Academic

Are Ministers Who Endorse Political Candidates Constitututionally Entitled to a Tax Subsidy?

By Calvin Massey

    The Alliance Defense Fund has organized "Pulpit Freedom Sunday," in which various ministers will explicitly endorse a presidential candidate from the pulpit.  The point of this exercise is to goad the IRS into cancelling the churches tax-exempt status under IRS Code section 501(c)(3), which permits donors to deduct their contributions as charitable contributions.  501(c)(3) status is not permitted to any charity that "participate[s] in, or intervene[s] in (including the publishing or distributing of statements), any political campaign on behalf of or in opposition to any candidate for public office."  The ADF's White Paper details its constitutional objections:  (1) it violates free speech, (2) the establishment clause, and (3) the free exercise clause.  Let's take a look.

  1. Free Speech.  Regan v. Taxation With Representation held that the denial of tax-exempt status to a non-profit organization that proposed to engage in lobbying (prohibited by 501(c)(3)) was permissible because the government was entitled to choose the activities it wishes to subsidize.  No penalty was involved because the organization was free to use its own funds to lobby.  The same principle applies here.  A church can use its own funds (collected without deductibility to the donor) to endorse candidates. 

  2. Free Exercise.  Employment Division v. Smith held that a generally applicable law that does not single out religious conduct, and which is neither part of a scheme of individual benefit eligibility (e.g., unemployment compensation) nor coupled with another constitutional claim (a "hybrid claim") is presumed to  be valid.  Minimal scrutiny applies.   501(c)(3) states a rule generally applicable to all charities that wish to obtain tax-exempt status.  It may be that a hybrid claim is present here, but the unresolved question is what level of plausibility must be attached to both claims to trigger strict scrutiny.  In some circuits the claims must only be "colorable," in others each must be independently viable.  Mere pleading two claims is not enough anywhere.  So the hybrid claim argument is unavailing unless the next claim is at least colorable, and then only in those circuits that accept this as the standard for hybrid claims.

  3. Establishment Clause.  ADF's argument is that, as applied to churches, the rule requires government to parse religious speech to sift the theological from the political, and this constitutes excessive entanglement under Lemon v. Kurtzman.  Although Agostini folded the excessive entanglement prong into the effects prong of Lemon, the ADF might have something here.  There is a problem if issue advocacy from the pulpit is as verboten as express advocacy.  (What about a fundamentalist Christian minister who, believing in apocalyptic Christianity, expresses the view that the election of a particular candidate will "hasten Armageddon"?  Or a Catholic priest committed to social justice who contends that the election of a candidate will cause the "poor to suffer injustice"?)  But it does not appear that the IRS is actually doing much to enforce this, despite the brief attempt to squelch All Saints Episcopal in Pasadena.

   From this horseback, the opinion is that the ADF's claims will fail.  Comments invited.      

Full post as published by The Faculty Lounge on September 27, 2008 (boomark / email).