nevertheless, I would argue as a matter of Constitutional law you could do it. Here’s the key thing.

MO: Yeah.

HH: I don’t think you’ve read Walz v. Tax Commission of the City of New York from 1970. Have you read the Walz case?

MO: Have you read Tablet?

HH: No.

MO: While we’re quizzing, while we’re setting each other up by quizzing each other on what we’ve read and haven’t read, it would be faster to just tell your listeners what it said.

HH: I just, but I want to begin, because when you, Walz is the cornerstone of the argument that the government cannot tax religious institutions.

MO: Okay.

HH: It’s the 1st Amendment.

MO: Okay.

HH: The Free Exercise Clause and the Establishment Clause and the narrow road between them, so Walz is cornerstone. My reading Tablet is not cornerstone to the conversation about whether or not one should tax or not tax.

MO: No, it would just improve your life. It would just make you happier.

HH: It might, and you’re very good at plugging it. You are the Donald Trump of writers for Tablet. Nevertheless…

MO: But wait, wait, I have much better hair than Donald Trump.

HH: You do, but you also are a good promoter.

MO: Have you seen me? Have you seen me?

HH: But Walz v. Tax Commission stands for the proposition that you can’t do what you advocated doing. It is unconstitutional to tax religious institutions. Your response?

MO: Okay, well, I haven’t read that decision, okay? There are two parts of the tax code as we talked about, right? One is the property taxes, and one is the federal one, right? Now why don’t you tell me and educate your listeners as well what did that decision say about that distinction?

HH: That decision didn’t say anything about that distinction. That decision said that the Free Exercise Clause supports not taxing religious institutions, and the Establishment Clause is not harmed by not taxing free…

MO: Okay, so you know, you’re taking me back to my days in graduate school when I was studying with Stephen Carter, who of course is one of the experts on this stuff. And we did read through all these cases. And one of the important things, as you know, because you do teach law, right?

HH: I do indeed. I teach Constitutional law.

MO: You do. You teach…and where?

HH: Chapman University Fowler School of Law.

MO: Okay, and you went to law school, right?

HH: Michigan Law School.

MO: Okay, Michigan Law. So one of the important things that I remember is of course, it’s very, very important to define the institution. What did that case have to say about what’s an institution? When you say religious institution, is that all the activities of the institution?

HH: It was the property taxes of the city of New York from which every religious institution was and remains exempt because of the operation of the Free Exercise Clause. But I believe that Professor Carter and every other serious 1st Amendment scholar will tell you it is unconstitutional to tax the property or the operations of churches in the United States that are churches.

MO: Right.

HH: Now the further you move…

MO: So wait a second, this gets to a really, really interesting thing, and I’d love to hear your answer to this, because I hope we both grow and we both change our minds a little bit during this show, right? So the Church of Scientology, religious institution?

HH: Cannot be taxed, yes.

MO: No, no, no, but do you believe it’s a religious institution?

HH: Yes, and I also believe that the Court is very clear that we cannot challenge those people who have a sincerely held religious belief. We can challenge, like the Tony and Susan Alamo Foundation whether or not they are sincere, and there are evidentiary ways to do that. But that’s a minor tail wagging the dog.

MO: Wait a second. Now wait a second. You’re pretending like oh, this is really easy, we can tell what’s a religious institution and what’s not.

HH: It is really easy. It is. It’s very easy. For the vast majority of churches in the United States, it’s remarkably easy.

MO: But for…but for…no.

HH: You and I can go along and go through a phone book, and 99.9% of the time, we will agree on what is religious and what is not.

MO: Okay, so there’s a couple of things I would say. Number one, and if you want to have me on a third time, I’ll go back and read that particular case that you’ve cherry-picked from a huge body of jurisprudence. But we can talk. I’ll go read it.

HH: It’s the most important, and it’s the first. I haven’t cherry-picked it. It’s the most, it’s like saying I cherry-picked Marbury v. Madison.

MO: Okay, okay, I’ll go back and read it. So I’ll go back and reread it and we can talk about it. But then the other thing is you have to go back and go through, as your part of the homework, and look at how much difficulty the IRS has had in cases like the IRS or Bob Jones in figuring out how to apply these laws, excuse me, the Scientology case or Bob Jones, and figure out how to apply these laws. They had to come up with a whole new matrix of rules just to figure out if Scientology was non-profit, in part because…

HH: But Mark, now this is, I’m not intending this as a critique. But you are a PhD, are you not?

MO: Now wait a second. Let’s not interrupt each other.

