I understand the argument that clergy have to be able to be free to speak out on political issues. What I'm less clear about is why they have to be able to do so from a tax exempt status.
I suppose the second issue suggested by Tom's post is whether church rules about polity effectively respond to the free speech concern. If only associations expressing a particular viewpoint have certain kinds of rules about who can speak for the organization, and that distinction is accepted as a justification for regulating the speech of those associations less rigorously than the speech of associations with different viewpoints, does that resolve the debate distorting consequence of accepting this distinction? Avoiding debate distorting government action is, after all, why we are concerned about viewpoint discrimination in the first place.
Alan Brownstein UC Davis
At 11:37 AM 6/3/2004 -0500, you wrote:
I'm not sure about the following argument, but what do you think of it? The ban on lobbying can be circumvented by setting up a separate 501(c)(4) organization, which the Court in Regan said was relevant (if not crucial) to its constitutionality. Suppose that it doesn't cost much in terms of administrative duplication to set up the (c)(4), so that in practical terms the message can get out to its targeted audience through the (c)(4). (The costs may vary, but Regan seems to assume they're not large.) But clearly certain churches have doctrinally based views about polity, under which teaching on the implications of the faith, including social implications, must come from those in certain positions of authority in the church: they are the ones who have been given the teaching authority by God. Does that make them distinctive from other organizations -- in terms of their polity doctrine, not in terms of their message or the practical costs of separate affiliates -- and justify different treatment? Even if not a free exercise exemption, because of Smith, then under a RFRA? And might this distinctiveness as to polity doctrines answer the free-speech argument that such distinctive treatment is unconstitutional because it discriminates between the viewpoints being expressed?
A 1988 statement by the Presbyterian Church (USA) puts it as follows: "No church can be restricted to speaking on political issues solely through functionaries employed by a political affiliate without violating its faith and calling." Perhaps that states it too broadly; perhaps only certain churches truly have such doctrines about polity. The McConnell, Garvey, Berg religion casebook (p. 859) asks the question this way (somewhat rhetorically): "As long as the [Catholic] Church can communicate its position on electoral issues, does it matter whether that communication comes through an official of a Catholic (c)(4) affiliate or PAC rather than, say, a bishop of a diocese?" It matters greatly.
Perhaps the answer to this argument is that such an exemption should be provided, if at all, to any group, religious or secular, that can show a doctrine that teaching must come from certain designated authorities. But that seems to be a feature almost entirely of religious groups -- or an I wrong about that?
Tom Berg University of St. Thomas School of Law (Minnesota)
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From: Marty Lederman [mailto:[EMAIL PROTECTED] Sent: Thu 6/3/2004 9:08 AM To: Law & Religion issues for Law Academics Subject: Re: Gay Activists Threaten Church Tax-Exempt Status
This appears to be the hot-button issue of the day, what with today's New York Times front-page story about Bush's attempt to use churches for electioneering (http://www.nytimes.com/2004/06/03/politics/campaign/03CHUR.html?hp <http://www.nytimes.com/2004/06/03/politics/campaign/03CHUR.html?hp> ), and the recent contretemps concerning Bishop Sheridan's politicking (see http://www.au.org/site/News2?page=NewsArticle <http://www.au.org/site/News2?page=NewsArticle&id=6675&abbr=pr&JServSessionI dr012=rx1ae42ab1.app7b&security=1002&news_iv_ctrl=1241> &id=6675&abbr=pr&JServSessionIdr012=rx1ae42ab1.app7b&security=1002&news_iv_c trl=1241).
