In their new book, Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts (Oxford University Press, 2011), law professors Nina J. Crimm and Laurence H. Winer examine the provocative mix of religion, politics, and taxes involved in the controversy over houses of worship engaging in electoral political speech. They offer several imaginative legislative proposals for reforming the relevant, speech-restrictive tax provisions that could help direct and mitigate the growing conflict.

 

The debate: Should a religious leader, acting in his or her official capacity as representative of a house of worship, be able to support or oppose a political candidate from the pulpit, or in another private or public forum, without stripping the house of worship of its tax-exempt status and many accompanying tax benefits?

 

Currently, revenues of houses of worship, 501(c)(3) organizations, generally are not taxed, and their donors can qualify to deduct contributions from their income taxes. In return, however, federal tax law prohibits these entities from engaging in political campaign speech. Nonetheless, the law is regularly violated and the government is loathe to prosecute.

 

Nina Crimm

 

While viewing the taped interview, Winer, who specializes in constitutional law, recalls commenting, as if to Haggard personally: “If you want the government out of your business, don’t take the tax breaks.” But then Crimm and Winer started talking about analogous situations in which the government conditions various benefits or subsidies on relinquishment of certain rights. Crimm long had been researching tax issues impacting religious and other nonprofit organizations, as well as related First Amendment religion clause issues. She and Winer started looking broadly at the issues raised during the interview. They viewed the problem anew through the lens of all First Amendment protections. As Winer recalls, “We began to think the government is wrong here. Not only is the free exercise of religion constitutionally protected, but political speech is the most protected form of freedom of expression. Why should the tax law be able to override these?”

 

They began to study the issues in depth, Crimm from the areas of nonprofit, tax law, and First Amendment religion clauses, and Winer from the perspective of the interplay between the religion clauses and the First Amendment freedoms of speech, press and association. 

 

“The more we each got into it, the more we convinced ourselves and each other that there are significant constitutional issues here,” Winer said. “The topic turned out to be an academic’s dream. Not only does it require expertise in several disparate areas of law, it involves every aspect of the First Amendment: freedom of speech and press, the free exercise of religion, no government establishment of religion, and freedom of association. Very few issues involve every aspect of the First Amendment in so central a way.”

 

The authors contend that many people take a visceral stand without knowing the history behind the tax exemption for houses of worship and that some religions have doctrines and tenets that require their clergy to educate congregants about moral issues, even when they collide with politics.

 

“It didn’t surprise me that this issue is so polarizing,” Crimm said. “Religion is a very personal thing to people. So many people feel that taxpayers should not be required to subsidize any partisan political activity, but especially that by religious institutions. Perhaps what shocked me is the level of self-interest of politicians who, in essence, unreflectively placed speech restrictions into the tax code, and with ambiguities that, because of the intense feelings about the separation of church and state, are driving the way that the IRS approaches this issue.”

 

Religion and politics have always been entwined in the United States, with even James Madison, architect of the First Amendment, endorsed by religious figures in his campaign for the first House of Representatives. But in 1954, Lyndon Baines Johnson, when running for re-election to the U.S. Senate, apparently was frustrated by nonprofit groups purportedly supporting his opponent. Without holding legislative hearings, Johnson pushed through an amendment to the statute granting tax-exempt status that ever since has prohibited political campaign speech by all religious and secular 501(c)(3) organizations.

 

“Johnson probably was looking toward a future presidential campaign,” Crimm said. “His amendment apparently had no connection in his mind with free speech or the religion clauses; there is no indication that he thought about constitutional issues. Because Congress may have quickly latched onto this statutory structure, it’s not clear its members even contemplated that the political campaign speech prohibition would apply to houses of worship.”

 

The issue has intensified as megachurches and televangelists are appearing more prominently on television and in other mass media. And after the U.S. Supreme Court last year invalidated federal campaign finance restrictions on corporations’ political campaign speech in the Citizens United v. F.E.C. decision, the issue of restricting such speech by nonprofit entities becomes all the more singular and problematic, particularly for houses of worship.

 

Crimm and Winer note that the issue has not yet been resolved through the judicial process because a house of worship seeking to challenge the ban first must exhaust IRS administrative remedies. But because the IRS has not denied or revoked the tax-exempt status of any house of worship based on a violation of the statutory prohibition, none has been able to pursue administrative remedies required to proceed to court.

 

“They’re being squelched by non-action,” Crimm said. “The IRS doesn’t want to litigate the issues.”

 

In fact, Crimm and Winer argue that litigating the issues, which some people want to do, could leave everyone unhappy. Many embrace separation of church and state as a sacrosanct constitutional principle, but here this approach can cut either way.

 

“The best solution would come from Congress,” the authors agree. “While there are no means of fully resolving the irreconcilable clashes in a constitutionally permissible and politically and socially palatable manner,” Crimm and Winer conclude that “our proposals to amend the tax code 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.”