RE: Gay Activists Threaten Church Tax-Exempt Status
I agree that there is more of an argument about Establishment Clause distortion with regard to lobbying on issues and legislation -- once we take candidate electioneering out of the mix. On the other hand, I think it is much less likely that clergy will be successfully challenged for speaking out on issues. Indeed, once we take candidate electioneering out of the picture, is it clear that any limit actually exists on what clergy may say about issues and legislation when they speak from the pulpit or write pastoral letters (assuming that the Pastor or Rabbi isn't turning a house of worship into the headquarters of an initiative campaign or lobbying effort -- and if they are going to engage in that kind of effort, why shouldn't they organize an affiliate to do so?) While this thread may have started with a post on issues and legislation, now that I think about it, it is not clear to me that this is a real problem for clergy as long as substantial resources are not being committed to a lobbying effort. And if the goal is to commit substantial resources to a lobbying effort or an initiative campaign, then the reason for not wanting to use an affiliate seems less persuasive to me. I understand that some people may complain about a sermon discussing political issues or legislation. But do those complaints ever get anywhere? At least on the local level, I see clergy lobbying local decision-making bodies all the time. I agree completely with Tom's last point (although I think speech regulations require a distinct approach). There are two religion clauses. They should not be interpreted in isolation from each other without regard to their impact on religion as a source of values and beliefs and as a cultural and political influence on society. Proponents of a rigorously enforced Establishment clause ought to recognize the limits placed on religion by this mandate and should support rigorous free exercise protection for religious institutions and practice. Similarly, proponents of a vigorously enforced free exercise jurisprudence should appreciate the advantages constitutional protection provides and accept Establishment Clause restrictions on the state promotion of religion. That's only part of the picture in interpreting the religion clauses, but it is certainly an important part. Alan Brownstein UC Davis I At 06:12 PM 6/9/2004 -0500, you wrote: I won't quarrel about Rust, which I'm not fond of as a constitutional decision in the first place -- as Marty originally noted, it gives too little consideration to the spillover cost involved in segregating constitutionally protected activity into an entirely different entity or facility from the subsidized one. I appreciate Alan's point about the restrictions on candidate electioneering. But I don't think that his argument carries over to the restriction on lobbying concerning issues or legislation, which is what began this thread. Government speaks on those issues, and it can only speak in secular terms and rationales, at least if the Establishment Clause is interpreted vigorously. There thus remains an issue about a distortion of the public sphere in favor of the secular. As I said, one might respond to that secularization of the public sphere in various ways. One response would be special concern for protecting religious speech in public; another is special concern for protecting conscientious religious exercise. My intuition is that the latter would tend to favor publicly active faiths, and maybe larger ones, while the latter would tend to benefit more private faiths and smaller ones. But the thing that one shouldn't do is complain about "special protection" for religion without taking into account the special limits placed on religion in the context of government speech and rationales. Tom Berg _ From: A.E. Brownstein [mailto:[EMAIL PROTECTED] Sent: Wed 6/9/2004 4:56 PM To: Law & Religion issues for Law Academics Subject: RE: Gay Activists Threaten Church Tax-Exempt Status Sorry to be late in responding to Tom's post, but I was out of town. On the first point, Tom and I share very different intuitions. If we are basing claims on the relationship between duty or function and message, I would think a physician in a family planning clinic has a at least as strong if not a stronger claim to the right to inform patients about medical choices germane to the specific health issues which brought to patient to his or her office as a member of the clergy does to utilize his or her pulpit for electioneering purposes. On the broader question Tom raises, I certainly agree that some sense of balance, or quid pro quo offsets, or neutrality influences the relationship between religion specific accommodations or exemptions grounded on free exercise concerns and religion specific limitations grounded on Establishment clause concerns. Working out how that ledger is to be ba
RE: Gay Activists Threaten Church Tax-Exempt Status
