OBA General Counsel Arrested

Shockwaves are running through the Oklahoma legal community today after it was revealed that Oklahoma Bar Association General Counsel Dan Murdock was arrested for sexual battery Saturday night in Oklahoma City. The story is being reported by local Oklahoma City media.

First, the fact that he has been arrested does not mean that he is guilty. It only means that an allegation has arisen sufficient for the officer to make an arrest.

Second, over the years Dan Murdock has, by virtue of his position as chief ethics enforcer of the OBA, ticked a lot of people off. The very fact that the recent Gassaway disbarment was mentioned in news reports of his arrest brings this fact into sharp focus and sets up the suspicion at least of a set up.

And third, lawyers and judges are particularly vulnerable to this type of incident. The very fact that a charge has been filed can ruin a career regardless of the guilt or innocence of the accused. In the minds of many, the fact that an accusation has been lodged is proof of its veracity regardless of the facts. Sadly, I advise my minister clients to never let themselves be alone in the same room with a woman not their wife or a minor just because of the frequency of this type of accusation.

The traditional strategy in cases like this has always been for the accused to let the system work and refuse to give their accusers credibility by responding to them. But, in this age of instant communications and cyber-lynching that strategy does not always work. Some public figures are fighting back. The classic example of this is local Judge Jesse Harris who just filed a libel suit against his accusers in a similar case.

The real problem here is that by mere proximity to dangerous and vindictive people, attorneys and judges open themselves up to this type of charge. Mere proximity to a misguided or dangerous person can open a public figure up to all sorts of mischief. False allegations of sexual misconduct are becoming the weapon of choice by some misguided folks these days.

Dan Murdock has practiced law for decades in Oklahoma. He has a good reputation both in the bar and with the public. He has a lot of friends and probably, because of his service as ethics prosecutor for the bar association, a lot of enemies. I don't know if he did it or not. I am comfortable waiting to see what the courts decide. I just hope that he isn't tried and found guilty in the court of public opinion before a verdict is reached based on the facts of the case.

The News Was So Bad ...

I have avoided blogging about the substantive legal cases and events that have transpired in the past few days. But, it is time to speak about these cases, briefly at least.

The United States Supreme Court recently ruled that enemy combatants in the custody of our military and intelligence agencies may have access to American civil courts for purposes of habeas corpus determination, etc. I don't think we now have a veteran serving on the high court or we would have had at least one justice say something to the effect of: "Very well my fellow justices. By your ivory tower logic and lofty aspirations you have crippled both our combat forces and our intelligence agencies to the point that they neither can nor will ever operate within the rules again. Dead men don't file politically motivated war crimes complaints or apply for habeas corpus and burn undercover intelligence operatives in the process. And there are still places all over the world to hide a prisoner, work on him until you get what you want and then dispose of him and for that matter there are plenty of discreet people willing to do it for a price. So, by your shortsighted actions and insistence upon meddling in a place where lawyers and judges do not belong, you have insured the effect that you hoped to avoid."

The California Supreme Court recently ruled that the gay marriage ban approved by a majority of California voters was unconstitutional and held that gay marriages could be performed in that state. The immediate effect in San Diego County was that fourteen county court employees who voiced religious objections to performing the ceremonies or participating in them will probably lose their jobs. So many court employees are objecting that the county government said that it could not offer them the reasonable accommodation of their religious beliefs that is their right under previous U.S. Supreme Court decisions. The long term effect is that there will be similar litigation all over the United States as gay couples travel to California to be married and then return to their home states and demand full recognition of their alleged "marriage" under the full faith and credit clause of the U.S. Constitution. My ethics professor in law school taught her classes that any candidate for the bar that did not approve of so called equal rights for homosexuals should not be allowed to practice law. That professor will soon be helping to select Oklahoma judges. So, it looks as though there may soon be no place in the court house for religious citizens who oppose so-called homosexual rights.

On a bright note, a Marine Corps judge dropped war crimes charges against Lt. Col. Jeffrey R. Chessani, citing undue political influence on the court martial process by members of the Marine Corp high command. Charges have already been dropped against most of the Marines involved in the so-called "Haditha Massacre." Chessani and his civilian attorneys with the Thomas More Law Center (an organization of which I am proud to be an affiliate attorney) are considering libel suits against members of congress who twisted the facts in this heartbreaking situation for political purposes. The bad news is that it looks as though the Marine Corps may appeal. The net effect of political witch hunts like this one is dead soldiers and Marines in the short term and an ineffective military in the long term. Over the years, I have talked to and read about dozens of career officers who resigned during the Clinton administration because they could no longer obey a draft dodging Commander in Chief that they did not respect and who did not respect them. If every American soldier and Marine is going to have to worry about being court martialled for killing the enemy in life or death situations like Haditha, then no one in their right mind will continue to serve, particularly, bright, aggressive career officers like Chessani. The net effect is that the courts are now doing to the American military the same thing that they have done to the American culture.

