Re: Religion Clauses question

[Francis Beckwith]

Paul:

You're absolutely right: bad reasoning is not improved by having the Bible
as one of your premises.   I once told my students at Baylor that one can
prove that tennis is mentioned in the Bible since the Book of Genesis states
that "Joseph served in Pharoah's court."

Take care,
Frank

On 6/3/04 12:06 PM, "Paul Finkelman" <[EMAIL PROTECTED]> wrote:

> Since this is a list serve on law, I guess I misread your argument to
> include the idea that gay people should not be accorded the same rights
> as the rest of us, which would include the right of marriage, equal
> protection of the law, etc.  If your position is merely that a religious
> person has a right to disapprove of gave people, that is surely true.
> 
> As for a "disreputable tactic" -- on the contrary, it is worth recalling
> that religious and biblical arguments were at the center of the
> intellectual support for segregation and slavery.  To this day some
> churches preach that the story of Noah and the curse of Canaan as a way
> of arguing for racial inferiority.  Thus, I do not think it disreputable
> at all to note that people of faith have often used their faith as a
> rationale, and explanation, or a reason for their willingness to
> discriminate against people.
> 
> Clearly, however, as you note, you are not advocating disrciminating
> against gay people, and so I welcome you to to fold of many people of
> faith who support equal rights for all Americans!
> 
> Paul Finkelman
> 
> Francis Beckwith wrote:
>> On 6/2/04 10:52 PM, "Paul Finkelman" <[EMAIL PROTECTED]> wrote:
>> 
>> 
>>> Mr. Beckwith:
>>> 
>>> It is hard to imagine how one can treat someone with respect and at the
>>> same time believe that such a person is not entitled to the same rights
>>> that you have.
>> 
>> 
>> Yes, it is hard to imagine that I would hold that belief, since I don't hold
>> it.  
>> 
>>> Quite frankly, your position reminds me of those southern whites who
>>> treated blacks with "respect" while segregating them, denying them full
>>> legal rights, and turning a blind eye to their persecution.  It is worth
>>> remembering that for more than 150 years Christians defended both
>>> slavery and segregation with religious and biblical arguments.
>> 
>> 
>> This is precisely the sort of disreputable tactic that I was talking about
>> in my last post.  Instead of engaging the modest case I put forth (which, by
>> the way, never dealt with the legal rights of gay citizens, but rather, the
>> legal rights of religious citizens), I am passive-aggressively compared to
>> someone who defended segregation and/or slavery.  Here's what I wrote: "I
>> think that the gay rights movement has corrupted our public discourse by the
>> rhetorical trick of changing the topic from the plausibility of one¹s
>> position to whether the one who embraces that position is a virtuous person.
>> So, for example, if a concerned parent sincerely believes that homosexuality
>> is immoral, and has informed himself of all the relevant arguments and
>> remains unconvinced of the other¹s position, that parent is `homophobic.'
>> I am not convinced that is how adults ought to conduct their disagreements
>> in public."  All was I suggesting is that the parent's concern is legitimate
>> and ought to be treated with respect, since she, after all, has the same
>> rights as the rest of us.
>> 
>> Your slavery analogy, however, raises an interesting question that is
>> outside the scope of this listserv though relevant to your view on the
>> relationship between law and morality: why was slavery wrong? Was it wrong
>> because the slaves did not consent to their imprisonment, or was it wrong
>> because human beings are by nature the sorts of beings that are not
>> property? If the latter, then there are acts between consenting
>> adults--namely voluntary slavery--that the law could proscribe on clearly
>> moral and metaphysical grounds. On the other hand, if the former, then
>> slavery is not intrinsically wrong; it is only conditionally wrong,
>> depending on whether the prospective slave consented to his servitude.
>> 
>> Perhaps I was unclear in my posting, and for that I apologize. All I was
>> doing was trying to do was humanize the predicament of the serious, caring
>> citizen who feels under siege by cultural warriors who will call her names
>> and marginalize her perspective simply because she is thoughtfully
>> unconvinced that her critics are correct.
>> 
>> Frank
>> 
>> 
>> 
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Re: And "proselytizing" Re: religious "indoctrination"

[Francis Beckwith]

Title: Re: And "proselytizing" Re: religious "indoctrination"



Thanks Bobby. It’s my fault for a bad choice of words.  

Frank

On 6/3/04 9:42 AM, "[EMAIL PROTECTED]" <[EMAIL PROTECTED]> wrote:

In a message dated 6/3/2004 9:05:59 AM Eastern Standard Time, [EMAIL PROTECTED] writes:
I don’t think it was fair of you to isolate my last sentence—which, admittedly, I poorly phrased--from the larger point I was making: we use terms like “judgmental,” “dogmas,” “sectarian,” etc. in ways that permit us not to carefully examine them.
    Of course I agree with Frank's larger point. I took the last sentence--"The one I particularly like is the guy who condemns "being judgmental," which of course, requires a judgment"--as equating "being judgmental" with "judging" in the same manner that some people equate "rejecting intolerance" with "being intolerant." Further, the language "[t]he one I particularly like" suggested (to me) that the sentence I quoted was significantly different from the rest of his post. I agreed with the rest of the post but not this last sentence. That is why I responded by quoting it only.  Moreover, I find the structure of the last sentence, one which too many people embrace especially when discussing intolerance, to be an obstacle to our understanding the nature of judgment or tolerance. I'm relieved that I misunderstood Frank, but I did not do so intentionally, and thus I think the charge of unfairness to be premature.
 
Bobby





Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware

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Re: Religion Clauses question

[Nathan Oman]

This discussion puts me in mind of Waldron's observation about the difficulty of 
rights based discourse: Rights purport to be fundamental commitments to which we can 
appeal to neutrally resolve basic disputes, but what counts as a right is precisely 
what people disagree about.

I suspect that those who oppose same sex marriage do so precisely because they don't 
regard same sex marriage as a right (in the Dworkin, rights as trumps meaning).  It 
seems to me that the language of equal rights only becomes useful once one has defined 
what counts as a right and what doesn't count as a right.  However, once one has those 
definitions most of the arguing has been done.

Nate Oman

-- Original Message --
From: Paul Finkelman <[EMAIL PROTECTED]>
Reply-To: [EMAIL PROTECTED],
Date: Thu, 03 Jun 2004 13:17:55 -0500

>Richard: It seems to me that if you oppose rights  for people you can't 
>say you support equal rights.  It is pretty clear to me that this is 
>about fundamental rights.  I absolutely agree with Prof. Beckwith that 
>there should be no need to endorse or agree with people being gay 
>(although the science seems pretty clear that many if not all gay people 
>are born the way they are, so it is sort of like endorsing or not 
>endorsing people being male or female).  One can believe that being gay 
>is immoral; just as one can dislike being around Jews or Moslems or 
>Blacks, or Asians.  But, the issue for those of us interested in law is 
>one of rights and equality.  I think if you deny a huge class of people 
>the right to marry, to raise children, to share in the civil benefits of 
>marriage (such as shared health insurance, right to inherit, right to 
>make end of life decisions for your partner, right to even visit your 
>loved one in the hospital) then you are in fact against equal rights for 
>all people.
>
>I personally would favor the government not marrying anyone -- that is 
>for the clergy; the government should set up regulations for family 
>units; civil unions, and the like. Then let the clergy marry people. 
>But, as long as the government is the "marriage business" it should not 
>be allowed to discriminate unless there is a strong compelling interest; 
>no one on this list has ever offered a compelling interest (or even a 
>rational basis) argument for opposing same sex unions.  The only 
>arguments offer are that it violated God's law (which of course is 
>disputed and truly irrelevant to our legal sysystem) and that it sets a 
>bad example.  Well, we can all think of lots of things that set a bad 
>example.  I think having more children than you can raise sets a bad 
>example; The Catholic Church clearly does not think that is true, or at 
>least does not think it is true enough to support birht control.  I 
>think sixteen year olds set a bad example when they get married, but a 
>number of states disagree.  I think parents who yell at little league 
>umpires set a bad example for their kids; but there are not compelling 
>interests or even a rational basis for banning these sorts of behavior.
>
>Paul Finkelman
>
>Richard Dougherty wrote:
>>>Clearly, however, as you note, you are not advocating disrciminating 
>>>against gay people, and so I welcome you to to fold of many people of 
>>>faith who support equal rights for all Americans!
>>>
>>>Paul Finkelman
>> 
>> 
>> Respectfully, isn't this the kind of point that Prof. Beckwith is getting at?  
>> Opponents of gay "marriages" or "civil unions" are not necessarily opponents of 
>> "equal rights for all Americans."
>> 
>> Richard Dougherty
>> 
>> 
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>> To post, send message to [EMAIL PROTECTED]
>> To subscribe, unsubscribe, change options, or get password, see 
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
>
>-- 
>Paul Finkelman
>Chapman Distinguished Professor
>University of Tulsa College of Law
>3120 East 4th Place
>Tulsa, Oklahoma  74104-2499
>
>918-631-3706 (office)
>918-631-2194 (fax)
>
>[EMAIL PROTECTED]
>
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--
Nathan Oman

http://www.tutissima.com
http://www.timesandseasons.org
--
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Re: Religion Clauses question

[Paul Finkelman]

well, Jim, some countries do not define marriage that way at all; the 
French don't let the state do marriages.  Indeed, I find it odd that 
people of serious faith would want the state involved in marriage; state 
defines marriage it then defines who can perform it.  I am a devotee of 
ROger Williams; I think that they less the state has to do with 
religion, the better off religion is, and as it happens the better off 
the state is.  I cannot comprehend why people of faith would want the 
state involved in religious ceremonies, in determining who is a bona 
fide member of the clergy, what prayers kids can say, etc.  One of the 
oddities of this Country is that for centuries dissenting Protestants 
were in the vanguard of the fight FOR separation of Church and State; 
the Baptists was alwasys in the lead, because they could recall when 
their ministers were jailed and whipped for -- of all things -- 
performing marriages in Virginia.  Now you want ot have th state running 
all this stuff.  I can't wait to hear your tune when some other groups 
are in the majority; I wonder, for example, what the line will be when a 
Moslem majority in some city or even state wants to follow in your 
footsteps.