I won't quarrel about Rust, which I'm not fond of as a constitutional decision in the first place -- as Marty originally noted, it gives too little consideration to the spillover cost involved in segregating constitutionally protected activity into an entirely different entity or facility from the subsidized one. I appreciate Alan's point about the restrictions on candidate electioneering. But I don't think that his argument carries over to the restriction on lobbying concerning issues or legislation, which is what began this thread. Government speaks on those issues, and it can only speak in secular terms and rationales, at least if the Establishment Clause is interpreted vigorously. There thus remains an issue about a distortion of the public sphere in favor of the secular. As I said, one might respond to that secularization of the public sphere in various ways. One response would be special concern for protecting religious speech in public; another is special concern for protecting conscientious religious exercise. My intuition is that the latter would tend to favor publicly active faiths, and maybe larger ones, while the latter would tend to benefit more private faiths and smaller ones. But the thing that one shouldn't do is complain about "special protection" for religion without taking into account the special limits placed on religion in the context of government speech and rationales. Tom Berg _ From: A.E. Brownstein [mailto:[EMAIL PROTECTED] Sent: Wed 6/9/2004 4:56 PM To: Law & Religion issues for Law Academics Subject: RE: Gay Activists Threaten Church Tax-Exempt Status Sorry to be late in responding to Tom's post, but I was out of town. On the first point, Tom and I share very different intuitions. If we are basing claims on the relationship between duty or function and message, I would think a physician in a family planning clinic has a at least as strong if not a stronger claim to the right to inform patients about medical choices germane to the specific health issues which brought to patient to his or her office as a member of the clergy does to utilize his or her pulpit for electioneering purposes. On the broader question Tom raises, I certainly agree that some sense of balance, or quid pro quo offsets, or neutrality influences the relationship between religion specific accommodations or exemptions grounded on free exercise concerns and religion specific limitations grounded on Establishment clause concerns. Working out how that ledger is to be balanced is no easy job -- although Tom is correct that I think it is better accomplished by exempting religious practices and institutions from government interference and control while maintaining a regime of viewpoint neutrality with regard to public and political expression. But however one ultimately works that issue out, I think the case for providing religious leaders speech exemptions for partisan electioneering is extremely weak. Unlike moral, policy, or ethical issues, where the Establishment Clause limits religious expression by government while permitting the expression of secular perspectives by state agencies, there is considerable uniformity with regard to the ban on partisan electioneering. Government agencies and institutions are prohibited from using their resources and status to support political candidates (at least in their official capacities) just as they are prohibited from using their resources and status to support religious messages. On this issue, there is no Establishment Clause distortion to correct or offset because government does not play a partisan expressive role. Secular messages supporting particular candidates get no preference over religious messages supporting candidates because government agencies and institutions do not officially support candidates for election. Alan Brownstein UC Davis At 01:46 PM 6/6/2004 -0500, you wrote: >I'm not sure that the doctors in Rust had the same kind of claim that they >needed to speak in their capacity in the funded program. The Court said >that the Title X programs did not purport to be giving general medical >advice -- while churches may and do propose to speak as a unitary matter on >all aspects of life. There also is a good argument for some distinction >between tax exemptions and affirmative government aid (the distinction >recognized in Walz v. Tax Commission). > >But let me raise a broader issue, which I think Alan and I have discussed on >list before. Why must we hold that religious speech may *never -- no matter >what the circumstances --* receive any protection that comparable secular >speech does not receive? Why can't truly privately-initiated religious >speech sometimes receive more protection than secular counterparts, if there >is otherwise a strong case for such protection? (A &q
RE: Gay Activists Threaten Church Tax-Exempt Status
But we should also recognize that this restriction itself affects the marketplace of ideas, with an increasing effect as the restriction becomes more and more unbending. Perhaps this fact requires or allows some special concern that private entities *not* be restricted in espousing religious views in the ideological marketplace. Two central sentences in Lee v. Weisman, taken together, might summarize this outlook: "In religious debate or expression the government is not a prime participant, for the Framers deemed religious establishment antithetical to the freedom of all." "The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission." Along with the distinctive restriction on government transmission of religious beliefs comes a distinctive promise to private religious entities that they can transmit their beliefs -- logically, quite independent of whether secular beliefs and perspectives can be transmitted. I don't have a theory worked out about how far this distinctive protection -- this compensation