The Alliance Defense Fund is recruiting pastors to volunteer to endorse political candidates from the pulpit and thus generate legal challenges to existing IRS regulations, federal court cases and IRS operating procedures which forbid such activity. ADF Senior Counsel Erik Stanley makes a strong case that such activity is protected by the First Amendment. While I heartily endorse this project as the only way that current, very likely unconstitutional, IRS policies can be effectively challenged, I wish it was being done in an election year where there was a candidate that I, as a Christian, could feel comfortable endorsing. And, regardless of the candidates involved, I would advise local pastors to exercise caution until: (1) they are sure that their existing organizational documents, books and tax history will bear intense IRS scrutiny; (2) they fully understand the possible ramifications of their actions; and (3) they are absolutely sure that they have officially secured pro-bono (no cost) legal representation and are guaranteed full funding of the full cost of their defense.

I wish there was some clever way to summarize all of this and make a rational point. But, there isn't. A few years back, one of the most respected liberal constitutional law professors in the nation refused to release his always highly anticipated revised constitutional law text. The reason? This professor, one of the best minds in the legal profession, could make no sense of the current constitutional jurisprudence of the high court. Kennedy, the swing vote, is accused of being a legal existentialist, especially on First Amendment issues. I think Ann Coulter, quoting an un-named law professor said it better, "This is what happens when the swing justice is the dumb justice."

Nuff said.

In Defense of Rednecks ...

I am a redneck. And an Okie. My redneck Okie credentials are impeccable.

While I was born here in Tulsa, I was raised in rural Oklahoma on a hardscrabble farm. My parents were classic Okies. My mother's people were sharecroppers. My father got his social security number working for Twentieth Century Fox on the Oklahoma crew of the Grapes of Wrath. My Uncle John was an extra in the movie as was his car that Fox technicians "hillbillied" up for the classic scenes showing Okies leaving the land.

I lived in a humble house that people outside the culture probably looked down on but I drove a flashy new car and played an expensive guitar that would now be worth more than the original mortgage on the house. I still own that humble farm house and I am not one bit ashamed of it. My father worked hard to pay it off and it kept us warm and dry.

I made my first quarter picking cotton alongside my mother in an Arkansas River bottom cotton field where poor whites, blacks and Mexicans worked side by side to earn a few bucks a day. By the time I graduated from high school, I had worked in the fields on a regular basis as a hay hauler, a fence builder, a ranch hand and even a turkey breeding technician. Every summer my neck would burn a rich, dark brick red from constant exposure to the sun doing honest work in the fields.

The word redneck has become a pejorative of late, a liberal code word for racism and ignorance. And that is an undeserved insult. My redneck father was the most decent man I have ever known. He would never mistreat anyone and he was certainly not ignorant. He was not lazy. He worked himself into an early grave working both a day job and farming nights trying to "get ahead." And he was no coward. He had a handful of medals from WWII to prove his "moral fiber" including the Bronze Star for bravery. Describing the Okies of the 45th Division, Ernie Pyle once wrote,

"The men of Oklahoma are drawling and soft-spoken... Something of the purity of the soil seems to be in them.... An Oklahoman is straight and direct. He is slow to criticize and hard to anger, but once he is convinced of the wrong of something, brother, watch out."

There could not have been a better description of my father.

Once, upon hearing me use a slightly derogatory nickname for a local black man who was a bit of character, my mom sternly warned me, "God has given colored folks a terrible burden to carry. Don't you ever do anything to make that burden worse or take advantage of them."

Our house was humble but there were books everywhere. Classics, current works and trashy novels all occupied our bookshelves and we read them all. I read The Grapes of Wrath, John Gunther's Inside Europe, Mein Kampf and a biography of Douglas McArthur the summer I was ten.

My mother's people were musicians when they were not working so there was always music around the house and they taught me to play it from the time I was big enough to hold a guitar. You hear the same country blues and bluegrass music on PBS now and it is recognized as a classic American art form.

In his syndicated column today (link HERE), Paul Greenberg eloquently came to the defense of Rednecks, southern culture in general and southern language in particular:

Every time a perfectly good American word is lost, we are all deprived. And the cumulative effect is a life-destroying erosion of the language, which is sapped of its power, vitality and variety. Redneck an insult? Rednecks would only laugh at the idea - because rednecks are proud of who they are. That's why they can afford a sense of humor. In a world of anemic, self-censored, pre-washed, so-called commentary, their pride is refreshing.

Who are these rednecks anyway? One inadequate definition would be to say they're the descendants of the Scots-Irish who pushed the American frontier across first the Appalachians and then ever westward, spreading as far north as the hills of Pennsylvania and as far south and west as wide-open Texas, leaving their manners, speech and customs an indelible if often unremarked part of the American character.

Oh, yes, rednecks are also fighters. Which means that, ignored and snubbed in times of peace, or just patronized by those who think their very name an insult, they are always called on when the country's in real trouble. To this day, they are part of the backbone of the United States military. They are, in short, people to tie to. They will stand their ground, as America's enemies have discovered since 1776 and long before. They need no one to come to their defense, let alone shield them from their honest name. Yes, they can be touchy, but only about matters of honor.

Rednecks embrace simplicity as a welcome change from the kind of fraudulent sophistication you can hear at a click of the channel on television or on National Platitudinous Radio. But that doesn't make them simple. Quite the opposite. Their code is as involved as any Bedouin's, and maybe more so than the Southern gentleman's. Indeed, the two - gentleman and redneck - are part of the Southern whole, complementing and competing with each other, each half-envying, half-pitying the other but aware they share an indissoluble bond that involves the land, the language and whatever is the essence of what the South is, or was. Both may now be endangered species, united by what they are not: false.