HH: But wait, you’re filibustering and I’ve got to get questions. This is an interview, not a debate. I just want to interview you. You are a PhD, right?

MO: I am.

HH: Yeah, the existence of a hard case does not mean that all cases are hard, correct?

MO: No, it doesn’t, of course not.

HH: So can you agree with me that 99.9% of the cases are easy?

MO: I’m not going to, no serious person would ever say absent, would put a number on it like that.

HH: Okay, how about 90% of the case are easy?

MO: But are a majority of cases, if you look specifically at the sincerely held belief part, sure. The majority of cases are easy.

HH: Not just majority, but be honest with me.

MO: But of course, well, wait a second.

HH: It’s not just majority.

MO: Hugh, okay…

HH: It’s like 99.9%. I’ll be right back.

— – – — –

HH: Mark, I’ve got to go back to something. I’m actually shocked you haven’t watched these Planned Parenthood videos, because they go to the central nature of your work.

MO: Wait, can I go back to something?

HH: Sure.

MO: …which is that one of the questions that of course the Court’s asked is, is this a sincerely held religious belief. The more important question is are they making a profit or not. If you want to be non-profit, one of the questions is are you making a profit. And some of these organizations like organizations in any sector of our economy, are fraudulent because we’ve sacralized this particular tax exemption and held it up as sacred and said we’re not even going to talk about it. A lot of these for profit institutions are essentially stealing your money and mine. Scientology is just the most famous of them. But here’s my question. If you were going to create a tax code from scratch, would you really create one that allows as many exceptions and as many loopholes as this one does?

HH: Yes.

MO: I mean, the NRA, the NFL?

HH: I absolutely would, and by the way, I don’t want to get off the question. The key question for this hour is whether or not religious institutions ought to be taxed, all right? It’s not the other institutions, because that’s a broad universe that would be interesting, and we can talk about it some other time. The reason that your article sparked controversy was the proposal to tax religious institutions. I am here to tell you that’s unconstitutional. It’s not a hard question, and that those questions in the gray area are few and far between like Scientology or Tony and Susan Alamo Foundation, and that that all should be known to you as a religion reporter. But I also…

MO: What…wait…

HH: I want to go back, now I get to go back.

MO: Okay.

HH: I’m shocked that you have not watched the Planned Parenthood videos.

MO: Okay.

HH: Do you believe it is possible for a government to operate on this basis, that we are going to allow good institutions to be exempt from taxes, and evil ones like Planned Parenthood not to be exempt from taxes? Will you trust a government to make those decisions?

MO: I, you know, this is, it’s interesting how much you and I agree on, right, because both of us are trying to get the government out of these decisions. And as we talked about a few weeks ago, and people should go back and listen to that conversation, I got a lot of nice email from your listeners about how much they learned during that conversation, right? One of the points I tried to make when you, and you cut me off when I was trying to make it, but one of the points I was trying to make is when religious institutions seek a tax exemption that they often invite government intrusion in. I don’t seek any tax exemptions in my life, and I’ve never been audited. It’s a nice way to keep the government out of my life. So you know, it’s, we’re actually after some of the same things, the lack of government intrusion.

HH: The difference is churches don’t need to seek tax exemptions because the Constitution protects them in the way that they protect your newspaper, your magazine and your podcast.

MO: No, it’s not, you know, it’s not…

HH: The 1st Amendment says…

MO: It’s not that simple. It’s not that simple.

HH: Oh, it is that simple. The government may not go near a church.

MO: Well, can we…

HH: It just can’t go there.

MO: Now you’re telling me to go near a church? Is that what you said?

HH: Yeah, the government cannot go into a church. And by the way, I’ve litigated these up and down California.

MO: Right.

HH: I’ve done pro bono work for churches for years. They can’t tell you how to design your church, they can do certain restrictions for safety which are very rare, few and far between and also over-litigated. They cannot steal your property and give it to a revenue-producing property in exchange for condemnation authority. There’s all sorts of stuff that protects churches.

MO: Hugh, you know what’s interesting? Remember I began by saying that one reason I love going on your show is that I always hope I’ll learn something, and maybe I’ll change my mind, and I invited you to open your heart to do the same, because I think, it’s certainly how I raise my children. It’s like in any conversation, maybe you’ll believe differently at the end, right? What’s interesting, and I said this at the beginning was I should have talked, made a bigger point of the distinction between the federal tax exemption and the local one. So your arguments, which I take seriously, do tend to go toward the local one. Even the Supreme Court case that you mentioned, you said had to do with local property taxes. I actually don’t see how any of it is a defense for the income tax exemption that people get when they donate to a non-profit.

