Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts

420 Pages·2010·1.7 MB·English

by  Nina J. Crimm

politics, taxes, and the pulpit
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politics, taxes, and the pulpit
provocative first amendment
conflicts

nina j. crimm

laurence h. winer
1
1

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Copyright © 2011 by Nina J. Crimm and Laurence H. Winer.
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Library of Congress Cataloging-in-Publication Data
Crimm, Nina J., 1952-
Politics, taxes, and the pulpit : provocative First Amendment conflicts / Nina J. Crimm, Laurence H. Winer.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-538805-3 (hardback : alk. paper)
1. Corporations, Religious—Taxation—Law and legislation—United States. 2. Church and state—
United States. 3. Freedom of speech—United States. I. Winer, Laurence H. II. Title.
KF6449.C748 2010
343.7306’6—dc22 2010020543
______________________________________________
1 2 3 4 5 6 7 8 9
Printed in the United States of America on acid-free paper
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To Nina’s brothers, Allan and Walter
&
To Laurence’s children, Jonathan and Rachel
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contents
Acknowledgments xi
Introduction 1
I. Passionate Watchmen 1
II. The Statutory and Constitutional Background in Brief 10
III. The Issues in Three Dimensions 17
IV. A Roadmap 2 1
chapter 1. how the government benefits religion 25
I. Introduction 25
II. Founding Stories: Quests for Religious Accommodations 28
III. Defi ning Religion 35
IV. Legislatively Created Accommodations for Religion 43
V. The Cumulative Effect of Religious Accommodations 55
VI. Conclusion 68
chapter 2. tax exemption for houses of worship: not a
foregone conclusion, yet conditional 71
I. Introduction 71
II. Religion and Taxes in Colonial America and the Early
American Republic 72
III. Cementing the Federal Income Tax Exemption for Religious
Organizations: Not A Foregone Conclusion 92
IV. Are the Income Tax Exemption and Contribution Deduction
Tax Subsidies to Houses of Worship? 103
V. The Prohibition on § 501(c)(3) Organizations’ Political
Campaign Speech 110
viii contents
VI. Problems Engendered by Broad, Vague, and Ambiguous
Legislation and IRS Interpretations 126
VII. Conclusion 145
chapter 3. do the first amendment’s religion clauses
mandate, permit, or prohibit congress’s taxing
houses of worship? 149
I. Introduction 149
II. The Religion Clauses: Congress’s Authority to Tax
Religious Organizations 152
III. Government Aid to Religion Factored Through
Individual Choice 178
IV. C onclusion 185
chapter 4. free speech and religiously motivated political
campaign speech—general principles 187
I. Introduction 187
II. Modern Free Speech Jurisprudence 190
III. The § 501(c)(3) Restriction on Political Campaign Speech 197
IV. Campaign Finance Reform: Lessons for Houses
of Worship 204
V. F ree Speech, Free Exercise, and the Establishment Clause 230
VI. Viewpoint Discrimination 249
VII. What Should Houses of Worship Do? 254
VIII. Conclusion 259
chapter 5. judicial review of the statutory ban on political
campaign speech 261
I. Introduction 261
II. Unconstitutional Conditions 263
III. Three Overlapping Judicial Approaches 282
IV. Balancing Interests 292
V. Conclusion 318
contents ix
chapter 6. reconciling the irreconcilable 321
I. Introduction: Our Proposals 321
II. Part One: Legislative Modifi cations to I.R.C. § 501(c)(3)
and § 170 326
III. Part Two: Creation of a New Tax Classifi cation
in I.R.C. § 501(c) 337
IV. Part Three: Amendment of I.R.C. § 527 and § 4955 352
V. Part Four: Clarity in Legislation and Regulation 356
VI. Our Proposals Compared to Other Approaches 357
VII. A Decision Awaits Congress 365
VIII. Conclusion 370
Appendices
1. Additional Tax and Nontax Benefi ts 373
2. The Potential Value of the State Property Tax Deduction
to Houses of Worship 381
Index 385