Those who object to the name redneck, if not the species itself, might as well take offense at Arkie or Okie or black or Creole. Hasn't the Southern language lost enough distinctive words, and therefore distinctive thought, to the bowdlerizers, the euphemizers and sanitizers who would leave the treasure of the Southern tongue as barren and burned-over as the once green acres Sherman ravaged on his march to the sea? Enough verbicide. The toll has already been too heavy. Let's not lose a word that sums up a whole ethos.

I wish I had said that.

This Blog Was Just "Crawled"

For the past one hour, fifty two minutes and forty eight seconds someone in Durant, Oklahoma appears to have been "crawling" my blog. This crawl was unusual in that it appears to have been done manually. Because of the amount of information involved, I don't believe they had time to read everything so it looks as though they may have been manually downloading the blog contents.

Recently, I noticed limited activity on the blog from the U.S. Justice Department and after I "outed" that activity I noticed very similar activity from a commercial contractor. But, this is not unusual for bloggers who regularly post on political issues.

However, if any other Oklahoma political bloggers have noticed this type of activity from a user connected to the net through ISP James Cable Partners, L.P., Durant, Oklahoma IP address: 70.247.84.241 please contact me offline at -- flash6453@mypacks.net --.

Charges Dismissed Against Former Wagoner County DA

Former Wagoner County District Attorney Richard Gray was cleared of embezzlement charges this week by an Okmulgee County court. Judge Michael Claver granted a mistrial over problems with the chain of evidence for key exhibits. The charges were dismissed with prejudice and cannot be refiled.

In a copyrighted story in the Tulsa World (link HERE), Gray's attorney, Clark Brewster said, " "I've never seen a case so bad as this one. It was completely frivolous. This man went through a tremendous amount of character attacks."

In that same story Gray said, " "I'm extremely excited about the verdict," he said. "The only thing that upset me was I wasn't given an opportunity to prove how corrupt the investigation" by the Attorney General's Office was. Gray (also) said his defense would have pointed to others' guilt and shown a connection to law enforcement.

However the Muskogee Phoenix was not so kind. In a copyrighted story titled "Not Office Material," The Phoenix led with this broadside, "Richard Gray’s embezzlement case may have been dismissed, but that doesn’t make Gray qualified for office," and continued "However, one thing is clear — if Gray runs for office again, which he said he might, voters ought to remember not the dismissed charges, but his record." (Link to story HERE.)

Apparently not satisfied with the hell this man and his family have already been through, the Phoenix obviously wants to drive a stake through the heart of Gray's career should he dare to try to return to public life. I guess The Phoenix expected him to slink out of town in disgrace and take a job as night janitor someplace far away.

I don't know what happened in the Wagoner County DA's office and I don't think The Muskogee Phoenix does either. Things happen in a court house that civilians will never understand. But, I do know the judge who dismissed Gray's case, Michael Claver. He is an ex-cop and an ex-ADA. He has a reputation for being a law and order judge that is tough on drug defendants. Claver said that this was the first time he had ever taken a case away from a jury but felt sure that they would have reached the same conclusion given the evidence presented.

In this case, Gray has been cleared in a court of law and deserves the right to get on with his life without mean spirited, partisan sniping by the region's most influential newspaper.

Same Sex Marriage = Persecution

The following is an edited version of an article appearing in this weeks National Catholic Register. The full article can be found HERE.

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Same-Sex ‘Marriage’ and the Persecution of Civil Society

BY JENNIFER ROBACK MORSE

June 8-14, 2008 Issue | Posted 6/3/08 at 10:48 AM

Advocates of same-sex “marriage” present the idea as a step forward for tolerance and respect. But recent developments place that interpretation very much in doubt.

Legalizing same-sex “marriage” is not a stand-alone policy, independent of all the other activities of the state. Once governments assert that same-sex unions are the equivalent of marriage, those governments must defend and enforce a whole host of other social changes.

Unfortunately, these government-enforced changes conflict with a wide array of ordinary liberties, including religious freedom and ordinary private property rights.

It began with the persecution of Catholic Charities in Boston. The archdiocese eventually closed down its adoption program, because the state of Massachusetts insisted that every adoption agency in the state must allow same-sex couples to adopt.

Recently, a Methodist organization in New Jersey lost part of its tax-exempt status because it refused to allow two lesbian couples to use their facility for a civil union ceremony. In Quebec, a Mennonite school was informed that it must conform to the official provincial curriculum, which includes teaching homosexuality as an acceptable alternative lifestyle.

At last report, the Mennonites were considering leaving the province rather than permit the imposition of the state-sponsored curriculum on their children.

And recently, a wedding photographer in New Mexico faces a hearing with the state’s Human Rights Commission because she declined the business of a lesbian couple. She didn’t want to take photos of their commitment ceremony.

The underlying pattern is unmistakable. Legalizing same-sex “marriage” has brought in its wake state regulation of other parts of society. The problem is sometimes presented as an issue of religious freedom, and so, in part, it is. But the issue runs deeper than religious freedom.

McGill University professor Douglas Farrow argues in his book A Nation of Bastards that redefining marriage allows the government to colonize all of civil society.

