Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts PDF
Preview Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts
politics, taxes, and the pulpit This page intentionally left blank politics, taxes, and the pulpit provocative first amendment conflicts nina j. crimm laurence h. winer 1 1 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Copyright © 2011 by Nina J. Crimm and Laurence H. Winer. Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 Oxford is a registered trademark of Oxford University Press Oxford University Press is a registered trademark of Oxford University Press, Inc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press, Inc. ______________________________________________ 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 Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confi rm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com To Nina’s brothers, Allan and Walter & To Laurence’s children, Jonathan and Rachel This page intentionally left blank 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
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