for the disability on government religious speech -- can or should go. Perhaps it shouldn't apply to political speech such as lobbying or electioneering; perhaps it should be limited to religiously grounded conduct as opposed to speech, as I think Alan might respond. All I'm saying is that the governing assumption that religious speech by private entities must always be treated no better than secular speech needs to be explicitly defended -- as against the claim that the marketplace of ideas is already skewed by the bar on government explicitly espousing religious ideas. Tom Berg _ From: A.E. Brownstein [mailto:[EMAIL PROTECTED] Sent: Fri 6/4/2004 12:44 PM To: Law & Religion issues for Law Academics Subject: RE: Gay Activists Threaten Church Tax-Exempt Status Thanks, Tom. Your post and Doug's are helpful (at least to me). I think you are both right that a religious leader technically on the payroll of a (c)(4) organization who delivered regular partisan political sermons from the church pulpit or through pastoral letters would raise questions from the IRS. But it seems to me that this alters the discussion a bit. The focus is not so much on an individual's role as a spiritual leader, but on the location, format, and forum in which they engage in political activities. I certainly agree that any government control over what occurs in a religious service in a house of worship raises free exercise issues. It is far less clear to me those issues can be resolved in the manner you propose. Here, free exercise and free speech values are intractably intermingled. And if the focus is location and forum, then the range of analogies from a free speech perspective is far broader than you suggest. I am not sure there is any sound basis for limiting this issue from a speech perspective to the ability of non-profits to engage in partisan political activities. The question should be whether it is constitutionally problematic for government to require segregation of organizations engaged in subsidized or non-subsidized expressive activities whenever there is a distinct normative claim for operating in a more unitary format. Clearly, the physicians in Rust could raise such an argument about their normative duties as doctors -- and other professionals would have similar arguments. Also, I don't see how grounding the discriminatory rule you propose on a unique, normative distinction that in practical terms applies only to religious institutions resolves the viewpoint discrimination issue here. If courts are unwilling to recognize distinctive aspects of religion as a basis for permitting government to discriminate against religious speakers, I find it difficult to accept that the position that distinctive aspects of religion can be used to justify discrimination in favor of religious speakers. Accommodations that do not directly involve expressive activities, like the draft cases, raise very different questions and are more easily justified through formal generalizations. Accommodations of religion that distinctively empower religious messages and political influence raise particularly problematic concerns. Alan Brownstein UC Davis ___ 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 ___ 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
RE: Gay Activists Threaten Church Tax-Exempt Status
There is actually an IRS training manual which suggests that even when a pastor speaks from the pulpit, if the endorsement is labeled personal, it will not automatically cost the church its exemption. In any event I am hard pressed to see why members of the clergy are differently situated that the President of People For or the ACLU or the Federalist Society who face identical restrictions. Even before Smith the Court had held that the Free Speech rights of churches were not greater than those of secular groups. Minnesota State Fair case). Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Friday, June 04, 2004 10:22 AM To: Law & Religion issues for Law Academics Subject: Re: Gay Activists Threaten Church Tax-Exempt Status I was making only Marty's point (ii). As to his point (i), If the church wants to buy media time for political ads, it can do that through the 501(c)(4) affiliate as well as anyone else. But if the pastor, or the rabbi, or the archbishop, wants to urge his faithful to support the candidate that is more willing to feed the hungry, it is not remotely the same to have that message come from Joe Doaks at the 501(c)(4) affiliate. And if the religious leader wants to speak on this issue from the pulpit, or in a pastoral letter, it doesn't help to put him on the payroll of the 501(c)(4) affiliate for 10% of his time. I think that lawyers for churches -- at least those who pay attention to the periodic warnings from the IRS on this issue -- believe that if the religious leader of the church speaks, his speech will be attributed to the church itself and not to any affiliate. The bottom line is that the rule censors pastors in the pulpit, and that is a constitutional problem. At 02:12 PM 6/3/2004 -0400, you wrote: 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: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 fairl
RE: Gay Activists Threaten Church Tax-Exempt Status