If same-sex couples can marry each other, they should be allowed to adopt. Anyone who says otherwise is acting against the policy of the state. If same-sex couples can have civil unions, then denying them the use of any facility they want for their ceremony amounts to unlawful discrimination. When the state says that same sex couples are equivalent to opposite-sex couples, school curriculum will inevitably have to support this claim. (snip) ....

The state must create parentage for the same-sex couple. For the opposite-sex couple, the state merely recognizes parentage.

In her essay in The Meaning of Marriage, Seana Sugrue argues that the state must coddle and protect same-sex “marriage” in ways that opposite-sex marriage does not require.

Precisely because same-sex unions are not the same as opposite-sex marriage, the state must intervene to make people believe (or at least make them act as if they believe) that the two types of unions are equivalent.

Public schools in California are soon going to be required to be “gay friendly.” A doctor has been sued because she didn’t want to perform an artificial insemination on a lesbian couple. A private school is in trouble for disciplining two female students for kissing. All in the name of supporting the rights of same-sex couples to “equality” with straight couples.

The fact that opposite- and same-sex couples are different in significant ways means that there will always be scope for the state to expand its reach into more and more private areas of more and more people’s lives.

Perhaps some people think it is okay to shut down Catholic adoption agencies, because the Catholics have it coming to them: The Church’s enemies are many. Perhaps some people don’t care for Methodists, and don’t care whether they lose their tax-exempt status.

But the Mennonites? These are the most inoffensive people on the planet. They have been pacifists for centuries. Their continued existence here in North America is a testimony to the strength of our ideals of religious tolerance and pluralism, in all the best senses of those terms. But now, in the name of equality of same-sex couples, the Mennonites are being driven out of Quebec.

Perhaps you think people have a natural civil right to marry the person of their choosing. But can you really force yourself to believe that wedding photography is a civil right?

Maybe you believe that same-sex couples are entitled to have children, somehow. But is any doctor they might encounter required to inseminate them?

Advocates of same-sex “marriage” insist that theirs is a modest reform: a mere expansion of marriage to include people currently excluded. But the price of same-sex “marriage” is a reduction in tolerance for everyone else, and an expansion of the power of the state.

Jennifer Roback Morse is the senior fellow in economics at the Acton Institute and the author of Love and Economics: It Takes a Family to Raise a Village, newly reissued in paperback.

The System Isn't Working ...

Recently, Judge Robin Cauthron of the United States District Court for the Western District of Oklahoma granted a temporary injunction halting enforcement of key provisions of House Bill 1804 stating that opponents of HB 1804 stood a strong likelihood of success in their lawsuit challenging the popular legislation's constitutionality. Ironically, this was done in the same week that President George Bush issued an executive order calling for almost identical provisions for Federal contractors.

And, Oklahoma's Defense of Marriage Act and Constitutional Amendment, passed by seventy six percent of Oklahomans, has been under legal attack since its passage. These legal challenges continue despite the fact that the language of Oklahoma's DOMA very closely tracks similar federal legislation which has been held constitutional to date.

You have to ask yourself at some point, why bother? Oklahoma voters can spend vast amounts of time and money electing good legislators. They can then spend even more time and money shepherding good bills through the legislature. But, that is not the end of the story. If the money and legal talent is not available to support the inevitable legal challenges to that legislation then all of the time and money has been wasted. Make no mistake, powerful political and business forces are at work to defeat H.B. 1804. Powerful social and political forces are at work to defeat Oklahoma's DOMA. They are both literally pouring money into very powerful law firms to achieve their goals. And, they are winning.

And, not to be outdone by the courts, Governor Brad Henry vetoed Rep. Sally Kern's legislation which would have codified into Oklahoma state law U.S. constitutional protections for religious students in public schools. This legislation, patterned after successful litigation in Texas, was designed to prevent unnecessary litigation on religious rights issues that have already been decided by the Federal courts.

Inexplicably, Henry vetoed the bill on the grounds that it would cause more litigation rather than prevent it. What Henry's veto actually did was assure that every Oklahoma case would have to be litigated for a Christian student to exercise civil rights already granted to them by the U.S. Constitution and existing federal court decisions. But, (1) there are few Christian civil rights attorneys and no Christian civil rights firms in Oklahoma; (2) the expenses of civil rights litigation are out of reach for almost all Oklahoma citizens; and (3) the costs of travel, long travel times and poor airline connections make Oklahoma an unattractive venue for this type of suit by national Christian civil rights firms who work pro-bono. And, on the other side of the fence, the ACLU, the organization usually responsible for threats of litigation against a school district should a Christian decide to speak up there, has just secured a new funding package in excess of two hundred million dollars, much of it to be spent on cases just like this. So, what Governor Henry actually did was ensure that the liberal, ACLU interpretation of the First Amendment will be followed in Oklahoma regardless of court decisions to the contrary and thus enact a defacto denial of existing constitutional rights to religious public school students.

As of this moment, June 10, 2008, it is totally facetious to expect that any act of the Oklahoma legislature will actually become law if it is found offensive by liberal political or large corporate commercial interests. These people know how to work the system as it actually exists. The political system as we know it isn't working for conservative causes. It's time for conservatives to recognize that fact and start acting accordingly.