As for your arguments below, they are the exact same arguments used by 
opponents of interracial marriage -- any white man can marry a white 
women, any black man can marry a black woman, any Chinese man can marry 
a Chinese woman, etc. Or in Germany in 1937, any Jewish man can marry a 
Jewish woman, any Aryan can marry an Aryan.  I am underwhelmed by the 
sophistication of your argument.

Paul F
[EMAIL PROTECTED] wrote:
I have held my peace for a bit.  But Professor Finkelman has fallen for 
a bait and switch tactic.  The net result is that something the state 
calls marriage, defined according to its terms, is changed to suit 
something that homosexual activists call marriage, but which is, in 
nature and essence, a relationship completely different from the one 
known to the state.
 
Marriage is a relationship legally sanctioned by the state between 
persons of opposite genders.  The right to enter into such a 
relationship is not conditioned on heterosexuality.  Any gay man may 
enter into a marriage with any willing female.  Any Lesbian female can 
enter into a marriage with any willing male.  No heterosexual male can 
enter into a marriage with a willing male.  No heterosexual female can 
enter into a marriage with a willing female.
 
I suppose this will be described by some as sophistry.  Yet to say that 
homosexuals are being denied equal rights when they are prevented from 
placing their unions within the classification of marriage, is to ignore 
what marriage is, and demand a right to have marriage change into what 
it may become.  Such a right would be more correctly described as the 
right to have things my way.  But even heterosexuals do not enjoy the 
absolute right to have things "my way." 
 
Jim Henderson
Senior Counsel
ACLJ

--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East 4th Place
Tulsa, Oklahoma  74104-2499
918-631-3706 (office)
918-631-2194 (fax)
[EMAIL PROTECTED]
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Re: Religion Clauses question

[JMHACLJ]

I have held my peace for a bit.  But Professor Finkelman has fallen for a bait and switch tactic.  The net result is that something the state calls marriage, defined according to its terms, is changed to suit something that homosexual activists call marriage, but which is, in nature and essence, a relationship completely different from the one known to the state.
 
Marriage is a relationship legally sanctioned by the state between persons of opposite genders.  The right to enter into such a relationship is not conditioned on heterosexuality.  Any gay man may enter into a marriage with any willing female.  Any Lesbian female can enter into a marriage with any willing male.  No heterosexual male can enter into a marriage with a willing male.  No heterosexual female can enter into a marriage with a willing female.
 
I suppose this will be described by some as sophistry.  Yet to say that homosexuals are being denied equal rights when they are prevented from placing their unions within the classification of marriage, is to ignore what marriage is, and demand a right to have marriage change into what it may become.  Such a right would be more correctly described as the right to have things my way.  But even heterosexuals do not enjoy the absolute right to have things "my way."  
 
Jim Henderson
Senior Counsel
ACLJ
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Re: Gay Activists Threaten Church Tax-Exempt Status

[Marty Lederman]

I'm a bit unclear on one part of Doug's post.  
Are you saying, Doug, 
 
(i) that the church is differently situated 
because, unlike secular nonprofits, it can't (or realistically won't be able to) 
set up an affiliate through which to engage in political speech (if so, why is 
that true?), or, alternatively,
 
(ii) that for some reason the partisan political 
speech of the spiritual leader is qualitatively "very different" -- in a way 
that should matter for statutory or constitutional analysis? -- from the 
partisan political speech of her nonreligious counterpart? 
 
 
- Original Message - 

  From: 
  Douglas Laycock 
  To: Law & Religion issues for Law 
  Academics 
  Sent: Thursday, June 03, 2004 12:10 
  PM
  Subject: RE: Gay Activists Threaten 
  Church Tax-Exempt Status
  I agree 
  that the absolute limit on candidate advocacy is a problem.  Of course it 
  is a problem for all other non-profits as well, and the usual solution is to 
  set up a political affiliate.  The one other way in which churches are 
  differently situated is the speech of the clergy.  When the church 
  addresses a moral issue, including the positions of competing candidates on 
  that moral issue, it is very different for the spiritual leader to make the 
  statement versus the head of the 501(c)(4) affiliate making the 
  statement.  I agree with Marty's analysis of current law, but the 
  restriction on the speech of the clergy is a constitutional 
  problem.At 10:52 AM 6/3/2004 -0400, you wrote:
  content-class: 
urn:content-classes:messageContent-Type: 
multipart/alternative;boundary="_=_NextPart_001_01C4497A.74159228""urn:schemas-microsoft-com:vml" 
xmlns:o = "urn:schemas-microsoft-com:office:office" xmlns:w = 
"urn:schemas-microsoft-com:office:word" xmlns:st1 = 
"urn:schemas-microsoft-com:office:smarttags"> The "susbtantial" limit on lobbying does provide ample 
breathing room for most religious institutions, including any bona fide 
house of worship I could imagine.  And there's probably no limit on 
religious groups' advocacy re moral issues, where the advocacy isn't also 
lobbying. But 
there's no such latitude re advocacy for candidates, and we are, after all, 
in an election year.  So I expect that the candidate part of the limit 
will be asserted frequently in the months to come, and it could well 
represent a meaningful threat.  

  -Original Message- 
  From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]]On Behalf 
  Of marc stern 
  Sent: Thursday, June 03, 2004 9:44 AM 
  To: 'Law & Religion issues for Law Academics' 
  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 
   
  
   
  
  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
  ---
  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 

Re: Religion Clauses question

[Richard Dougherty]

This proves more clearly Prof. Beckwith's point, I think: disagree with my view of 
equal rights, and you are a reactionary.  But the whole question is precisely one 
about the content of those rights.

I have seen dozens of arguments on this list opposing same-sex civil unions; one might 
not find them "compelling" or "rational" (in the legal or moral sense), but surely 
they've been addressed?

It is a caricature of the Catholic Church to say that it teaches that people should 
have more children than they can raise.  Any Church document on the question can be 
consulted for clarification.

Richard Dougherty


-- Original Message --
From: Paul Finkelman <[EMAIL PROTECTED]>
Reply-To: [EMAIL PROTECTED]
Date:  Thu, 03 Jun 2004 13:17:55 -0500

>Richard: It seems to me that if you oppose rights  for people you can't 
>say you support equal rights.  It is pretty clear to me that this is 
>about fundamental rights.  I absolutely agree with Prof. Beckwith that 
>there should be no need to endorse or agree with people being gay 
>(although the science seems pretty clear that many if not all gay people 
>are born the way they are, so it is sort of like endorsing or not 
>endorsing people being male or female).  One can believe that being gay 
>is immoral; just as one can dislike being around Jews or Moslems or 
>Blacks, or Asians.  But, the issue for those of us interested in law is 
>one of rights and equality.  I think if you deny a huge class of people 
>the right to marry, to raise children, to share in the civil benefits of 
>marriage (such as shared health insurance, right to inherit, right to 
>make end of life decisions for your partner, right to even visit your 
>loved one in the hospital) then you are in fact against equal rights for 
>all people.
>
>I personally would favor the government not marrying anyone -- that is 
>for the clergy; the government should set up regulations for family 
>units; civil unions, and the like. Then let the clergy marry people. 
>But, as long as the government is the "marriage business" it should not 
>be allowed to discriminate unless there is a strong compelling interest; 
>no one on this list has ever offered a compelling interest (or even a 
>rational basis) argument for opposing same sex unions.  The only 
>arguments offer are that it violated God's law (which of course is 
>disputed and truly irrelevant to our legal sysystem) and that it sets a 
>bad example.  Well, we can all think of lots of things that set a bad 
>example.  I think having more children than you can raise sets a bad 
>example; The Catholic Church clearly does not think that is true, or at 
>least does not think it is true enough to support birht control.  I 
>think sixteen year olds set a bad example when they get married, but a 
>number of states disagree.  I think parents who yell at little league 
>umpires set a bad example for their kids; but there are not compelling 
>interests or even a rational basis for banning these sorts of behavior.
>
>Paul Finkelman
>
>Richard Dougherty wrote:
>>>Clearly, however, as you note, you are not advocating disrciminating 
>>>against gay people, and so I welcome you to to fold of many people of 
>>>faith who support equal rights for all Americans!
>>>
>>>Paul Finkelman

>> 
>> 
>> Respectfully, isn't this the kind of point that Prof. Beckwith is getting at?  
>> Opponents of gay "marriages" or "civil unions" are not necessarily opponents of 
>> "equal rights for all Americans."
>> 
>> Richard Dougherty

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Re: Religion Clauses question

[Paul Finkelman]

this would be equally true for no allowing divorce or perhaps requiring 
widows/widowers to remarry if they have children.  We allow single 
parents to adopt; would you oppose that?  We don't take chldren away 
from single parents and put them into two parent households. As for 
"always deny" that is not true; some gay couples have children with 
men/women and the children know the natural parent; but would you also 
then require that in all divorces there is shared custody or equal 
visitation, absent some crime or other compelling interest to deny a 
parent access? Would you prevent single women from having children? 
Force abortion perhaps?

It seems that your problems are alrady out there, in large numbers.  I 
would love to see the opponent of same sex unions spend as much time 
worrying about the lack of resources for raising children of poor people 
and single parents.

