By Nina J. Crimm, Professor of Law, St. John's University School of Law, and Laurence H. Winer, Professor of Law, Sandra Day O'Connor College of Law at Arizona State University.
The Supreme Court's highly controversial decision last year in Citizens United v. FEC held unconstitutional federal campaign finance restrictions on corporations' political campaign speech. This result creates a strikingly anomalous situation. Analogous federal tax law that absolutely precludes political campaign speech by many nonprofit entities becomes all the more singular and problematic, particularly for houses of worship.
Many houses of worship and their religious leaders increasingly promote a highly vocal and influential role for religion in electoral politics. They address a plethora of emotionally charged moral and political issues for which religious beliefs and spiritual commitments are central for many people. Moreover, invoking spiritual mandates, many clergy go further to identify and comment on political candidates' positions as to these issues, either implicitly or explicitly endorsing or opposing candidates for political office.
These religious voices in the political and public spheres are applauded by some people but are deeply troublesome to others. One easily can doubt the wisdom of houses of worship becoming directly involved in electoral politics and, under an ingrained notion of the primacy of separation of church and state in America, doubt even more the propriety of such involvement. On the other hand the Supreme Court often extends the greatest protection to political speech. So, surely as a constitutional matter, one might think that political campaign speech from any source, including spiritual leaders in their capacity as representatives of houses of worship, especially if religiously compelled or motivated, at least must be tolerated if not always welcomed.
Yet, those who are troubled by such political participation by clergy point to tax advantages conferred on houses of worship, as section 501(c)(3) nonprofit organizations (along with other types of 501(c)(3) secular and religious entities), and their donors. Not only are houses of worship granted tax-exempt status under federal tax laws, but they alone are presumed to qualify automatically for the tax benefit, and their tax-itemizing donors are permitted to deduct contributions. These favorable tax treatments, generally considered the economic equivalent of government subsidies, are coercively and controversially conditioned by the tax code on spiritual leaders compromising their religious principles and entirely refraining from otherwise constitutionally protected political campaign speech. Taxpayers, the theory goes, should not be required to subsidize such partisan activity, especially if it is religiously based. But this absolute proscription attaches whether or not religious leaders' political campaign speech actually is financed by tax-exempt dollars, and regardless of whether the exhortations are confined to house of worship facilities during formal sermons, Bible, Torah, and Qur'an studies, and personal counseling sessions with adherents or are made in mass media publications or through such public domains as the Internet or Twitter.