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Postcript: From the Family Research Council, June 11, 2008:

The heartland is poised to get some religious heartburn, courtesy of the American Civil Liberties Union (ACLU) and mega-donor George Soros. The organization best known for suing its way to Christian suppression has its eyes on some prime conservative real estate in its $335 million local expansion. Knowing that the biggest battles may soon be fought on the smallest scales, these agents of social injustice plan to "build a civil liberties infrastructure in the middle of the country," bringing with it a radical agenda of homosexual rights, unlimited abortion, the extinction of the traditional family, and secularism. Hoping to add new offices in the battleground states of Michigan, Texas, Florida, Missouri, Mississippi, Montana, New Mexico, and Tennessee, the ACLU has already raised the majority of the funding needed to accomplish its national campaign. With overflowing bank accounts, taxpayer dollars from attorney fees in Establishment Clause cases, and offices in key red states, the ACLU will be a formidable force. The organization's executive director, Anthony Romero, wasn't coy about the far Left's intent. "If Republicans lose control of Congress and the White House, we can be sure the religious right will be much more active on the state level--our work will be critical there." By "our work," Romero must have been referring to the ACLU's efforts to persecute Christians and bully Americans into abandoning their moral beliefs. Now that Soros aims on bringing legal intimidation to our backyards, it is vital that we respond by stepping up our efforts. As the ACLU goes on the prowl in your state, please consider how you can help FRC fight back. To protect your hometown from the ACLU's family and faith onslaught, donate today at www.frc.org.

Judge Graves Concerned About Homosexual Agenda In Changes to Code of Judicial Conduct

Oklahoma City District Judge Bill Graves has spoken out on proposed changes to the Oklahoma Code of Judicial Conduct stating:

"These policies are not based on laws enacted by Congress or the State Legislature, but on proposals of the liberal, pro-homosexual American Bar Association,"

A link to his letter to the Oklahoma Bar Association Bench & Bar Committee is HERE. A link to coverage of the letter is in the Journal of the American Bar Association is HERE. A link to Associated Press coverage of the letter can be found HERE.

This is really not a new subject. Other versions of the same issue have been playing out for months or even years. The Court Clerk of the Cherokee Nation has been involved in rancorous litigation concerning an improperly granted Cherokee same-sex marriage license for several years. A Tulsa Judge resigned from the bench after mistakenly granting a same sex divorce that generated litigation currently before the Oklahoma Supreme Court. Similar legal battles have been going on across the nation in other states for the past several years.

Last week, so many California court employees in some counties voiced objection to performing or participating in so called gay civil marriages that some of those counties have said they cannot offer the "reasonable accommodation" these religious employees are legally entitled to. While there is almost certain to be lengthy and rancorous litigation on this issue, an adverse ruling by the California courts will mean that religious employees of the California court system who cannot in good conscience participate in so called "gay marriages" will be excluded from employment. In short, there will be a defacto religious test for California court employees.

Further, some California county governments are reportedly making plans to cease performing marriages or issuing licenses. This is also not new. Religious leaders of the Cherokee Nation, facing the same situation last year, proposed a referendum rescinding the power of the Cherokee tribal government to grant marriage licenses if the Cherokee Courts rule in favor of gay marriage.

Seventy six percent of Oklahoma voters voiced disapproval of so called gay marriage by voting for Oklahoma's Defense of Marriage Act and related marriage amendment. Under most people's understanding of democratic government by majority rule, that should have been the end of the issue. However, in Lawrence v. Texas, the United States Supreme Court effectively said that the will of the people is not a consideration when it comes to the homosexual agenda holding:

...the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice...

Frightening words. Very frightening words. In a letter to Thomas Ritchie, Dec. 25, 1820 Thomas Jefferson said:

“A judiciary independent of a king or executive alone, is a good thing; but independence of the will of the nation is a solecism (mistake or absurdity), at least in a republican government.”

* * * * * *

Related Posts:

Comments Before OBA Bench & Bar Committee Regarding the Proposed Code of Judicial Conduct. Link HERE.

Judge Bill Graves - Connect the Dots. Link HERE.

Judge Bill Graves - Connect the Dots Part II. Link HERE.

On Church Myths, Deductions and Elections ...

I have been involved in an interesting discussion with my fellow Christian civil rights attorneys about the tax exempt status of so-called “sovereign” and/or "unorganized" or "unincorporated" churches that choose not to apply for 501(c)(3) tax exempt status.

It is absolutely true that there is no legal requirement that a body of believers acquire any government license or legal recognition to meet and associate. Christians are free to meet, associate and speak as they choose without any special approval by a government agency. But, tax exempt status is another matter.

While the IRS does not require churches to apply for tax exempt aka 501(c)(3) status, it does not follow that the church is not obliged to follow the tax code, especially concerning tax exempt status and charitable deductions. 501(c)(3) applications to the IRS simply authorize the IRS to issue a letter recognizing and clarifying an already existing state of existence for churches who choose to be tax exempt. However, the fact that a church has not applied for 501(c)(3) exemption does not mean that it has “opted out” of compliance with the tax code. Rather, 501(c)(3) status is automatically imputed to churches who accept tax exempt status without application.