HH: Because the 14th Amendment, this may go to just simple non-lawyering on your part. The 14th Amendment incorporated the 1st Amendment onto the states so that…

MO: No, no, no, I know, but the income tax exemption didn’t exist until we had a federal income tax and they wrote it into law.

HH: But they couldn’t, but here’s the deal.

MO: And it was statutory. It wasn’t Constitutional. It was statutory.

HH: I know, but they couldn’t have written it any other way, just like we can’t write any federal statute to close down newspapers, because the 1st Amendment exists to stop that. That’s what, you’re beginning from a proposition…

MO: So now wait a second. I don’t, I’ve never, let me ask you this, Professor. Has that ever, has a federal deduction, the line item deduction for religious giving ever been litigated? Do we know if it’s treated that way? Or are you just assuming that?

HH: No, I’m assuming that on the basis of Walz, because it’s essentially, no one would ever bring that, because it would get laughed out of court. It’s like my saying we can shut down the New York Times tomorrow. They would laugh me out of court.

MO: No, I mean, says Hugh, but I used to read bloggers who laughed at you. And then I actually went on your show and I realized Andrew Sullivan didn’t have the last word on Hugh Hewitt, right? I mean…

HH: No, but this isn’t me. This is Walz V. Tax Commission.

MO: We open our minds to different things.

HH: Call up Stephen Carter.

MO: So one of the things…

HH: If he’s your old professor, call up Professor Carter at Yale. He’s written some fine books.

MO: He has.

HH: He’s a terrific expert, and ask him can we tax churches? And he will tell you…

MO: Now wait a second, wait a second. But you just shifted the ground, because I said let’s talk about these, my whole point was that in the couple of weeks since I was last on your show, I’ve been thinking much more seriously that the more useful thing to do would be to get rid of, not for churches, but for all non-profits, and I want your listeners to hear that, all non-profits, the federal income tax deduction, which by the way is one of the courses that I will…

HH: Okay, we’ll come back after break, and I’ll tell you why you can’t do that, because it’s unconstitutional, Mark, and that’s what I want you to take away from this, is that you don’t have to think about things. You have to call up law professors and find out what’s Constitutional. I’ll be right back with Mark Oppenheimer.

— – – —

HH: And so I’m going to go back. I’m not going to be deterred. I’m going back to these Planned Parenthood videos.

MO: You’re going back to Planned Parenthood?

HH: Yeah. Mark, if you watched the fourth one, they talk about how they get so many second trimester abortions in every day, that ten percent or less are intact deliveries, they talk about naked eye determinations what they do with 17-18 week old abortion parts. They talk about covering up their profit motive by putting it under research, which gives us some overhang. They talk about, “we don’t want to get called on selling fetal parts across state lines.” They’re just genuinely evil people doing horrible things. By contrast, the Salvation Army works in 126 countries. In every country, and it’s a church. There are 15,000 churches in the Salvation Army. They have 183 health programs in 39 countries. They do amazing work all the way around the world, and in the 4,600 participating churches in the 2012-2013 compensation handbook on church staff, the average salary and benefits is $82,938. Nobody is getting a Lamborghini off of that. I want to know if you would agree that if I am right that your colleague, Professor Carter, tells you, Professor Stephen Carter of Yale tells you, you cannot tax either federally or state or locally churches that are churches, we’re not talking about parachurches, that you will write a column to that effect saying oops, I should have read my Constitution first?

MO: No, any more than you’re going to agree that you’re going to have me on to just talk about Tablet Magazine’s new podcast next week.

HH: Oh, I’ll be happy to do that.

MO: You know, because you and I…

HH: I’ll make that deal.

MO: …don’t let other people determine our work product, and I actually think there are probably more important stories.

HH: No, I’ll negotiate that with you.

MO: That’s okay. I was looking to have a nice summer with my kids, and then the conservative blogosphere went insane. And you know what was funny?

HH: Did it go insane? Or did it react to, let’s pause on that word.

MO: Wait a second. You know what’s funny?

HH: You said they went “insane.”

MO: You what what’s funny was that literally, I have not, and I know a lot of liberals as I know a lot of conservatives. I actually don’t know a single liberal who said yeah, let’s work on this. But the conservative direct mail people thought that saying that liberals were doing that would be a great way to scare up funds.

HH: I think that’s unfair.