In addition to Marc Stern's point, I'd add that it's long struck me as odd that this is viewed as a serious constitutional issue. All nonprofits that wish to receive the tax benefit, religious and secular, churches and other entities, are limited in the amount of electioneering they can do. If there's a problem with this condition, it's a policy, not a constitutional, concern (see, e.g., Regan), and is not limited to churches. Even pre-Smith, any Free Exercise claim would have been on extremely weak ground (on "substantial burden" grounds, primarily); and post-Smith, it's difficult to see what the claim would be. Moreover, if the IRS were to allow churches, but not secular nonprofits, to use tax benefits to engage in electioneering, that would be a fairly straightforward Free Speech violation (giving a religious preference w/r/t to core political expression), and would raise serious Establishment Clause questions, as well. As Chip Lupu has written w/r/t this tax-exemption, "the area of political activity is one in which the claim to the constitutional uniqueness of religion is unusually weak, and the claim to equal participation by all is unusually strong."
Having said that, I should note that Rick Garnett and Steffen Johnson advanced serious arguments against the condition in the July 2001 Boston College Law Review. Although I haven't read those pieces in a while, I recall thinking that they were quite formidable, if ultimately unpersuasive to this reader.
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From: marc stern <mailto:[EMAIL PROTECTED]> To: 'Law <mailto:[EMAIL PROTECTED]> & Religion issues for Law Academics' Sent: Thursday, June 03, 2004 9:44 AM Subject: RE: Gay Activists Threaten Church Tax-Exempt Status
There really is nothing to the threat. Churches are free to take stands on political issues provided they do not spend a "substantial" amount on these activities. The late Dean Kelly obtained an internal IRS memo which indicted that insubstantial was between 5-20% of an organization's budget. The document was informal and would not bind the IRS, but it describes a fairly safe harbor. Non-church groups can opt for a different and more predictable set of rules, but at the behest of churches which then insisted that the government could not stop them from advocating for legislation at the expense of exemption, churches were not offered the option.
Marc Stern
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From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Francis Beckwith Sent: Thursday, June 03, 2004 8:16 AM To: Religion Law Mailing List Subject: Gay Activists Threaten Church Tax-Exempt Status Importance: Low
Just got this from a friend. It is published by "Focus on the Family," a conservative Christian outfit in Colorado Springs.
Frank
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June 1, 2004
Church's Tax-Exempt Status Threatened
by Steve Jordahl, correspondent
Pro-homosexual group lodges complaint with the state against a Montana church that aired the "Battle for Marriage" satellite broadcast.
A Montana church, one of hundreds across the country to broadcast a pro-marriage TV special on May 23, has been threatened by a gay-activists group with removal of its tax-exempt status.
Canyon Ferry Road Baptist Church in Helena showed congregants "The Battle for Marriage" - a video simulcast featuring Focus on the Family Chairman Dr. James Dobson and other pro-family leaders - and circulated a petition at the event calling for a state constitutional amendment supporting traditional marriage. Those actions rankled the gay-activist group Montanans for Family and Fairness, which lodged a complaint with the state's Commission of Political Practices.
The complaint alleges that what the church did "may ... have implications for an organization's tax status." The commission has said it will investigate, but Alliance Defense Fund (ADF) attorney Gary McCaleb said the argument is without merit.
"The letter that was sent out by these far-left activists is outrageous," McCaleb said. "I think it's defamatory, and it's certainly an intolerant effort to suppress free speech."
Canyon Pastor B.G. Stumberg said his church is not intimidated. The commission is unable to affect a church's tax-exempt status on its own, but a decision against the church is the first step in stripping a congregation of its tax benefits.
"I don't think it's scaring us at all," he said. "It's sort of galvanized us, in one sense, (and) I think everybody's sort of saying, 'OK, let's go.' "
The letter was also sent to several hundred other Montana churches, an obvious attempt to make them think twice about addressing the issue of gay marriage. McCaleb said churches should press ahead, anyway.
"You certainly don't convert your church into a political committee," he explained, "when you speak out in favor of marriage."
The ADF, McCaleb added, would be happy to consult with any church that has questions.
Copyright © 2004 Focus on the Family All rights reserved. International copyright secured. (800) A-FAMILY (232-6459) Privacy Policy/Terms of Use <http://www.family.org/welcome/aboutfof/a0013445.cfm> | Reprint Requests <http://www.family.org/reprints/>
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