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.
Our book examines this volatile mix of religion, electoral politics, and taxes in the context of multi-faceted constitutional tensions engendered among all fundamental values embodied in the First Amendment: free speech and free press, the free exercise of religion, and the avoidance of government establishment of religion. We first explore the history of taxation of houses of worship and highlight that the now entrenched and highly prized federal income tax exemption for houses of worship was never justified on the basis of the religious nature of houses of worship as opposed to their presumed charitable functions. We explain that the federal income tax exemption for houses of worship (and other section 501(c)(3) entities) existed for many years as a subsidy for religion, without restriction on their political campaign speech. The political and legislative history demonstrates the subsequent ban is, at least partially, a product of self-interested, political opportunism and not an artifact of congressional First Amendment concerns.
We discuss various possible considerations and approaches to the First Amendment principles and precedents that inform and govern the controversial debate on this intersection of electoral politics, taxes, and the pulpit. We reflect on Supreme Court jurisprudence on aid to religion, focusing on the distinct subset of aid for parochial schools, to demonstrate the importance of "true private choice" as an element in channeling government money into sectarian-affiliated institutions. The Court increasingly relies on such individual choice as critical to its Establishment Clause neutrality analysis of church-state relations, and as significant for reducing tension between the Free Exercise Clause and the Establishment Clause. While this underappreciated element becomes key in our design of legislative proposals for reform of the federal tax provisions, we first confront directly the tension that the ban on political campaign speech creates by inducing houses of worship, through the offer of financial support, into relinquishing core constitutional rights and succumbing to a quasi prior restraint.
In doing so, we focus on the considerable jurisprudence of the doctrine of unconstitutional conditions that many scholars find fundamentally incoherent. We contemplate how a judicial challenge to the ban might proceed under various related judicial approaches, as well as the substantial procedural and substantive impediments to court review. We posit that under widely accepted free speech and free exercise principles (as well as under the Religious Freedom Restoration Act), strict scrutiny review would be necessary. In discussing the nuanced balancing of the competing interests at stake and drawing upon campaign finance cases, we consider the adequacy of a house of worship using an alternative means of communication through a separate non-section 501(c)(3) entity that some commentators present as an answer to the political campaign speech dilemma. In the end, we suggest that judicial remedy to the constitutionally troubling nature of the current system is highly problematic and ultimately unsatisfactory.
This conclusion leaves a great need for statutory reforms. We acknowledge that there are no means of fully resolving the irreconcilable clashes in a constitutionally permissible and politically and socially palatable manner. Nonetheless, we offer several feasible legislative proposals for reform of the tax provisions that should generate considerable discussion. Our suggestions treat houses of worship specially in one regard but also include modifications applicable to other religious and secular 501(c)(3) organizations. If the proposed reforms are implemented by Congress, they should substantially ameliorate the very disquieting constitutional tensions induced by the current tax laws and curb the growing emotionally charged atmosphere about the role of religion in the public sphere.