I'm not sure that the doctors in Rust had the same kind of claim that they needed to speak in their capacity in the funded program. The Court said that the Title X programs did not purport to be giving general medical advice -- while churches may and do propose to speak as a unitary matter on all aspects of life. There also is a good argument for some distinction between tax exemptions and affirmative government aid (the distinction recognized in Walz v. Tax Commission). But let me raise a broader issue, which I think Alan and I have discussed on list before. Why must we hold that religious speech may *never -- no matter what the circumstances --* receive any protection that comparable secular speech does not receive? Why can't truly privately-initiated religious speech sometimes receive more protection than secular counterparts, if there is otherwise a strong case for such protection? (A "strong case" might include, e.g., a distinctive feature of religion like a doctrinally mandated polity; a major burden on the religious speech; and no compelling reason to restrict the speech.) The answer, reflected in Alan's previous posts, is that greater protection would distort the marketplace of ideas in favor of religious speech. But isn't there already some distortion of the marketplace of ideas *against* religious speech because of the fact that the many entities of government -- which are of course significant participants in political and ideological debate -- cannot espouse any religious ideas, or any explicitly religious arguments for their proposed public policies? Governments can explicitly espouse secular ideas and rationales, but not religious ones. (That I took to be Alan's position in the discussion that arose out of the Pledge case, and I assume it is the position of many if not most people who think that religious speech should get no more protection than secular speech.) Although governments also cannot espouse explicitly anti-religious views, it seems to me that this is less of a burden on the "anti-religious", because secular views logically overlap more with anti-religious views than with religious views. The person who rejects religious views as a basis for addressing issues usually affirmatively relies on secular views instead, and therefore can be quite happy with secular arguments by government -- whereas the serious religious believer has to think that to speak about issues in wholly secular terms misses an important element. There are good reasons, in my view, to keep the government out of explicitly espousing religious views and religious perspectives. But we should also recognize that this restriction itself affects the marketplace of ideas, with an increasing effect as the restriction becomes more and more unbending. Perhaps this fact requires or allows some special concern that private entities *not* be restricted in espousing religious views in the ideological marketplace. Two central sentences in Lee v. Weisman, taken together, might summarize this outlook: "In religious debate or expression the government is not a prime participant, for the Framers deemed religious establishment antithetical to the freedom of all." "The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission." Along with the distinctive restriction on government transmission of religious beliefs comes a distinctive promise to private religious entities that they can transmit their beliefs -- logically, quite independent of whether secular beliefs and perspectives can be transmitted. I don't have a theory worked out about how far this distinctive protection -- this compensation for the disability on government religious speech -- can or should go. Perhaps it shouldn't apply to political speech such as lobbying or electioneering; perhaps it should be limited to religiously grounded conduct as opposed to speech, as I think Alan might respond. All I'm saying is that the governing assumption that religious speech by private entities must always be treated no better than secular speech needs to be explicitly defended -- as against the claim that the marketplace of ideas is already skewed by the bar on government explicitly espousing religious ideas. Tom Berg _ From: A.E. Brownstein [mailto:[EMAIL PROTECTED] Sent: Fri 6/4/2004 12:44 PM To: Law & Religion issues for Law Academics Subject: RE: Gay Activists Threaten Church Tax-Exempt Status Thanks, Tom. Your post and Doug's are helpful (at least to me). I think you are both right that a religious leader technically on the payroll of a (c)(4) organization who delivered regular partisan political sermons from the church pulpit or through pastoral letters would raise questions from the I
RE: Gay Activists Threaten Church Tax-Exempt Status
ne: (651) 962-4918 Fax: (651) 962-4996 [EMAIL PROTECTED] -Original Message- From: A.E. Brownstein [mailto:[EMAIL PROTECTED] Sent: Thursday, June 03, 2004 1:44 PM To: Law & Religion issues for Law Academics Subject: RE: Gay Activists Threaten Church Tax-Exempt Status 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 > > &
RE: Gay Activists Threaten Church Tax-Exempt Status