I have no problem with laws that support families; we can call it the 
tax code.  But, is there a difference between supporting families and 
prohibiting them from forming?  You make a good case for more supprot 
for famlies; how about universal health care for ALL children and all 
mothers and fathers fo young children?  Lots of ways to supprot 
families.  The anti-gay marriage crowd does not seem to be supporting 
measure to help families or children; they only seem to want to prevent 
the formation of families that do not look like *their* families.

Gene Summerlin wrote:
Paul,
I think an argument can certainly be made that compelling, or at least
rational, reasons exist to preclude same-sex marriage.  For example, (a)
Same-sex families always deny children either their mother or father; or (b)
Same-sex family is a vast, untested social experiment with children.  Can't
the government find that there are social and economic benefits to raising
children in families that include a mother and a father, and enact laws and
policies which promote, support and encourage citizens to form heterosexual,
two parent families?  Wouldn't this pass the rational basis test?
Gene Summerlin
Ogborn Summerlin & Ogborn P.C.
210 Windsor Place
330 So. 10th St.
Lincoln, NE  68508
(402) 434-8040
(402) 434-8044 (FAX)
(402) 730-5344 (Mobile)
www.osolaw.com
[EMAIL PROTECTED]
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] Behalf Of Paul Finkelman
Sent: Thursday, June 03, 2004 1:18 PM
To: [EMAIL PROTECTED]; Law & Religion issues for Law Academics
Subject: Re: Religion Clauses question
Richard: It seems to me that if you oppose rights  for people you can't
say you support equal rights.  It is pretty clear to me that this is
about fundamental rights.  I absolutely agree with Prof. Beckwith that
there should be no need to endorse or agree with people being gay
(although the science seems pretty clear that many if not all gay people
are born the way they are, so it is sort of like endorsing or not
endorsing people being male or female).  One can believe that being gay
is immoral; just as one can dislike being around Jews or Moslems or
Blacks, or Asians.  But, the issue for those of us interested in law is
one of rights and equality.  I think if you deny a huge class of people
the right to marry, to raise children, to share in the civil benefits of
marriage (such as shared health insurance, right to inherit, right to
make end of life decisions for your partner, right to even visit your
loved one in the hospital) then you are in fact against equal rights for
all people.
I personally would favor the government not marrying anyone -- that is
for the clergy; the government should set up regulations for family
units; civil unions, and the like. Then let the clergy marry people.
But, as long as the government is the "marriage business" it should not
be allowed to discriminate unless there is a strong compelling interest;
no one on this list has ever offered a compelling interest (or even a
rational basis) argument for opposing same sex unions.  The only
arguments offer are that it violated God's law (which of course is
disputed and truly irrelevant to our legal sysystem) and that it sets a
bad example.  Well, we can all think of lots of things that set a bad
example.  I think having more children than you can raise sets a bad
example; The Catholic Church clearly does not think that is true, or at
least does not think it is true enough to support birht control.  I
think sixteen year olds set a bad example when they get married, but a
number of states disagree.  I think parents who yell at little league
umpires set a bad example for their kids; but there are not compelling
interests or even a rational basis for banning these sorts of behavior.
Paul Finkelman
Richard Dougherty wrote:
Clearly, however, as you note, you are not advocating disrciminating
against gay people, and so I welcome you to to fold of many people of
faith who support equal rights for all Americans!
Paul Finkelman

Respectfully, isn't this the kind of point that Prof. Beckwit

RE: Gay Activists Threaten Church Tax-Exempt Status

[A.E. Brownstein]

I'm not sure I fully understand this argument, but I don't know all that 
much about church doctrine or tax law. Can you help me, Tom. Is the 
argument that the religious leaders of certain faith communities are 
prohibited by church doctrine from serving in leadership positions or 
taking on speaking roles in 501(c)(4) organizations? Or is it a tax law 
problem? Do IRS regulations make it difficult for clergy to participate in 
501(c)(4) organizations, perhaps because they receive compensation from a 
501(c)(3)? Can someone work part time at both a 501(c)(3) and part time at 
a 501(c)(4)? Can a church categorize itself as a (c)(4) organization and 
lose its tax exempt status? If so, that takes us back to problems relating 
to the impracticality of segregating one's activities and the cost in lost 
subsidies and exemptions of maintaining organizational and operational 
unity -- but that problem applies to both secular and religious individuals 
and institutions.

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)

  _
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
 ), and
the recent contretemps concerning Bishop Sheridan's politicking (see
http://www.au.org/site/News2?page=NewsArticle

RE: Gay Activists Threaten Church Tax-Exempt Status

[Anthony Picarello]

Title: Gay  Activists Threaten Church Tax-Exempt Status



I 
agree that, in the hypothetical case I've described, the IRS would be unlikely 
to pursue sanctions.  But that's true only as a practical / political 
matter.  I'm more interested in the legal / doctrinal question, and 
I think the answer to that question is not entirely clear under current 
constitutional jurisprudence (FS or FEx).  
 
My 
basic point is only contra Marc's suggestion that this is a non-issue or an easy 
question.  Instead, I think the question is very much in play, and an 
interesting one for study.  Alan's follow-up 
questions point in the same direction, in that they suggest even more, 
comparably thorny issues, except with more of an Est Cls 
flavor
 

  -Original Message-From: 
  [EMAIL PROTECTED] 
  [mailto:[EMAIL PROTECTED]On Behalf Of marc 
  sternSent: Thursday, June 03, 2004 12:03 PMTo: 'Law 
  & Religion issues for Law Academics'Subject: RE: Gay Activists 
  Threaten Church Tax-Exempt Status
  
  My favorite example 
  is this.Several years ago, Cardinal Law urged that it was a sin to vote for a 
  candidate who supported abortion. Great uproar from the usual suspects. No 
  critical comment at all when the then Bishop of San Diego said during the same 
  election cycle it was a sin to vote for a viable neo-Nazi candidate, The IRS 
  did nothing about either case. My guess si they would do nothing about it in 
  your hypothetical either.
  Marc
   
  
  
  
  
  From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of Anthony 
  PicarelloSent: Thursday, 
  June 03, 2004 10:31 AMTo: 
  Law & Religion issues for Law 
  AcademicsSubject: RE: Gay Activists Threaten 
  Church Tax-Exempt Status
   
  
  How about:  
  "This moral principle [pick from among the usual suspects] is so important to 
  this religious congregation that, if a congregant supports any candidate 
  for any office who actively subverts the principle -- or who even fails 
  to support the principle actively enough -- that congregant shall be 
  excluded from the congregation."
  
   
  
  What result for the 
  congregation when its exemption is challenged?  Easy case, one way or the 
  other?
  
   
  
-Original 
Message-From: 
[EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED]On Behalf Of marc sternSent: Thursday, June 03, 2004 11:20 
AMTo: 'Law & Religion issues for Law 
Academics'Subject: RE: Gay Activists Threaten 
Church Tax-Exempt Status
The IRS has spoken 
reasonably authoritatively about this in its training manuals. By and large, 
unless the advocacy is express (vote against candidate Q because of their 
stand on….) pronouncements on policy “in the air” are not construed as 
endorsements. Otherwise all not for profits would have to shut down every 
election season.
Marc 
Stern
 




From: 
[EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Anthony 
PicarelloSent: Thursday, 
June 03, 2004 9:53 AMTo: 
Law & Religion issues for Law 
AcademicsSubject: RE: Gay Activists Threaten 
Church Tax-Exempt Status
 

The "susbtantial" 
limit on lobbying does provide ample breathing room for most religious 
institutions, including any bona fide house of worship I could 
imagine.  And there's probably no limit on religious groups' 
advocacy re moral issues, where the advocacy isn't also 
lobbying.

 

But there's no such 
latitude re advocacy for candidates, and we are, after all, in an 
election year.  So I expect that the candidate part of the limit will 
be asserted frequently in the months to come, and it could well represent a 
meaningful threat.

 
-Original 
  Message-From: 
  [EMAIL PROTECTED] 
  [mailto:[EMAIL PROTECTED]On Behalf Of marc sternSent: Thursday, June 03, 2004 9:44 
  AMTo: 'Law & Religion issues for Law 
  Academics'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 
  
   
  
  
  
  
  From: 
  [EMAIL PROTECTED] 
  [mailto:[EMAIL PROTECTED] On Behalf Of Francis 
  BeckwithSent: Thursday, 
  June 03, 

RE: Religion Clauses question

[Gene Summerlin]

Two quick related points and then back to work:

1.  Paul's claim was that neither a compelling nor a rational basis existed
to deny same sex couples the right to marry.  I proposed two theories which
substantiate a rational basis for denying legal recognition to same sex
marriages based upon protecting the welfare of children.  Paul points out
that the harm to children which might stem from same sex marriages is also
caused by other sources.  While that is true, the fact that other things
also cause these negative effects does not eliminate the state's rational
basis justification to avoid creating additional sources of these same
harms, or, more particularly, to not provide incentives to create the family
arrangements which may lead to these negative effects.

2.  This point is more of a quibble, actually.  The law does not currently
"prohibit[] [same sex families] from forming."  Instead, it denies legal
(not social) recognition to same sex families.  Put another way, the state
denies various incentivies to same sex families, and provides various
incentives to heterosexual, two parent families.  All things being equal,
many studies indicate that children with married heterosexual parents
consistently do better in every measure of well-being than their peers who
have single, cohabiting, divorced or step-parents, and this is a stronger
indicator than parental race, economic status, educational status, or
neighborhood of the ultimate welfare of a child. Again, then, doesn't a
rational basis exist for the government to offer incentives for people to
form the type of family unit that is most likely to protect the welfare of
children?