The Internal Revenue Code, including § 501(c)(3), is part of the United States Code and is a generally applicable law of the land. The constitutional rights to free speech, free association and the free exercise of religion do not exempt churches or individual citizens from obedience to the generally applicable law of the land. Employment Div. v. Smith, 494 U. S. 872, 881. While Smith specifically addresses obedience of the tax code in the text of that decision, a subsequent decision, U.S. v. Indianapolis Baptist Temple, 224 F.3d 627 (7th Cir. 2000, cert denied. US 2001) made it abundantly clear that churches are not exempt from the tax code, holding:

… there is no basis under either the Free Exercise Clause or the Establishment Clause for the argument that neutral, generally applicable, minimally intrusive tax laws (like the ones at issue here) cannot be applied to religious organizations.

This decision also made it abundantly clear that the courts and the IRS are free to treat a church as the legal entity that closest describes its operation regardless of the church’s organizational statements to the contrary:

… IBT takes issue with the district court's characterization of it as an unincorporated religious society under Indiana law. IBT contends that it is a "New Testament Church," not an unincorporated religious society, and that by characterizing it as such an entity, the district court "established" a state church and imposed on IBT a form of worship contrary to its beliefs. The district court did neither of these things. It simply described the legal (not religious) nature of an already existing church

So, to clear up a couple of popular myths about church organizations, churches are not exempt from generally applicable laws of the land and those churches which accept federal tax exempt status are 501(c)(3) exempt organizations in the eyes of the law whether they have formally applied for that status or not. Further, the courts are free to treat them as 501(c)(3) organizations for the purposes of determining their eligibility for tax exempt status and may also treat them as the legal business entity (usually an unincorporated association) that most closely describes their method of operation regardless of their organizational statements to the contrary.

While generally, a donor's receipt provided by the church that includes the church name, address, the donor's name, amount donated and a statement that it was an exchange for intangible religious benefits is sufficient to meet the legal standard for a religious charitable donation, it is also true that:

… deductions are a matter of legislative grace, and that taxpayers must satisfy the specific statutory requirements for the deductions they claim. Davis v. Commissioner [Dec. 40,564], 81 T.C. 806, 815 (1983), affd. without published opinion 767 F.2d 931 (9th Cir. 1985). Taxpayers bear the burden of proving their entitlement to the deductions they claim. Welch v. Helvering [3 USTC ¶ 1164], 290 U.S. 111 (1933); Rule 142(a). A deduction is allowable under the provisions of section 170 when a contribution or gift is made to a qualified organization …

Bullock v.Commissioner, 56 T.C.M. (CCH) 636, T.C. Memo. 1988-526.

In order to be entitled to a deduction under section 170(a), petitioner must prove that the Church qualified under section 170(c)(2).

Beall v. Commissioner, 46 T.C.M. (CCH) 74., T.C. Memo. 1983-252. In short, for the deduction to be allowable by the donor, the church must conform to the Internal Revenue Code provisions for 501(c)(3) organizations. Disallowed deductions in turn create a second level of scrutiny and accountability for the church by the both the donor and the IRS. While there is usually no penalty for the disallowed deduction to the church, only to the donor, other considerations do come into play. The following is a text book example of actual fraud taken from a pastor education program taught by the Christian Law Association:

A pastor declares that “all contributions are tax deductible because the church meets the qualifications (for tax exempt status) of IRC § 501 (c)(3) even though the pastor has no idea if the church qualifies for federal tax exempt status. The donor is audited, the church is deficient in its § 501(c)(3) qualifications and the donors (deductions for) contributions are denied resulting in additional taxes and penalties to the donor.

This legal scenario is going to be very important in the weeks and months to follow in that both presidential candidates are firm advocates of much more restrictive enforcement of the Internal Revenue Code concerning religious organizations. We have already seen examples both nationally and here in Oklahoma of opposition political groups monitoring the activities of conservative churches for the purpose of challenging their tax exempt status. A maliciously donated twenty dollar check in the offering plate could cost tens of thousands of dollars in legal fees as well as cause great embarrassment to both the church and its staff. Recognizing this, several national Christian civil rights legal firms are gearing up for litigation on this issue.

In actuality, tax exempt churches possess much broader legal rights to expression on political, legislative and social issues than most pastors are comfortable exercising. Pastors and church people alike should make themselves familiar with these rights and exercise them. The Alliance Defense Fund issued a “Dear Pastor” letter in 2006 which clearly outlines these rights. A link to that letter is HERE. But, those constitutional rights have limits. Liberty Counsel has produced an excellent checklist of political activities tax exempt organizations may and may not do. A link to that list is found HERE and an excellent letter can be found HERE. But, be careful to read the fine print. Many activities are limited to the 5% "insubstantial part of the operation as a whole" ceiling under previous cases and rulings. And of course, there is substantial disagreement with these positions. The position of Americans United for Separation of Church and State can be found HERE. Notice that there is no substantial disagreement on what the law says about political activities by tax exempt organizations only broad differences in its application.

Reading all of this together, it is obvious that: (1) pastors and churches have far broader constitutional rights to political expression under the IRC than they have been led to believe; (2) good defenses can be offered in most cases where problems arise with the IRS; but (3) the surest way for a church to lose their case with the IRS is to deny that the tax code applies to them if they have accepted tax exempt status.