MO: And I became part of…

HH: That’s so unfair.

MO: I became part of some direct, there was direct mail going out saying look at what Mark Oppenheimer says. They’re going to take away our tax exemption.

HH: Well, that’s because of the headline.

MO: And…because of what?

HH: The headline says now it’s the time to end exemptions for religious institutions.

MO: Right, but…

HH: I know you didn’t write it, but…

MO: And much, wait a second, but as much as I’ve been trying all my life to make national law by fiat, no one’s given me the power, yet.

HH: But that means when people use direct mail and they say here’s what the left wants to do next, look at this column in Time Magazine, Now’s the Time to End Exemptions for Religious Institutions, they are not “insane”, to use your term, are they, to jump to the conclusion that the left wants to end…

MO: Right, I actually don’t know a single person on the left who wants to.

HH: Oh, come on.

MO: Like who? Name one.

HH: I know lots of them. And, I will be happy to name them at the Human Rights Campaign that believes…

MO: Ah, be free…I actually don’t think you know any. I think it’s…

HH: I think the Human Rights Campaign…

MO: Just name one.

HH: I believe the Human Rights Campaign has taken that position.

MO: Can you name one person?

HH: Well, just the Human Rights Campaign has a lot of lawyers. I don’t want to attribute to any one of the lawyers.

MO: And if the Human Rights Campaign has taken that position, will you, has not taken that position, will you send out a tweet that you were wrong about that?

HH: Oh, absolutely.

MO: Because I don’t think that they have. And as I said, I actually don’t know of anyone who has taken that position.

HH: And so would you object to the…

MO: And that would shock me.

HH: Would you object to the Rubio, the Lee-Labrador law that will confirm in federal law that religious organizations may not have their tax exempt status revoked by the IRS because of their position on same sex marriage?

MO: What I said was, what I said was that if religious institutions, like all non-profits, care about not being meddled with, they would not want to have the tax exemption, because it’s an exception that invites the government to intrude.

HH: But that’s a non-responsive. If you ever get deposed, you know, you’re going to be there for 15 hours, because you don’t answer the questions.

MO: I actually, well, God willing, I’ll never get deposed.

HH: Oh, you will be eventually if you want to go after the 1st Amendment here the way you want to.

MO: You know…

HH: But go back to me and talk to me about Planned Parenthood.

MO: One of the…

HH: Talk to me about Planned Parenthood. Will you watch those videos?

MO: I mean, I’ll try. I have a lot on my plate, Hugh.

HH: I mean, they’re all 11-15 minutes. That’s a total of…

MO: So how much time am I signing up for?

HH: Less than an hour for the first four videos.

MO: Which is the most important one?

HH: I think the first and the fourth one. I can’t really decide between which is more horrific, but I think they’re all important. Will you do that?

MO: I’ll watch, so I’ll give you a half an hour. Will you listen to my first podcast?

HH: Oh, of course I will. Of course I will.

MO: So I’ll give you a half, so I’ll listen to one and four, and you’ll listen to Orthodox, and we’ll come back and we’ll talk more about it. I think that would be great. You know, one of the really interesting things, though, is you’re always trying to make this, I mean, I think you and I are probably both ex-high school debaters. I know I am, right? And you’re always trying to make it a black and white…

HH: I was extemp. It’s harder.

MO: Okay, so you’re always trying to make this a black and white thing. I mean, I have given my life to writing about religious institutions in part because I enjoy them and admire them. I’m very active in my own. And I really like religious people. I don’t, I didn’t get into this because I despise or want to undermine that community of people. In fact, it’s one that I’m basically part of, right? That said, when you’re talking about 99.999% this, and the Salvation Army that, I mean, you’re setting up these black and white issues. I think that the majority of religious institutions, that the majority of the work that the majority of institutions do is good. I also think that some of the work is not of use to the public. I think that there are some overpaid people, and I think that because of how we’ve enshrined them in our tax code, we never find out who they are.

HH: And so, what?

MO: And so that spreads more of the tax burden on the rest of us. It’s a tax on poor people, basically, poor and middle class people, because who itemizes their deductions? Middle class people and up.

HH: And so, that might, you’re absolutely, your economics are true if in fact that’s the case that it causes more taxes not to be collected. But if the Constitution says you may not collect taxes from people, you have to propose changing the Constitution, which by the way, you can. But I just want you to begin with the understanding our framers understand that religion was so important that we would not ever give them the tax…

MO: Religion, our founders had no notion…

HH: You’re interrupting me.