Gene Summerlin
Ogborn Summerlin & Ogborn P.C.
210 Windsor Place
330 So. 10th St.
Lincoln, NE  68508
(402) 434-8040
(402) 434-8044 (FAX)
(402) 730-5344 (Mobile)
www.osolaw.com
[EMAIL PROTECTED]


-Original Message-
From: Paul Finkelman [mailto:[EMAIL PROTECTED]
Sent: Thursday, June 03, 2004 2:21 PM
To: [EMAIL PROTECTED]
Cc: 'Law & Religion issues for Law Academics'
Subject: Re: Religion Clauses question


this would be equally true for no allowing divorce or perhaps requiring
widows/widowers to remarry if they have children.  We allow single
parents to adopt; would you oppose that?  We don't take chldren away
from single parents and put them into two parent households. As for
"always deny" that is not true; some gay couples have children with
men/women and the children know the natural parent; but would you also
then require that in all divorces there is shared custody or equal
visitation, absent some crime or other compelling interest to deny a
parent access? Would you prevent single women from having children?
Force abortion perhaps?

It seems that your problems are alrady out there, in large numbers.  I
would love to see the opponent of same sex unions spend as much time
worrying about the lack of resources for raising children of poor people
and single parents.

I have no problem with laws that support families; we can call it the
tax code.  But, is there a difference between supporting families and
prohibiting them from forming?  You make a good case for more supprot
for famlies; how about universal health care for ALL children and all
mothers and fathers fo young children?  Lots of ways to supprot
families.  The anti-gay marriage crowd does not seem to be supporting
measure to help families or children; they only seem to want to prevent
the formation of families that do not look like *their* families.

Gene Summerlin wrote:
> Paul,
>
> I think an argument can certainly be made that compelling, or at least
> rational, reasons exist to preclude same-sex marriage.  For example, (a)
> Same-sex families always deny children either their mother or father; or
(b)
> Same-sex family is a vast, untested social experiment with children.
Can't
> the government find that there are social and economic benefits to raising
> children in families that include a mother and a father, and enact laws
and
> policies which promote, support and encourage citizens to form
heterosexual,
> two parent families?  Wouldn't this pass the rational basis test?
>
> Gene Summerlin
> Ogborn Summerlin & Ogborn P.C.
> 210 Windsor Place
> 330 So. 10th St.
> Lincoln, NE  68508
> (402) 434-8040
> (402) 434-8044 (FAX)
> (402) 730-5344 (Mobile)
> www.osolaw.com
> [EMAIL PROTECTED]
>
>
> -Original Message-
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] Behalf Of Paul Finkelman
> Sent: Thursday, June 03, 2004 1:18 PM
> To: [EMAIL PROTECTED]; Law & Religion issues for Law Academics
> Subject: Re: Religion Clauses question
>
>
> Richard: It seems to me that if you oppose rights  for people you can't
> say you support equal rights.  It is pretty clear to me that this is
> about fundamental rights.  I absolutely agree with Prof. Beckwith that
> there should be no need to endorse or agree with people being gay
> (although the science seems pretty clear that many if not all gay people
> are born the 

RE: Religion Clauses question

[Gene Summerlin]

Paul,

I think an argument can certainly be made that compelling, or at least
rational, reasons exist to preclude same-sex marriage.  For example, (a)
Same-sex families always deny children either their mother or father; or (b)
Same-sex family is a vast, untested social experiment with children.  Can't
the government find that there are social and economic benefits to raising
children in families that include a mother and a father, and enact laws and
policies which promote, support and encourage citizens to form heterosexual,
two parent families?  Wouldn't this pass the rational basis test?

Gene Summerlin
Ogborn Summerlin & Ogborn P.C.
210 Windsor Place
330 So. 10th St.
Lincoln, NE  68508
(402) 434-8040
(402) 434-8044 (FAX)
(402) 730-5344 (Mobile)
www.osolaw.com
[EMAIL PROTECTED]


-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] Behalf Of Paul Finkelman
Sent: Thursday, June 03, 2004 1:18 PM
To: [EMAIL PROTECTED]; Law & Religion issues for Law Academics
Subject: Re: Religion Clauses question


Richard: It seems to me that if you oppose rights  for people you can't
say you support equal rights.  It is pretty clear to me that this is
about fundamental rights.  I absolutely agree with Prof. Beckwith that
there should be no need to endorse or agree with people being gay
(although the science seems pretty clear that many if not all gay people
are born the way they are, so it is sort of like endorsing or not
endorsing people being male or female).  One can believe that being gay
is immoral; just as one can dislike being around Jews or Moslems or
Blacks, or Asians.  But, the issue for those of us interested in law is
one of rights and equality.  I think if you deny a huge class of people
the right to marry, to raise children, to share in the civil benefits of
marriage (such as shared health insurance, right to inherit, right to
make end of life decisions for your partner, right to even visit your
loved one in the hospital) then you are in fact against equal rights for
all people.

I personally would favor the government not marrying anyone -- that is
for the clergy; the government should set up regulations for family
units; civil unions, and the like. Then let the clergy marry people.
But, as long as the government is the "marriage business" it should not
be allowed to discriminate unless there is a strong compelling interest;
no one on this list has ever offered a compelling interest (or even a
rational basis) argument for opposing same sex unions.  The only
arguments offer are that it violated God's law (which of course is
disputed and truly irrelevant to our legal sysystem) and that it sets a
bad example.  Well, we can all think of lots of things that set a bad
example.  I think having more children than you can raise sets a bad
example; The Catholic Church clearly does not think that is true, or at
least does not think it is true enough to support birht control.  I
think sixteen year olds set a bad example when they get married, but a
number of states disagree.  I think parents who yell at little league
umpires set a bad example for their kids; but there are not compelling
interests or even a rational basis for banning these sorts of behavior.

Paul Finkelman

Richard Dougherty wrote:
>>Clearly, however, as you note, you are not advocating disrciminating
>>against gay people, and so I welcome you to to fold of many people of
>>faith who support equal rights for all Americans!
>>
>>Paul Finkelman
>
>
> Respectfully, isn't this the kind of point that Prof. Beckwith is getting
at?  Opponents of gay "marriages" or "civil unions" are not necessarily
opponents of "equal rights for all Americans."
>
> Richard Dougherty
>
>
> ___
> To post, send message to [EMAIL PROTECTED]
> To subscribe, unsubscribe, change options, or get password, see
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--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East 4th Place
Tulsa, Oklahoma  74104-2499

918-631-3706 (office)
918-631-2194 (fax)

[EMAIL PROTECTED]

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Re: Religion Clauses question

[Paul Finkelman]

Richard: It seems to me that if you oppose rights  for people you can't 
say you support equal rights.  It is pretty clear to me that this is 
about fundamental rights.  I absolutely agree with Prof. Beckwith that 
there should be no need to endorse or agree with people being gay 
(although the science seems pretty clear that many if not all gay people 
are born the way they are, so it is sort of like endorsing or not 
endorsing people being male or female).  One can believe that being gay 
is immoral; just as one can dislike being around Jews or Moslems or 
Blacks, or Asians.  But, the issue for those of us interested in law is 
one of rights and equality.  I think if you deny a huge class of people 
the right to marry, to raise children, to share in the civil benefits of 
marriage (such as shared health insurance, right to inherit, right to 
make end of life decisions for your partner, right to even visit your 
loved one in the hospital) then you are in fact against equal rights for 
all people.

I personally would favor the government not marrying anyone -- that is 
for the clergy; the government should set up regulations for family 
units; civil unions, and the like. Then let the clergy marry people. 
But, as long as the government is the "marriage business" it should not 
be allowed to discriminate unless there is a strong compelling interest; 
no one on this list has ever offered a compelling interest (or even a 
rational basis) argument for opposing same sex unions.  The only 
arguments offer are that it violated God's law (which of course is 
disputed and truly irrelevant to our legal sysystem) and that it sets a 
bad example.  Well, we can all think of lots of things that set a bad 
example.  I think having more children than you can raise sets a bad 
example; The Catholic Church clearly does not think that is true, or at 
least does not think it is true enough to support birht control.  I 
think sixteen year olds set a bad example when they get married, but a 
number of states disagree.  I think parents who yell at little league 
umpires set a bad example for their kids; but there are not compelling 
interests or even a rational basis for banning these sorts of behavior.

Paul Finkelman
Richard Dougherty wrote:
Clearly, however, as you note, you are not advocating disrciminating 
against gay people, and so I welcome you to to fold of many people of 
faith who support equal rights for all Americans!

Paul Finkelman

Respectfully, isn't this the kind of point that Prof. Beckwith is getting at?  Opponents of gay 
"marriages" or "civil unions" are not necessarily opponents of "equal rights for all 
Americans."
Richard Dougherty
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--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East 4th Place
Tulsa, Oklahoma  74104-2499
918-631-3706 (office)
918-631-2194 (fax)
[EMAIL PROTECTED]
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Re: Religion Clauses question

[Paul Finkelman]

Eugene:  I think you overstate (and perhaps understate?) my point, or 
perhaps I did not make it clearly enough, I guess.  I am not asserting 
that "either one allows consenting adults to get married, or one is like 
southern racists."  What I am asserting is that the Biblical and 
Religious defense of this positions sounds very much like the Biblical 
and religious defense of slavery and segregation.  Those who opposed 
interracial marriage argued that it violated God's law. that God did not 
want the races to mix, that God made the races separate.  And, that God 
made blacks to be the servants (slaves) of others according to the story 
of Noah.  Clearly some opponents of gay marriage go beyond this, arguing 
that gay people are sinners and should be prosecuted, jailed, or worse 
(stoned?) for their crimes and their sinfullness.