I wonder if thinking about the President of the United States might be useful here. Clearly, the fact that he is President gives him a certain charismatic authority, and that authority is linked to the office that he holds. At the same time, Presidents generally serve as the de facto head of their political parties. Now obviously the Presidency is not a 501(c)(3) in danger of losing its tax exempt status if the President engages in partisan speech. On the other hand, we do have regulations about his ability to use the office of President for partisan political purposes. We require that Presidents set up seperate entities for political purposes. Furthermore, it seems that these requirements are about more than simply the use of government funds. For example, it is my understanding that the President cannot use the presidential seal on partisan political materials, etc., even though the "presidentialness" conveyed by the seal is at the heart of the political message that every incumbent President wants to use at reelection time. Does this constitute a secular example of the sort of problem that Berg and Doug see? Nate Oman -- Original Message -- From: "Berg, Thomas C." <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]> Date: Fri, 4 Jun 2004 11:08:41 -0500 >(An earlier version of this got lost in cyberspace, apparently.) > >>From the religious standpoint, I think the concern is that the leader of the >faith community -- say, the diocesan bishop -- should also be the leader and >teacher in public pronouncements on moral and social issues, and should be >able to do so in his capacity as spiritual leader -- as Doug puts it, from >the pulpit or in a pastoral letter. The concern would be that the IRS would >view such an overlap in organizational leaders and spokespersons -- and in >the forum for the two pronouncements -- as evidence of a failure to >segregate the two organizations. If the IRS withdraws the tax exemption on >that basis, it would mean that the church lost the exemption -- for its >charitable, non-political activities as well -- as the price of following >its doctrinally mandated organizational structure. By losing the exemption >for *all* of its activities, the church is suffering a penalty. > >As I said, in theory a secular organization could have a similar doctrinal >belief that the leader and public teacher/spokesperson on its exempt >activities must also be the leader and public teacher/spokesperson on its >non-exempt (i.e. legislation-related) activities. But like Doug, I can't >think of a secular example where the organization believes this as a matter >of conscientious doctrine. It may be more convenient, less costly, more >effective, etc. for the same people to do both -- that would indeed be true >for all organizations, not distinctively so for churches. But I'm talking >about a different concern, the conscientious tenet about who should speak. >Is there a secular organization that is comparable to certain religious >groups in that it has a conscientious belief, as part of its doctrines, that >certain leaders must be the public teachers and spokespersons on all issues? > >Again, perhaps the most that this shows is that all such groups have some >distinctive normative claim to accommodation, whether they are religious or >secular. If there is such a claim, then since it seems that the vast >majority of such groups would be religious, wouldn't the better course be to >accommodate them under RFRA, and then fashion a similar accommodation for >the occasional secular group that might come along? (Analogous to Harlan's >expanding the draft exemption in Welsh.) > >Tom Berg > > >*** >Thomas C. Berg >University of St. Thomas School of Law >Mail # MSL 400 >1000 La Salle Avenue >Minneapolis, MN 55403-2015 >Phone: (651) 962-4918 >Fax: (651) 962-4996 >[EMAIL PROTECTED] > >**** > > >-----Original Message- >From: A.E. Brownstein [mailto:[EMAIL PROTECTED] >Sent: Thursday, June 03, 2004 1:44 PM >To: Law & Religion issues for Law Academics >Subject: RE: Gay Activists Threaten Church Tax-Exempt Status > > >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 c
RE: Gay Activists Threaten Church Tax-Exempt Status
(An earlier version of this got lost in cyberspace, apparently.) >From the religious standpoint, I think the concern is that the leader of the faith community -- say, the diocesan bishop -- should also be the leader and teacher in public pronouncements on moral and social issues, and should be able to do so in his capacity as spiritual leader -- as Doug puts it, from the pulpit or in a pastoral letter. The concern would be that the IRS would view such an overlap in organizational leaders and spokespersons -- and in the forum for the two pronouncements -- as evidence of a failure to segregate the two organizations. If the IRS withdraws the tax exemption on that basis, it would mean that the church lost the exemption -- for its charitable, non-political activities as well -- as the price of following its doctrinally mandated organizational structure. By losing the exemption for *all* of its activities, the church is suffering a penalty. As I said, in theory a secular organization could have a similar doctrinal belief that the leader and public teacher/spokesperson on its exempt activities must also be the leader and public teacher/spokesperson on its non-exempt (i.e. legislation-related) activities. But like Doug, I can't think of a secular example where the organization believes this as a matter of conscientious doctrine. It may be more convenient, less costly, more effective, etc. for the same people to do both -- that would indeed be true for all organizations, not distinctively so for churches. But I'm talking about a different concern, the conscientious tenet about who should speak. Is there a secular organization that is comparable to certain religious groups in that it has a conscientious