The Tenth Circuit Court of Appeals has made it very clear that there is only one way for a church to regularly and substantially participate in a broad range of social, political and legislative matters without IRC § 501(c)(3) regulation and that is to forego tax exempt status. This was pointedly driven home by an historic Tulsa case, Christian Echoes v. United States, 470 F.2d 849, 857 (10^th Cir. 1973) which holds:

In light of the fact that tax exemption is a privilege, a matter of grace rather than right, we hold that the limitations contained in Section 501(c)(3) withholding exemption from nonprofit corporations do not deprive Christian Echoes of its constitutionally guaranteed right of free speech. The taxpayer may engage in all such activities without restraint, subject, however, to withholding of the exemption or, in the alternative, the taxpayer may refrain from such activities and obtain the privilege of exemption.

This ruling places churches that teach that the government has no jurisdiction over their activities in a very difficult position both legally and doctrinally. This position, while constitutionally and theologically correct in my opinion, has nevertheless been eroded by subsequent court decisions to the point that it is probably indefensible in court. And, even if the government had no jurisdiction over the church itself, there can still be no argument that it has jurisdiction over the tax returns and deductions of the individual donors.

I believe the biblical answer to this dilemma is found in Matthew 17:24 et. seq. where Peter was asked if Jesus paid the temple tax. Jesus was the Son of God and a rabbi. He was doubly exempt from paying this tax. But, to assert his exemption would have presented a stumbling block to many who did not recognize his status. Consequently, he paid the tax to prevent it from compromising his message on other more important issues.

Peter and Jesus had no choice, in that situation they had to pay the tax or face the controversy. American taxpayers and churches do have a choice. They can comply with the tax code and operate within its limitations or they can refuse tax exempt status. And, the Alliance Defense Fund, Liberty Counsel and others are now offering a third practical option for some churches, litigation to clarify the allowable activities of tax exempt churches. I fully support this effort. But, to accept this third option, you have to admit that the tax code applies to tax exempt churches.

It may be time for some churches to forego tax exempt status in order to free themselves from the government scrutiny associated with §501(c)(3) compliance. Churches that are very active in political and social causes could save themselves a lot of grief by simply foregoing the deduction and speaking freely. Granted, they would be submitting themselves and their donors to an unfair and probably unconstitutional financial disadvantage. But, they would also be exercising the same loving deference that Jesus did in Matthew 17:24 et. seq. by not allowing their tax exempt status to get in the way of the larger mission.

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A very interesting article on this subject quoting several prominent Tulsa tax attorneys can be found HERE.

Sanity Prevails In Marine Corp Haditha Trial

The following is a press release from the Thomas More Law Center:

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Marine Acquitted of Haditha Charges;
Judge Defers Decision on Crucial Motion and Delays Trial in LtCol Chessani Case

Thursday, June 5, 2008

ANN ARBOR, MI – Last night, a jury panel of seven officers acquitted Marine 1st Lieutenant Andrew Grayson of all charges involving accusations that he covered-up the killings of 24 Iraqis in Haditha on November 19, 2005. The verdict caused spectators in courtroom on the vast Camp Pendleton Marine facility to erupt in cheers.

After his acquittal, Lt Grayson made comments about Lt Col Jeffrey Chessani, one of the two remaining defendants in the Haditha cases, saying he was “one of the most steadfast men… He led by example and he knew the difference between right and wrong.” Lt Col Chessani is being defended by the Thomas More Law Center, a national public interest law firm based in Ann Arbor, Michigan.

Richard Thompson, President and Chief Counsel of the Law Center, observed, “The government ordered these Marines to the front lines, they ordered them to attack the insurgents… Marines, risking their lives, followed those orders without hesitation; their reward ─ criminal prosecution. There must be some righteous person in the chain of command that will say ‘enough is enough.’”

Earlier in the week, in another courtroom on the same Marine facility as Grayson’s trial, two days of motion hearings were concluded in the government’s case against LtCol Chessani, one of the Marine’s most effective combat leaders and the highest ranking officer charged in the Haditha incident. In that case, Military Judge, Col Steven Folsom deferred his decision on a crucial defense motion to June 16th, and delayed the actual trial until July 21st.

In May 2008, Col Folsom ruled that he found evidence of unlawful command influence (UCI). Courts consider UCI the mortal enemy of military justice. The judge’s finding was based upon the evidence that Generals Mattis and Helland, who controlled the disposition of LtCol Chessani’s case, were impermissibly influenced by Marine lawyer Col John Ewers, one of the investigators of the Haditha incident from the beginning. He was permitted to attend at least 25 closed-session meetings in which Chessani’s case was discussed.

As a result of that ruling, the burden shifted to prosecutors to prove beyond a reasonable doubt that (1) the facts alleged by the defense are untrue; (2) the facts alleged do not constitute unlawful command influence; or (3) the unlawful command influence will not affect the proceedings. In short, court decisions on unlawful command influence require the military judge to avoid even the “appearance of this evil” in his courtroom.

To meet their burden, earlier this week, prosecutors presented the testimony of General Mattis and Col Ewers. Conspicuously absent was the testimony of General Helland.

In what might be a hint of his ruling, earlier in the week Col Folsom asked what remedies to the UCI problem both sides recommended. Robert Muise, one of the TMLC defense attorneys, asked the military judge to dismiss the case with prejudice (meaning the case could not be recharged against LtCol Chessani). The prosecution asked for a less severe remedy.