This does not mean that all people opposed to gay rights have these 
beliefs.  Many opponents of gay rights are not religious and are opposed 
for other reasons; but I reiterate, it is important at least to 
acknowledge that for centuries "religious" people have been making 
arguments that the Bible supports their hostility and desire to oppress 
other people.  This history should make us aware that religous people 
have no monopoly on the higher ground or fundamental morality.

Paul Finkelman
Volokh, Eugene wrote:
Hmm; seems to me that I can respect people who want to have a multiple marriage, for instance, and yet think that the law ought not sanction such marriages.  Likewise, I can respect people who want to marry their siblings, but think that the law ought not allow such marriages.
 
Of course, one can draw distinctions between such situations and same-sex marriages; as a matter of fact, I probably would draw such distinctions, since I tentatively support same-sex marriages but would probably oppose polygamous marriages (I'm not sure where I'd come down on adult sibling incest).
 
But it seems to me that Paul's argument below does not draw such distinctions.  Under the argument below, either one allows consenting adults to get married, or one is like southern racists.  It seems to me that such a position is unsound, and while I disagree with Francis Beckwith on the bottom line, I do not think that respect for another person as a person necessarily entails support of government recognition of the particular marital relationships (among other things) that this person would like to have.
 
Eugene

	-Original Message- 
	From: [EMAIL PROTECTED] on behalf of Paul Finkelman 
	Sent: Wed 6/2/2004 11:52 PM 
	To: Law & Religion issues for Law Academics 
	Cc: 
	Subject: Re: Religion Clauses question
	
	

	Mr. Beckwith:
	
	It is hard to imagine how one can treat someone with respect and at the
	same time believe that such a person is not entitled to the same rights
	that you have.
	
	Quite frankly, your position reminds me of those southern whites who
	treated blacks with "respect" while segregating them, denying them full
	legal rights, and turning a blind eye to their persecution.  It is worth
	remembering that for more than 150 years Christians defended both
	slavery and segregation with religious and biblical arguments.
	
	It seems to me that it is possible to consider some behavior which
	involves consenting adults to be immoral and still understand that you
	have no right to seek to deny those people legal rights. I may find it
	immoral for some people to try to convert others, or to denounce their
	faith, but I would not deny them the legal and constitutional right to
	do so.  True tolerance is believing the other guy is dead wrong, but
	also believing he has right to live his life with the same legal rights
	that other people have.  That would include the right to marry; to help
	your partner make end of life decisions, to visit your partner in the
	hospital; in inherit from your partner without undue probate or tax
	consequences.
	
	--
	Paul Finkelman
	Chapman Distinguished Professor
	University of Tulsa College of Law
	3120 East 4th Place
	Tulsa, Oklahoma  74104-2499
	
	918-631-3706 (office)
	918-631-2194 (fax)
	
	[EMAIL PROTECTED]
	
	
	Francis Beckwith wrote:
	> Paul:
	>
	> I don?t see it as a matter of like or dislike; in fact, I think that
	> this mischaracterizes people?s objection to homosexuality.  Clearly,
	> some people don?t like Christians and Jews, but that doesn?t mean that
	> one may not have arguments against the veracity of those religious
	> points of view without disliking its members.  I am, for example,
	> friends with two gay men, one of whom has been a close friend for years.
	> He know that I morally object to homosexuality, but we treat each other
	> with respect.  That is true tolerance: believing the other guy is dead
	> wrong but nevertheless treating him as a moral agent entitled to all the
	> dignity that goes with that status.   
	>
	> I think that the gay rights movement has corrupted our public discourse
	> by the rhetorical trick of chan

Re: Religion Clauses question

[Richard Dougherty]

>Clearly, however, as you note, you are not advocating disrciminating 
>against gay people, and so I welcome you to to fold of many people of 
>faith who support equal rights for all Americans!
>
>Paul Finkelman

Respectfully, isn't this the kind of point that Prof. Beckwith is getting at?  
Opponents of gay "marriages" or "civil unions" are not necessarily opponents of "equal 
rights for all Americans."

Richard Dougherty


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RE: Gay Activists Threaten Church Tax-Exempt Status

[Douglas Laycock]

No.  That's a rule about where you can speak, and it affects a 
bishop no differently than it affects Dr. Spock.  There may be a secular 
case where a well known leader of a secular 501(c)(3) wants to speak 
himself, and the leader of his 501(c)(4) affiliate is not known to the 
public.  That's more nearly analogous.  I'm having trouble thinking of a 
case on all fours, where the leader of the secular 501(c)(3) is vested with 
special moral authority that cannot be conferred on the leader of the 
501(c)(4) affiliate.

At 09:42 AM 6/3/2004 -0700, you wrote:
Are restrictions on the political speech of clergy a constitutional 
problem for this particular issue (loss of a religious institution's tax 
exempt status) or more generally? For example, if the ban on political 
speech on military bases upheld in Greer v. Spock is applied to a member 
of the clergy, should this be evaluated differently than the application 
of the regulation to the leader of a nonprofit, secular, peace group.

Alan Brownstein
UC Davis

At 11:10 AM 6/3/2004 -0500, you wrote:
I agree that the absolute limit on candidate advocacy is a 
problem.  Of course it is a problem for all other non-profits as well, 
and the usual solution is to set up a political affiliate.  The one 
other way in which churches are differently situated is the speech of 
the clergy.  When the church addresses a moral issue, including the 
positions of competing candidates on that moral issue, it is very 
different for the spiritual leader to make the statement versus the head 
of the 501(c)(4) affiliate making the statement.  I agree with Marty's 
analysis of current law, but the restriction on the speech of the clergy 
is a constitutional problem.

At 10:52 AM 6/3/2004 -0400, you wrote:
content-class: urn:content-classes:message
Content-Type: multipart/alternative;
boundary="_=_NextPart_001_01C4497A.74159228"
"urn:schemas-microsoft-com:vml" xmlns:o = 
"urn:schemas-microsoft-com:office:office" xmlns:w = 
"urn:schemas-microsoft-com:office:word" xmlns:st1 = 
"urn:schemas-microsoft-com:office:smarttags">
The "susbtantial" limit on lobbying does provide ample breathing room 
for most religious institutions, including any bona fide house of 
worship I could imagine.  And there's probably no limit on religious 
groups' advocacy re moral issues, where the advocacy isn't also lobbying.

But there's no such latitude re advocacy for candidates, and we are, 
after all, in an election year.  So I expect that the candidate part of 
the limit will be asserted frequently in the months to come, and it 
could well represent a meaningful threat.

-Original Message-
From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] Behalf Of marc stern
Sent: Thursday, June 03, 2004 9:44 AM
To: 'Law & Religion issues for Law Academics'
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

--
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
---

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) a

Re: "Parks will not block baptism"

[JMHACLJ]

No doubt.  That and the successful but unintentional and uncoordinated pinscers maneuver accomplished the the ACLU and the ACLJ in separate correspondence to the Park Authority.  
 
Jim Henderson
Senior Counsel
ACLJ
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RE: Religion Clauses question

[Newsom Michael]

If the sentence below were correct, then most civil rights laws would be
"wrong."  Markets are not neutral, and it is necessary, from time to
time, to intervene in order to protect important social interests --
like jobs, housing, education and the like.  Or at least that is the way
we have been doing things for quite some time now.  The arguments, it
seems to me, are at the margins, not at the core.  

-Original Message-
From: Francis Beckwith [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, June 01, 2004 8:22 PM
To: Religion Law Mailing List
Subject: Re: Religion Clauses question

Capitalism, like copulation, is an act between consenting adults.

Frank



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RE: Gay Activists Threaten Church Tax-Exempt Status

[A.E. Brownstein]

Are restrictions on the political speech of clergy a constitutional problem 
for this particular issue (loss of a religious institution's tax exempt 
status) or more generally? For example, if the ban on political speech on 
military bases upheld in Greer v. Spock is applied to a member of the 
clergy, should this be evaluated differently than the application of the 
regulation to the leader of a nonprofit, secular, peace group.

Alan Brownstein
UC Davis

At 11:10 AM 6/3/2004 -0500, you wrote:
I agree that the absolute limit on candidate advocacy is a 
problem.  Of course it is a problem for all other non-profits as well, 
and the usual solution is to set up a political affiliate.  The one other 
way in which churches are differently situated is the speech of the 
clergy.  When the church addresses a moral issue, including the positions 
of competing candidates on that moral issue, it is very different for the 
spiritual leader to make the statement versus the head of the 501(c)(4) 
affiliate making the statement.  I agree with Marty's analysis of current 
law, but the restriction on the speech of the clergy is a constitutional 
problem.

At 10:52 AM 6/3/2004 -0400, you wrote:
content-class: urn:content-classes:message
Content-Type: multipart/alternative;
boundary="_=_NextPart_001_01C4497A.74159228"
"urn:schemas-microsoft-com:vml" xmlns:o = 
"urn:schemas-microsoft-com:office:office" xmlns:w = 
"urn:schemas-microsoft-com:office:word" xmlns:st1 = 
"urn:schemas-microsoft-com:office:smarttags">
The "susbtantial" limit on lobbying does provide ample breathing room for 
most religious institutions, including any bona fide house of worship I 
could imagine.  And there's probably no limit on religious groups' 
advocacy re moral issues, where the advocacy isn't also lobbying.

But there's no such latitude re advocacy for candidates, and we are, 
after all, in an election year.  So I expect that the candidate part of 
the limit will be asserted frequently in the months to come, and it could 
well represent a meaningful threat.