belief, as part of its doctrines, that certain leaders must be the public teachers and spokespersons on all issues? Again, perhaps the most that this shows is that all such groups have some distinctive normative claim to accommodation, whether they are religious or secular. If there is such a claim, then since it seems that the vast majority of such groups would be religious, wouldn't the better course be to accommodate them under RFRA, and then fashion a similar accommodation for the occasional secular group that might come along? (Analogous to Harlan's expanding the draft exemption in Welsh.) Tom Berg *** Thomas C. Berg University of St. Thomas School of Law Mail # MSL 400 1000 La Salle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 [EMAIL PROTECTED] -Original Message- From: A.E. Brownstein [mailto:[EMAIL PROTECTED] Sent: Thursday, June 03, 2004 1:44 PM To: Law & Religion issues for Law Academics Subject: RE: Gay Activists Threaten Church Tax-Exempt Status 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 >
Re: Gay Activists Threaten Church Tax-Exempt Status
Maybe if a secular 501(c)(3) has a well known leader who has built up special credibility with his members, there might be a similar problem. But the IRS may also be much more likely to accept the defense that that leader is partly on the payroll of the 501(c)(4). It looks impossibly fictional when the pastor claims to speak for the 501(c)(4), because he does not, and really cannot, shed his religious authority. The fiction is more tenable for a secular leader who speaks in a secular capacity for either organization. I don't know what the IRS says or thinks about a secular leader wearing two hats, but the reason I don't know may be that prominent examples hardly ever arise. In any event, I have no stake in arguing that no secular groups have a similar claim to the one I suggested with respect to churches. If some of their leaders are effectively prevented from speaking on candidates addressing issues important to the organization, I think they have a troubling free speech claim too. A pastor addressing moral issues from the pulpit is about as core an example of free speech and free exercise as one can imagine, and an asserted compelling interest in censoring that speech would have to be compelling indeed. At 10:21 AM 6/4/2004 -0500, Douglas Laycock wrote: I was making only Marty's point (ii). As to his point (i), If the church wants to buy media time for political ads, it can do that through the 501(c)(4) affiliate as well as anyone else. But if the pastor, or the rabbi, or the archbishop, wants to urge his faithful to support the candidate that is more willing to feed the hungry, it is not remotely the same to have that message come from Joe Doaks at the 501(c)(4) affiliate. And if the religious leader wants to speak on this issue from the pulpit, or in a pastoral letter, it doesn't help to put him on the payroll of the 501(c)(4) affiliate for 10% of his time. I think that lawyers for churches -- at least those who pay attention to the periodic warnings from the IRS on this issue -- believe that if the religious leader of the church speaks, his speech will be attributed to the church itself and not to any affiliate. The bottom line is that the rule censors pastors in the pulpit, and that is a constitutional problem. At 02:12 PM 6/3/2004 -0400, you wrote: 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: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:
Re: Gay Activists Threaten Church Tax-Exempt Status
If I'm understand you corerctly, Doug, you're arguing that the restrictions as applied to the religious leader are more constitutionally problematic than as applied to the leader of a nonreligious 501, because urging the faithful from the pulpit to vote for X is "not remotely the same" as the nonreligious leader urging a different (diffuse and/or secular) audience to vote for X. Of course, the impact generally will be different, because the religious leader speaks from religious authority to the faithful, and thus presumably is more effective at persuading her audience than is the nonreligious leader. I understand why the state therefore would have an even greater interest in ensuring that tax benefits are not used to facilitate that (very effective) partisan speech. But why would the religious leader's constitutional injury be any greater than that of her secular counterpart? - Original Message - From: Douglas Laycock To: Law & Religion issues for Law Academics Sent: Friday, June 04, 2004 11:21 AM Subject: Re: Gay Activists Threaten Church Tax-Exempt Status I was making only Marty's point (ii). As to his point (i), If the church wants to buy media time for political ads, it can do that through the 501(c)(4) affiliate as well as anyone else.But if the pastor, or the rabbi, or the archbishop, wants to urge his faithful to support the candidate that is more willing to feed the hungry, it is not remotely the same to have that message come from Joe Doaks at the 501(c)(4) affiliate. And if the religious leader wants to speak on this issue from the pulpit, or in a pastoral letter, it doesn't help to put him on the payroll of the 501(c)(4) affiliate for 10% of his time. I think that lawyers for churches -- at least those who pay attention to the periodic warnings from the IRS on this issue -- believe that if the religious leader of the church speaks, his speech will be attributed to the church itself and not to any affiliate. The bottom line is that the rule censors pastors in the pulpit, and that is a constitutional problem.At 02:12 PM 6/3/2004 -0400, you wrote: 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: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