MO: Our founders had no notion of how a federal income tax would operate on any institution.

HH: But that’s the 14th Amendment.

MO: …or collect it.

HH: They never expected the federal government to get this big, and they would never have countenanced the federal government taxing religious institutions.

MO: Right, so they can’t, because they never expected any of this, and they didn’t expect a non-profit sector, they didn’t have that idea in mind.

HH: You have to propose…

MO: So for you to say that, I mean for you to invoke the framers is very, very convenient, but we haven’t the foggiest idea what Madison would have said about a non-profit sector’s tax code. So be honest.

HH: Oh, but we do. There’s, have you read Lynne Cheney’s new biography of James Madison?

MO: Lynne, I have not.

HH: We have a lot, we have quite a lot of understanding of what Madison and other framers, and Jefferson, and Hamilton and the rest of them sought about the religious sphere and how it ought to be free of interference from the federal government. Stick around, I’ll be right back with the final segment of today’s program. Mark Oppenheimer is my guest.

— – – —

HH: During the break, I was trying to figure out whether or not anyone from the Human Rights Campaign has called upon the destruction of the tax exemption for churches that fail to recognize same sex unions, and I reading a piece by Peter Reilly, who is a Forbes contributor, that seems to indicate that they have, but I will dive more deeply into that and get back to you. Mark, I want to go back to the Planned Parenthood thing. It’s the major issue, and this has got nothing to do with church tax issues.

MO: Why would you want to go back to it when we’ve already discussed it, and I haven’t even seen the videos?

HH: No, because I want to talk about a non-video related thing.

MO: I do the reading before I pontificate on anything.

HH: No, but I want to talk, it’s not related to the videos.

MO: Okay.

HH: A lot of the American media will not force themselves, and you’re in evidence of that, that you didn’t spring to the reading and in depth research of this about abortion, because they don’t want to think about it. How do you ever expect to be an effective religion columnist in a society that won’t talk openly about the most horrific things that it’s doing, which is this practice? I mean, in other words, how can you expect people to be serious about religion when the media isn’t serious about serious stuff connected to religion?

MO: So wait, so wait, so your question is how can I expect people to be serious about religion when the media’s not serious about abortion?

HH: Yes.

MO: I don’t, I couldn’t begin to unpack the logic of that question.

HH: Okay, let me try again.

MO: Could you try again?

HH: Abortion, I will try it again.

MO: Okay.

HH: Abortion is the most important moral issue today, especially late term abortion. It’s like the euthanasia of infants. You know, the difference between late term and post-birth abortions, and what we do with these parts, the most important moral issue of our day. And religions writers don’t write about it, because they’re uncomfortable, and they are overwhelming pro-choice. And I always use the terms that people want to be called – pro-choice or pro-life. The pro-life people believe that the religion writers don’t want to deal with this, because they are overwhelmingly pro-choice. Are you yourself pro-choice, Mark?

MO: Yeah, I am pro-choice. I should say, though, that you know, I actually just spent several, gosh, I spent a whole day and I spent several more on the phone with members of the Sisters of Life. Do you know who they are?

HH: Yeah, the Sisters of the Poor of the Sisters of Life?

MO: No, Sisters of Life.

HH: No, I don’t know them. No, I don’t know Sisters of Life.

MO: So, so I don’t know that particular law, and you don’t know about the most important pro-life women’s religious congregation in the world. It was founded by John Cardinal O’Connor in 1981, I want to say, specifically to have a pro-life mission. He felt that there needed to be an order of sisters, of women religious, of nuns, as people call them, right, that was specifically dedicated to the anti-abortion or the pro-life mission, right? And he founded them and they’ve grown wildly.

HH: That’s terrific.

MO: Okay, so I think it’s And I spent a day going from their convent in Stanford, Connecticut to the Bronx to Manhattan, where they take in unwed mothers. They allow them to stay there with their babies that they’ve carried to term. I mean, it’s actually something I’m extremely interested in.

HH: So that’s terrific.

MO: I just don’t think the litmus test is whether or not I’ve watched the Planned Parenthood videos, because interestingly, the Sisters of the Poor don’t spend a lot of time talking about abortion.

HH: Oh, but I think it is for a journalist. I’m not, my vocation isn’t ministry. My vocation is journalism. And for a journalist to write about religion in America without having watched these Planned Parenthood things, I think it’s malpractice, but we’ll talk about that when you come back to talk about the videos, and I talk about Tablet’s new podcast. I look forward to it, Mark Oppenheimer.

End of interview.


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