-Original Message-
From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] Behalf Of marc stern
Sent: Thursday, June 03, 2004 9:44 AM
To: 'Law & Religion issues for Law Academics'
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

--
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
---

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 se

RE: Gay Activists Threaten Church Tax-Exempt Status

[Berg, Thomas C.]

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)
 
 

  _  

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
 ), and
the recent contretemps concerning Bishop Sheridan's politicking (see
http://www.au.org/site/News2?page=NewsArticle

&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.
 
- Original Message - 

From: marc stern   
To: 'Law   & 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

Re: Religion Clauses question

[Paul Finkelman]

Since this is a list serve on law, I guess I misread your argument to 
include the idea that gay people should not be accorded the same rights 
as the rest of us, which would include the right of marriage, equal 
protection of the law, etc.  If your position is merely that a religious 
person has a right to disapprove of gave people, that is surely true.

As for a "disreputable tactic" -- on the contrary, it is worth recalling 
that religious and biblical arguments were at the center of the 
intellectual support for segregation and slavery.  To this day some 
churches preach that the story of Noah and the curse of Canaan as a way 
of arguing for racial inferiority.  Thus, I do not think it disreputable 
 at all to note that people of faith have often used their faith as a 
rationale, and explanation, or a reason for their willingness to 
discriminate against people.

Clearly, however, as you note, you are not advocating disrciminating 
against gay people, and so I welcome you to to fold of many people of 
faith who support equal rights for all Americans!

Paul Finkelman
Francis Beckwith wrote:
On 6/2/04 10:52 PM, "Paul Finkelman" <[EMAIL PROTECTED]> wrote:

Mr. Beckwith:
It is hard to imagine how one can treat someone with respect and at the
same time believe that such a person is not entitled to the same rights
that you have.

Yes, it is hard to imagine that I would hold that belief, since I don't hold
it.  

Quite frankly, your position reminds me of those southern whites who
treated blacks with "respect" while segregating them, denying them full
legal rights, and turning a blind eye to their persecution.  It is worth
remembering that for more than 150 years Christians defended both
slavery and segregation with religious and biblical arguments.

This is precisely the sort of disreputable tactic that I was talking about
in my last post.  Instead of engaging the modest case I put forth (which, by
the way, never dealt with the legal rights of gay citizens, but rather, the
legal rights of religious citizens), I am passive-aggressively compared to
someone who defended segregation and/or slavery.  Here's what I wrote: "I
think that the gay rights movement has corrupted our public discourse by the
rhetorical trick of changing the topic from the plausibility of one¹s
position to whether the one who embraces that position is a virtuous person.
So, for example, if a concerned parent sincerely believes that homosexuality
is immoral, and has informed himself of all the relevant arguments and
remains unconvinced of the other¹s position, that parent is `homophobic.'
I am not convinced that is how adults ought to conduct their disagreements
in public."  All was I suggesting is that the parent's concern is legitimate
and ought to be treated with respect, since she, after all, has the same
rights as the rest of us.
Your slavery analogy, however, raises an interesting question that is
outside the scope of this listserv though relevant to your view on the
relationship between law and morality: why was slavery wrong? Was it wrong
because the slaves did not consent to their imprisonment, or was it wrong
because human beings are by nature the sorts of beings that are not
property? If the latter, then there are acts between consenting
adults--namely voluntary slavery--that the law could proscribe on clearly
moral and metaphysical grounds. On the other hand, if the former, then
slavery is not intrinsically wrong; it is only conditionally wrong,
depending on whether the prospective slave consented to his servitude.
Perhaps I was unclear in my posting, and for that I apologize. All I was
doing was trying to do was humanize the predicament of the serious, caring
citizen who feels under siege by cultural warriors who will call her names
and marginalize her perspective simply because she is thoughtfully
unconvinced that her critics are correct.
Frank

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--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East 4th Place
Tulsa, Oklahoma  74104-2499
918-631-3706 (office)
918-631-2194 (fax)
[EMAIL PROTECTED]
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RE: Gay Activists Threaten Church Tax-Exempt Status

[A.E. Brownstein]

An interesting question. Let me pose another -- Should the law provide a 
different answer to this question for religious organization than it 
provides to other tax exempt, secular, nonprofit organizations that are 
grounded on, or espouse, particular moral principles. And a third, while I 
am at it. If it is unconstitutional viewpoint discrimination for a school 
district to treat a religious group whose activities closely parallel 
worship services differently from secular civic organizations that deal 
with moral issues, isn't it equally unconstitutional to allow religious 
organizations to engage in political activity when their secular 
counterparts are prohibited from doing so.

Alan Brownstein
UC Davis

At 11:31 AM 6/3/2004 -0400, you wrote:
content-class: urn:content-classes:message
Content-Type: multipart/alternative;
boundary="_=_NextPart_001_01C4497F.D21C6BEE"
"urn:schemas-microsoft-com:vml" xmlns:o = 
"urn:schemas-microsoft-com:office:office" xmlns:w = 
"urn:schemas-microsoft-com:office:word" xmlns:st1 = 
"urn:schemas-microsoft-com:office:smarttags">
How about:  "This moral principle [pick from among the usual suspects] is 
so important to this religious congregation that, if a congregant supports 
any candidate for any office who actively subverts the principle -- or who 
even fails to support the principle actively enough -- that congregant 
shall be excluded from the congregation."

What result for the congregation when its exemption is challenged?  Easy 
case, one way or the other?

-Original Message-
From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] Behalf Of marc stern
Sent: Thursday, June 03, 2004 11:20 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Gay Activists Threaten Church Tax-Exempt Status

The IRS has spoken reasonably authoritatively about this in its training 
manuals. By and large, unless the advocacy is express (vote against 
candidate Q because of their stand on&.) pronouncements on policy in the 
airare not construed as endorsements. Otherwise all not for profits would 
have to shut down every election season.

Marc Stern

--
From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Anthony Picarello
Sent: Thursday, June 03, 2004 9:53 AM
To: Law & Religion issues for Law Academics
Subject: RE: Gay Activists Threaten Church Tax-Exempt Status


The "susbtantial" limit on lobbying does provide ample breathing room for 
most religious institutions, including any bona fide house of worship I 
could imagine.  And there's probably no limit on religious groups' 
advocacy re moral issues, where the advocacy isn't also lobbying.


But there's no such latitude re advocacy for candidates, and we are, after 
all, in an election year.  So I expect that the candidate part of the 
limit will be asserted frequently in the months to come, and it could well 
represent a meaningful threat.


-Original Message-
From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] Behalf Of marc stern
Sent: Thursday, June 03, 2004 9:44 AM
To: 'Law & Religion issues for Law Academics'
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 substantialamount on these 
activities. The late Dean Kelly obtained an internal IRS memo which 
indicted that insubstantial was between 5-20% of an organizations 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

--
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
---
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, whi

RE: Gay Activists Threaten Church Tax-Exempt Status

[Douglas Laycock]

I agree
that the absolute limit on candidate advocacy is a problem.  Of
course it is a problem for all other non-profits as well, and the usual
solution is to set up a political affiliate.  The one other way in
which churches are differently situated is the speech of the
clergy.  When the church addresses a moral issue, including the
positions of competing candidates on that moral issue, it is very
different for the spiritual leader to make the statement versus the head
of the 501(c)(4) affiliate making the statement.  I agree with
Marty's analysis of current law, but the restriction on the speech of the
clergy is a constitutional problem.

At 10:52 AM 6/3/2004 -0400, you wrote:
content-class:
urn:content-classes:message
Content-Type: multipart/alternative;
boundary="_=_NextPart_001_01C4497A.74159228"
"urn:schemas-microsoft-com:vml" xmlns:o =
"urn:schemas-microsoft-com:office:office" xmlns:w =
"urn:schemas-microsoft-com:office:word" xmlns:st1 =
"urn:schemas-microsoft-com:office:smarttags"> 
The "susbtantial"
limit on lobbying does provide ample breathing room for most religious
institutions, including any bona fide house of worship I could
imagine.  And there's probably no limit on religious groups'
advocacy re moral issues, where the advocacy isn't also
lobbying.
 
But there's no such latitude re
advocacy for candidates, and we are, after all, in an election
year.  So I expect that the candidate part of the limit will be
asserted frequently in the months to come, and it could well represent a
meaningful threat.
 

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]]On
Behalf Of marc stern
Sent: Thursday, June 03, 2004 9:44 AM
To: 'Law & Religion issues for Law Academics'
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 
 


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

---

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 Fami

RE: "Parks will not block baptism"

[marc stern]

No doubt persuaded by the discussion on this list
Marc

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Thursday, June 03, 2004 10:34 AM
To: [EMAIL PROTECTED]
Subject: "Parks will not block baptism"

From:Volokh, Eugene  To: [EMAIL PROTECTED]
  
Subject: FW: park will allow baptism Cc:
Parks will not block baptism

Church will be allowed to baptize member at Falmouth Waterfront Park on
SundayBy MICHAEL ZITZ
 Date published: 6/3/2004 River use still
discouraged Fredericksburg-Stafford Park Authority officials say they won't
interfere with the baptism of a mentally retarded man at Falmouth Waterfront
Park planned for Sunday afternoon.

A bit of a national media flap arose after a dozen members of Cornerstone
Baptist Church near Berea were baptized May 23 in the Rappahannock River as
50 congregation members looked on.

Park officials admonished Cornerstone's pastor, the Rev. Todd Pyle that day
and told him river baptisms violated the Park Authority's unwritten policy.
. . .

Park Manager Brian Robinson said yesterday that the situation has been
twisted almost beyond recognition.

There is no park policy against religious activities, he said--merely a
requirement that large groups of any kind get permits to use the park in
advance.