Re: Gay Activists Threaten Church Tax-Exempt Status
I was making only Marty's point (ii). As to his point (i), If the church wants to buy media time for political ads, it can do that through the 501(c)(4) affiliate as well as anyone else. But if the pastor, or the rabbi, or the archbishop, wants to urge his faithful to support the candidate that is more willing to feed the hungry, it is not remotely the same to have that message come from Joe Doaks at the 501(c)(4) affiliate. And if the religious leader wants to speak on this issue from the pulpit, or in a pastoral letter, it doesn't help to put him on the payroll of the 501(c)(4) affiliate for 10% of his time. I think that lawyers for churches -- at least those who pay attention to the periodic warnings from the IRS on this issue -- believe that if the religious leader of the church speaks, his speech will be attributed to the church itself and not to any affiliate. The bottom line is that the rule censors pastors in the pulpit, and that is a constitutional problem. At 02:12 PM 6/3/2004 -0400, you wrote: 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: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 aire
Re: Gay Activists Threaten Church Tax-Exempt Status
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 an
RE: Gay Activists Threaten Church Tax-Exempt Status
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 <http://www.nytimes.com/2004/06/03/politics/campaign/03CHUR.html?hp> ), and the recent contretemps concerning Bishop Sheridan's politicking (see http://www.au.org/site/News2?page=NewsArticle <http://www.au.org/site/News2?page=New
RE: Gay Activists Threaten Church Tax-Exempt Status
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:
[E
RE: Gay Activists Threaten Church Tax-Exempt Status
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
RE: Gay Activists Threaten Church Tax-Exempt Status
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 ow
RE: Gay Activists Threaten Church Tax-Exempt Status
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 <http://www.nytimes.com/2004/06/03/politics/campaign/03CHUR.html?hp> ), and the recent contretemps concerning Bishop Sheridan's politicking (see http://www.au.org/site/News2?page=NewsArticle <http://www.au.org/site/News2?page=NewsArticle&id=6675&abbr=pr&JServSessionI dr012=rx1ae42ab1.app7b&security=1002&news_iv_ctrl=1241> &id=6675&abbr=pr&JServSessionIdr012=rx1ae42ab1.app7b&security=1002&news_iv_c trl=1241). In addition to Marc Stern's point, I'd add that it's long struck me as odd that this is viewed as a serious constitutional issue. All nonprofits that wish to receive the tax benefit, religious and secular, churches and other entities, are limited in the amount of electioneering they can do. If there's a problem with this condition, it's a policy, not a constitutional, concern (see, e.g., Regan), and is not limited to churches. Even pre-Smith, any Free Exercise claim would have been on extremely weak ground (on "substantial burden" grounds, primarily); and post-Smith, it's difficult to see what the claim would be. Moreover, if the IRS were to allow churches, but not secular nonprofits, to use tax benefits to engage in electioneering, that would be a fairly straightforward Free Speech violation (giving a religious preference w/r/t to core political expression), and would raise serious Establishment Clause questions, as well. As Chip Lupu has written w/r/t this tax-exemption, "the area of political activity is one in which the claim to the constitutional uniqueness of religion is unusually weak, and the claim to equal participation by all is unusually strong." Having said that, I should note that Rick Garnett and Steffen Johnson advanced serious arguments against the condition in the July 2001 Boston College Law Review. Although I haven't read those pieces in a while, I recall thinking that they were quite formidable, if ultimately unpersuasive to this reader. - Original Message - From: marc stern <mailto:[EMAIL PROTECTED]> To: 'Law <mailto:[EMAIL PROTEC
RE: Gay Activists Threaten Church Tax-Exempt Status
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
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: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. "
RE: Gay Activists Threaten Church Tax-Exempt Status
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
RE: Gay Activists Threaten Church Tax-Exempt Status
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
RE: Gay Activists Threaten Church Tax-Exempt Status
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
RE: Gay Activists Threaten Church Tax-Exempt Status
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 ___ 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
Re: Gay Activists Threaten Church Tax-Exempt Status
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 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 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&#x
RE: Gay Activists Threaten Church Tax-Exempt Status
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 ___ 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