The crucial Unlawful Command Influence motion (click here for Motion), which was the focus of this week’s hearing, was filed by the Thomas More Law Center. Law Center attorneys Robert Muise and Brian Rooney, both former Marines, wrote and argued the Unlawful Command Influence motion on which yesterday’s decision is based. The two TMLC attorneys, along with two detailed Marine lawyers, LtCol Jon Shelburne and Captain Jeffrey King, are defending LtCol Chessani.

The criminal charges against LtCol Chessani stem from a house-to-house, room-by-room battle four of his enlisted Marines engaged in on November 19, 2005 after being ambushed by insurgents in the town of Haditha, Iraq. Even though LtCol Chessani immediately reported the events of that day to his superiors, including the death of 15 noncombatant civilians caught in the crossfire, nobody in LtCol Chessani’s chain of command believed there was any wrongdoing on behalf of the Marines.

However, months later, a Time magazine story instigated by an insurgent propaganda agent, caused Pentagon officials to order the largest investigation in the history of the Naval Criminal Investigative Services (NCIS). As a result, LtCol Chessani, now faces dismissal (an officer’s equivalent of a dishonorable discharge), loss of retirement, and imprisonment of up to 3 years.

According to press reports, 1st Lt Grayson's attorney, Joseph Casas, said he believed the verdict could influence pending prosecutions. “I think it sets the tone for the overall whirlwind Haditha has been. It's been a botched investigation from the get-go, ” he said. “I believe in the end all of the so-called Haditha Marines who still have to face trial will be exonerated.”

The Thomas More Law Center defends and promotes the religious freedom of Christians, time-honored family values, and the sanctity of human life through litigation, education, and related activities. It does not charge for its services. The Law Center is supported by contributions from individuals, corporations and foundations, and is recognized by the IRS as a section 501(c)(3) organization. You may reach the Thomas More Law Center at (734) 827-2001 or visit our website at www.thomasmore.org

PSO Drops the Ball Again

For the second time in six months, I am sitting a coffee shop trying to do business while I wait for the utility companies to get my home office back in operation. It is frustrating and frankly I am quite angry about it.

I am also somewhat mystified. I have lived in Tulsa on and off for most of my adult life. My wife and I have been in Metro Tulsa since 1980 this time around. The weather has not gotten worse. Oklahoma is notorious for weather extremes. Ice storms like this winters' and wind storms like this weeks' occur on a rare but regular basis. Every decade or so we go through a period of very unsettled weather. But, in past decades we have not had the number or length of power and other utility outages that we have in the past couple of years. I cannot remember a time in Tulsa when we went for days without power.

This leads to the obvious question. What has changed? The utility companies. Rates have gone up consistently at the same time service levels have dropped. This winter, a crew from Southern Oklahoma fixed the broken power pole in my neighbor's back yard about a week after it went down. They did it, not because PSO had dispatched them, but rather because we flagged them down and told them about our elderly neighbor who had had no heat for a week.

These very decent small town utility workers had the equipment and the crew to replace a pole and restore power and they just did it. It wasn't rocket science. People, equipment, placement. Very straightforward. Just doing their job. Maybe that's what AEP/PSO needs now, enough crews and equipment to respond to their customer's needs when things go south.

AEP/PSO's emergency response plans, field staffing levels, profits and executive salaries need to be examined in light of two disastrous but entirely predictable power outages in six months. I sincerely hope that someone from the Oklahoma Corporation Commission reads this.

Bad News for McCain and Dem's Too ...

Last night, my wife and I visited one of our usual haunts, a diner on Tulsa's near Northside that features live music and a little dance floor (sort of). Frick and Frack were doing their usual pretty good job of having a good time with their music and helping other people do the same. There wasn't much of a crowd, just a couple of tables of regulars and about thirty people in one party for a family reunion of some sort. I was surprised when the one I call Frick, the keyboard player decided to tell joke. This is the story he told:

John McCain, Hillary Clinton and Barrack Obama were all in an airplane traveling across the country. While they were passing over a small city, McCain spoke up and said, "I could throw a thousand dollar bill out of the plane right now and make somebody down there very happy." Not to be outdone, Hillary said, "I could throw ten hundred dollar bills out of the plane right now and make several people happy." Sensing a movement for change, Obama piped in: "I could throw a hundred ten dollar bills out of the plane and make a lot people a little happier." The two flight attendants had been listening at a respectful distance. After a moment one of them whispered to the other, "Yeah, and we could throw all three of these losers out of the plane and make the whole country happy."

There was a roar of laughter and then small conversations broke out among the tables. I distinctly heard one blue collar lady say that she was going to have to do a write in or something this year. I didn't feel like intruding to tell her that a write in in Oklahoma invalidates your ballot.

The place where this story was told is definitely blue collar in a neighborhood where folks have a lot more to worry about than politics. When politics are discussed in places like this, there are usually pretty solid party line divisions. But last night, in this place in Tulsa, Oklahoma, there was a profound cynicism toward the whole electoral process that is unusual in people of that social and economic class.

I am afraid that this is indicative of real troubles ahead in the next presidential election. We may have an election that is decided by party activists alone because the political parties have, by default or design, fielded such a poor a selection of candidates that nobody, even Joe Sixpack, is willing to vote for them.