Robinson has said churches and other groups typically rent space in shelters
in the parks the authority oversees. The controversy grew after he said use
of common areas of the park for religious events isn't allowed so that
others are "forced to endure someone else's religion."

The Rev. John H. Reid, pastor of the New Generation Evangelical Episcopal
Church, said yesterday that he has baptized 40 people at the Waterfront Park
over the past six years and has no plans to ask for a permit.

Reid said that in addition to the man who will be baptized Sunday, there
will probably be only 10 to 20 church members observing the sacrament. . . .

"We've never had a big crowd [at a baptism]," Reid said.

"And that's why they've never had any problem," Robinson said. "We wouldn't
have an issue with that and wouldn't have a conversation with them."

Robinson said that if Cornerstone Baptist Church were to bring another large
group in for baptisms--and it requested a permit--there would be no problem.


But, he also said that because of the danger in the river, the Park
Authority would not formally sanction the baptisms and would want to have
personnel on hand in case something went wrong.

"We don't own the river and we can't prohibit it," Robinson said. . . .

http://www.fredericksburg.com/News/FLS/2004/062004/06032004/1385680
 




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RE: Gay Activists Threaten Church Tax-Exempt Status

[marc stern]

Title: Gay  Activists Threaten Church Tax-Exempt Status








My favorite example is this.Several years
ago, Cardinal Law urged that it was a sin to vote for a candidate who supported
abortion. Great uproar from the usual suspects. No critical comment at all when
the then Bishop of San Diego said during the same election cycle it was a sin
to vote for a viable neo-Nazi candidate, The IRS did nothing about either case.
My guess si they would do nothing about it in your hypothetical either.

Marc

 









From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On
Behalf Of Anthony Picarello
Sent: Thursday, June 03, 2004
10:31 AM
To: Law
 & Religion issues for Law Academics
Subject: RE: Gay Activists
Threaten Church Tax-Exempt Status



 



How about:  "This moral
principle [pick from among the usual suspects] is so important to this
religious congregation that, if a congregant supports any candidate for
any office who actively subverts the principle -- or who even fails to
support the principle actively enough -- that congregant shall be excluded
from the congregation."





 





What result for the congregation when its
exemption is challenged?  Easy case, one way or the other?





 





-Original Message-
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of marc stern
Sent: Thursday, June 03, 2004
11:20 AM
To: 'Law
 & Religion issues for Law Academics'
Subject: RE: Gay Activists
Threaten Church Tax-Exempt Status

The IRS has spoken reasonably authoritatively
about this in its training manuals. By and large, unless the advocacy is
express (vote against candidate Q because of their stand on….)
pronouncements on policy “in the air” are not construed as
endorsements. Otherwise all not for profits would have to shut down every
election season.

Marc Stern

 









From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Anthony Picarello
Sent: Thursday, June 03, 2004 9:53
AM
To: Law
 & Religion issues for Law Academics
Subject: RE: Gay Activists
Threaten Church Tax-Exempt Status



 



The "susbtantial" limit on
lobbying does provide ample breathing room for most religious institutions,
including any bona fide house of worship I could imagine.  And there's
probably no limit on religious groups' advocacy re moral issues, where the
advocacy isn't also lobbying.





 





But there's no such latitude re
advocacy for candidates, and we are, after all, in an election year.  So I
expect that the candidate part of the limit will be asserted frequently in the
months to come, and it could well represent a meaningful threat.





 





-Original Message-
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of marc stern
Sent: Thursday, June 03, 2004 9:44
AM
To: 'Law
 & Religion issues for Law Academics'
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 

 









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

---

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 argume

RE: Gay Activists Threaten Church Tax-Exempt Status

[Anthony Picarello]

Title: Gay  Activists Threaten Church Tax-Exempt Status



How 
about:  "This moral principle [pick from among the usual suspects] is so 
important to this religious congregation that, if a congregant supports any 
candidate for any office who actively subverts the principle -- or who even 
fails to support the principle actively enough -- that congregant shall be 
excluded from the congregation."
 
What 
result for the congregation when its exemption is challenged?  Easy case, 
one way or the other?
 

  -Original Message-From: 
  [EMAIL PROTECTED] 
  [mailto:[EMAIL PROTECTED]On Behalf Of marc 
  sternSent: Thursday, June 03, 2004 11:20 AMTo: 'Law 
  & Religion issues for Law Academics'Subject: RE: Gay Activists 
  Threaten Church Tax-Exempt Status
  
  The IRS has spoken 
  reasonably authoritatively about this in its training manuals. By and large, 
  unless the advocacy is express (vote against candidate Q because of their 
  stand on….) pronouncements on policy “in the air” are not construed as 
  endorsements. Otherwise all not for profits would have to shut down every 
  election season.
  Marc 
  Stern
   
  
  
  
  
  From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of Anthony 
  PicarelloSent: Thursday, 
  June 03, 2004 9:53 AMTo: 
  Law & Religion issues for Law 
  AcademicsSubject: RE: Gay Activists Threaten 
  Church Tax-Exempt Status
   
  
  The "susbtantial" 
  limit on lobbying does provide ample breathing room for most religious 
  institutions, including any bona fide house of worship I could imagine.  
  And there's probably no limit on religious groups' advocacy re moral 
  issues, where the advocacy isn't also 
  lobbying.
  
   
  
  But there's no such 
  latitude re advocacy for candidates, and we are, after all, in an 
  election year.  So I expect that the candidate part of the limit will be 
  asserted frequently in the months to come, and it could well represent a 
  meaningful threat.
  
   
  
-Original 
Message-From: 
[EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED]On Behalf Of marc sternSent: Thursday, June 03, 2004 9:44 
AMTo: 'Law & Religion issues for Law 
Academics'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 

 




From: 
[EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Francis 
BeckwithSent: Thursday, 
June 03, 2004 8:16 AMTo: 
Religion Law Mailing ListSubject: Gay Activists Threaten Church 
Tax-Exempt StatusImportance: 
Low
 
Just got this from 
a friend.  It is published by “Focus on the Family,” a conservative 
Christian outfit in Colorado 
Springs. 
Frank---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 decis

"Parks will not block baptism"

[Volokh, Eugene]

From:Volokh, Eugene  To: [EMAIL PROTECTED]

Subject: FW: park will allow baptism Cc:
Parks will not block baptism

Church will be allowed to baptize member at Falmouth Waterfront Park on SundayBy 
MICHAEL ZITZ 

 Date published: 6/3/2004 River use still discouraged Fredericksburg-Stafford Park 
Authority officials say they won't interfere with the baptism of a mentally retarded 
man at Falmouth Waterfront Park planned for Sunday afternoon.

A bit of a national media flap arose after a dozen members of Cornerstone Baptist 
Church near Berea were baptized May 23 in the Rappahannock River as 50 congregation 
members looked on.

Park officials admonished Cornerstone's pastor, the Rev. Todd Pyle that day and told 
him river baptisms violated the Park Authority's unwritten policy. . . .

Park Manager Brian Robinson said yesterday that the situation has been twisted almost 
beyond recognition.

There is no park policy against religious activities, he said--merely a requirement 
that large groups of any kind get permits to use the park in advance.

Robinson has said churches and other groups typically rent space in shelters in the 
parks the authority oversees. The controversy grew after he said use of common areas 
of the park for religious events isn't allowed so that others are "forced to endure 
someone else's religion."

The Rev. John H. Reid, pastor of the New Generation Evangelical Episcopal Church, said 
yesterday that he has baptized 40 people at the Waterfront Park over the past six 
years and has no plans to ask for a permit.

Reid said that in addition to the man who will be baptized Sunday, there will probably 
be only 10 to 20 church members observing the sacrament. . . .

"We've never had a big crowd [at a baptism]," Reid said.

"And that's why they've never had any problem," Robinson said. "We wouldn't have an 
issue with that and wouldn't have a conversation with them."

Robinson said that if Cornerstone Baptist Church were to bring another large group in 
for baptisms--and it requested a permit--there would be no problem. 

But, he also said that because of the danger in the river, the Park Authority would 
not formally sanction the baptisms and would want to have personnel on hand in case 
something went wrong.

"We don't own the river and we can't prohibit it," Robinson said. . . .

http://www.fredericksburg.com/News/FLS/2004/062004/06032004/1385680 
 


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RE: Gay Activists Threaten Church Tax-Exempt Status

[marc stern]

Title: Gay  Activists Threaten Church Tax-Exempt Status








The IRS has spoken reasonably
authoritatively about this in its training manuals. By and large, unless the
advocacy is express (vote against candidate Q because of their stand on….)
pronouncements on policy “in the air” are not construed as endorsements.
Otherwise all not for profits would have to shut down every election season.

Marc Stern

 









From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Anthony Picarello
Sent: Thursday, June 03, 2004 9:53
AM
To: Law
 & Religion issues for Law Academics
Subject: RE: Gay Activists
Threaten Church Tax-Exempt Status



 



The "susbtantial" limit on
lobbying does provide ample breathing room for most religious institutions,
including any bona fide house of worship I could imagine.  And there's
probably no limit on religious groups' advocacy re moral issues, where the
advocacy isn't also lobbying.





 





But there's no such latitude re
advocacy for candidates, and we are, after all, in an election year.  So I
expect that the candidate part of the limit will be asserted frequently in the
months to come, and it could well represent a meaningful threat.





 





-Original Message-
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of marc stern
Sent: Thursday, June 03, 2004 9:44
AM
To: 'Law
 & Religion issues for Law Academics'
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 

 









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

---

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
  | Reprint Requests
 

 








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RE: Gay Activists Threaten Church Tax-Exempt Status

[Anthony Picarello]

Title: Gay  Activists Threaten Church Tax-Exempt Status



The 
"susbtantial" limit on lobbying does provide ample breathing room for most 
religious institutions, including any bona fide house of worship I could 
imagine.  And there's probably no limit on religious groups' advocacy 
re moral issues, where the advocacy isn't also lobbying.
 
But 
there's no such latitude re advocacy for candidates, and we are, after all, 
in an election year.  So I expect that the candidate part of the limit will 
be asserted frequently in the months to come, and it could well 
represent a meaningful threat.
 

  -Original Message-From: 
  [EMAIL PROTECTED] 
  [mailto:[EMAIL PROTECTED]On Behalf Of marc 
  sternSent: Thursday, June 03, 2004 9:44 AMTo: 'Law & 
  Religion issues for Law Academics'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 
  
   
  
  
  
  
  From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of Francis 
  BeckwithSent: Thursday, June 
  03, 2004 8:16 AMTo: Religion 
  Law Mailing ListSubject: Gay 
  Activists Threaten Church Tax-Exempt StatusImportance: 
  Low
   
  Just got this from a friend. 
   It is published by “Focus on the Family,” a conservative Christian 
  outfit in Colorado 
  Springs. 
  Frank---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 
  FamilyAll rights reserved. International copyright secured.(800) 
  A-FAMILY (232-6459)Privacy 
  Policy/Terms of Use 
    | Reprint Requests 
   
   
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Re: And "proselytizing" Re: religious "indoctrination"

[RJLipkin]

In a message dated 6/3/2004 9:05:59 AM Eastern Standard Time, 
[EMAIL PROTECTED] writes:
I donât think it 
  was fair of you to isolate my last sentenceâwhich, admittedly, I poorly 
  phrased--from the larger point I was making: we use terms like âjudgmental,â 
  âdogmas,â âsectarian,â etc. in ways that permit us not to carefully examine 
  them.
Of course I agree with 
Frank's larger point. I took the last sentence--"The one I particularly like is 
the guy who condemns "being judgmental," which of course, requires a 
judgment"--as equating "being judgmental" with "judging" in the same manner that 
some people equate "rejecting intolerance" with "being intolerant." Further, the 
language "[t]he one I particularly like" suggested (to me) that the sentence I 
quoted was significantly different from the rest of his post. I 
agreed with the rest of the post but not this last sentence. That is why I 
responded by quoting it only.  Moreover, I find the structure of the 
last sentence, one which too many people embrace especially when discussing 
intolerance, to be an obstacle to our understanding the nature of 
judgment or tolerance. I'm relieved that I 
misunderstood Frank, but I did not do so intentionally, and thus I 
think the charge of unfairness to be premature.

 
BobbyRobert Justin LipkinProfessor of 
LawWidener University School of 
LawDelaware
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Re: Gay Activists Threaten Church Tax-Exempt Status

[Marty Lederman]

Title: 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), 
and the recent contretemps concerning Bishop Sheridan's politicking (see http://www.au.org/site/News2?page=NewsArticle&id=6675&abbr=pr&JServSessionIdr012=rx1ae42ab1.app7b&security=1002&news_iv_ctrl=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.
 
- Original Message - 

  From: 
  marc 
  stern 
  To: 'Law & 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 
  
   
  
  
  
  
  From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of Francis 
  BeckwithSent: Thursday, June 
  03, 2004 8:16 AMTo: Religion 
  Law Mailing ListSubject: Gay 
  Activists Threaten Church Tax-Exempt StatusImportance: 
  Low
   
  Just got this from a friend. 
   It is published by “Focus on the Family,” a conservative Christian 
  outfit in Colorado 
  Springs. 
  Frank---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 sa

RE: Gay Activists Threaten Church Tax-Exempt Status

[marc stern]

Title: 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 

 









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

---

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
  | Reprint Requests
 

 






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Gay Activists Threaten Church Tax-Exempt Status

[Francis Beckwith]

Title: Gay  Activists Threaten Church Tax-Exempt Status



Just got this from a friend.  It is published by “Focus on the Family,” a conservative Christian outfit in Colorado Springs. 

Frank

---

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   | Reprint Requests  


 




<>
<>
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Re: And "proselytizing" Re: religious "indoctrination"

[Francis Beckwith]

Title: Re: And "proselytizing" Re: religious "indoctrination"



Robert:

I don’t in principle disagree with you.  In fact, your line of reasoning is precisely what I would like to see more of in the public square, one in which reasons are offered rather than names called.   Thus, I don’t think it was fair of you to isolate my last sentence—which, admittedly, I poorly phrased--from the larger point I was making: we use terms like “judgmental,” “dogmas,” “sectarian,” etc. in ways that permit us not to carefully examine them. Clearly, you are correct, there are judgments, dogmas and beliefs for which there seem to be no warrant.  But that was not my point.  To conscript my poorly phrased quit yet again, my point was that “being judgmental” is sometimes applied to people who do in fact have good reasons to hold their beliefs when those that issue this judgment are convinced that no such reasons exist.  

Frank






On 6/3/04 4:32 AM, "[EMAIL PROTECTED]" <[EMAIL PROTECTED]> wrote:

In a message dated 6/2/2004 10:34:11 PM Eastern Standard Time, [EMAIL PROTECTED] writes:
The one I particularly like is the guy who condemns "being
judgmental," which of course, requires a judgment.

    The above remark, I suspect, reveals the poverty of the 'reasoning' behind this sort of contention. There's a significant difference between "being judgmental" and "judgment." Condemning "being judgmental" involves rejecting certain types of judgments, judgments that are made for arguably insufficient or otherwise inadequate reasons, for example, judgments that condemn before attempting to see the other fellow's perspective, and so forth. (The above quoted perspective is similar to saying that it is intolerant to reject intolerance.  Or that one is being inegalitarian for rejecting those who embrace inequality. Whatever these remarks might mean.) The mere fact that Jones uses judgment to reject "being judgmental" hardly entails that Jones is "being judgmental" as the term is ordinarily  used in moral suasion. In short, the general class of judgments is considerably larger than the subclass of judgments that qualify as being judgmental. 
 
Bobby





Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware

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Re: And "proselytizing" Re: religious "indoctrination"

[RJLipkin]

In a message dated 6/2/2004 10:34:11 PM Eastern Standard Time, 
[EMAIL PROTECTED] writes:
The one 
  I particularly like is the guy who condemns "beingjudgmental," which of 
  course, requires a judgment.

The above remark, I 
suspect, reveals the poverty of the 'reasoning' behind this sort of contention. 
There's a significant difference between "being judgmental" and "judgment." 
Condemning "being judgmental" involves rejecting certain types of judgments, 
judgments that are made for arguably insufficient or otherwise inadequate 
reasons, for example, judgments that condemn before attempting to see the other 
fellow's perspective, and so forth. (The above quoted perspective is similar to 
saying that it is intolerant to reject intolerance.  Or that one is being 
inegalitarian for rejecting those who embrace inequality. Whatever these remarks 
might mean.) The mere fact that Jones uses judgment to reject "being 
judgmental" hardly entails that Jones is "being judgmental" as the term is 
ordinarily  used in moral suasion. In short, the general class of 
judgments is considerably larger than the subclass of judgments that qualify as 
being judgmental. 
 
BobbyRobert Justin LipkinProfessor of 
LawWidener University School of 
LawDelaware
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Re: And "proselytizing" Re: religious "indoctrination"

[Steven Jamar]

Don't forget "discriminating."
Although sometimes some people use words to label another's views 
negatively, or at least in the sense of "I disagree", that is not the 
only (or main) way those same words are used outside the political 
arena, or at least inside academic or serious discussion groups.  If 
one goes too far down the philosopher's game of trying to define every 
word and every nuance of every word and every possible interpretation 
of every possible word or if one goes too far down the pop-psyche game 
of seeing the psychological bias or motive behind each word, 
substantive communication becomes nearly impossible, or so tedious that 
many will be excluded from it.

I think we can agree that "being judgmental" is generally used in a 
negative way -- you are being improperly or inappropriately or unfairly 
judgmental -- as is the term "discriminating," -- despite their more 
narrow, possibly acceptable uses which do not carry the negative 
connotation.

Where we appear to disagree in part is the umph we put upon such words 
as "proselytizing".  I find it accurate and descriptive though I don't 
like it to be done to me univited -- so in that sense I do consider it 
a negative thing to do -- but disguising proselytizing with words like 
"sharing the good news" does not change the nature of the act one bit.  
And I dislike it just as much.  Even when it is someone with whom I 
substantively agree.

Steve

On Wednesday, June 2, 2004, at 10:34  PM, Francis Beckwith wrote:
On 6/2/04 9:08 PM, "Steven Jamar" <[EMAIL PROTECTED]> wrote:
Speak for yourself.  That is not how I use the words or how many 
people
I regularly discuss things with use them.  Your assumption that that 
is
how they are being used creates problems.
That would make me sectarian. :-)  All kidding aside, what I was 
trying to
say--in a somewhat humorous way--is that sometimes we use words (and I
include myself here) in ways that disguise disputed beliefs so that we 
don't
have to defend them.  So, my guy "shares the good news," the other guy
"proselytizes"; my faith is a "relationship" whereas the other guy's 
is a
"religion";  I believe in "principles" while the other fellow embraces
"dogmas."  The one I particularly like is the guy who condemns "being
judgmental," which of course, requires a judgment.

Frank

--
Prof. Steven D. Jamar   vox:  202-806-8017
Howard University School of Law fax:  202-806-8567
2900 Van Ness Street NW   mailto:[EMAIL PROTECTED]
Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/
"Love the pitcher less and the water more."
Sufi Saying
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