Conference on Politics, Taxes, and the Pulpit
Sep 28 2011 10:53AM
The University of Kentucky College of Law is Pleased to Announce:
Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts
A Conference on the Recently Published Text from Nina J. Crimm and Laurence H. Winer
10:00 a.m. - Noon, October 12, 2011
University of Kentucky College of Law Courtroom
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About the Conference:
As the nation’s presidential and congressional campaigns heat up and the Kentucky gubernatorial campaign is in full swing, the authors of Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts and invited panelists will engage in a timely and thought-provoking dialogue. The controversy is whether a spiritual leader, acting in his or her official capacity as representative of a house of worship, should be able to support or oppose a political candidate from the pulpit, or in another private or public forum, without loss of the institution’s federal tax-exempt status and many accompanying tax benefits.
Such religious voices in the political arena are applauded by some people but are deeply troublesome to others. At issue are the federal tax subsidies benefiting houses of worship that are available only if they completely refrain from explicit or implicit partisan, political speech, a condition in tension with all protections of the First Amendment – freedom of speech and press, the free exercise of religion, and the avoidance of government establishment of religion.
Presentation by the Authors with Comments by:
- David A. Brennen - Dean and Laramie L. Leatherman Professor of Law, University of Kentucky College of Law
- Joshua A. Douglas -Assistant Professor of Law, University of Kentucky College of Law
- Reverend Nancy Jo Kemper - Interim Associate Dean for Interreligious Life, Transylvania University
- Paul E. Salamanca - Wyatt, Tarrant and Combs Professor of Law, University of Kentucky College of Law
About the Book
Professors Nina J. Crimm and Laurence H. Winer examine the provocative mix of religion, electoral politics, and taxes involved in the controversy over houses of worship engaging in political campaign speech. The authors analyze the dilemmas associated with federal tax subsidies benefiting nonprofit houses of worship conditioned on their refraining from political campaign speech. They explore the multifaceted constitutional tensions arising from this legal structure and implicating 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 They examine 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 but rather on their presumed charitable functions. The authors explain that the federal income tax exemption for houses of worship existed for many years as a subsidy for religion, without restriction on their political campaign speech. But Congress amended the statute in 1954, and now after the 2010 United States Supreme Court decision in Citizens United v. Federal Election Commission, holding unconstitutional federal campaign finance restrictions on corporations’ electoral political speech, the tax law restricting just 501(c)(3) nonprofit entities is singular and anomalous.
Professors Crimm and Winer discuss various considerations and possible 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. They 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 institutions. The Court increasingly relies on such individual choice as critical to its Establishment Clause neutrality analysis of church-state relations to reduce frictions between the Free Exercise Clause and the Establishment Clause. While this underappreciated element becomes key in their design of legislative proposals for reform of the federal tax provisions, the authors first confront directly the dilemma that the ban on political campaign speech creates by inducing houses of worship, through the offer of financial support, to relinquish core constitutional rights and succumb to a quasi prior restraint on their speech.
In doing so, Professors Crimm and Winer focus on the considerable jurisprudence of the doctrine of unconstitutional conditions that many scholars find fundamentally incoherent. They contemplate how a judicial challenge to the ban might proceed under various interrelated approaches, as well as the substantial procedural and substantive impediments to court review. They posit that under widely accepted free speech and free exercise principles (as well as under the Religious Freedom Restoration Act), strict scrutiny review well might be necessary. In discussing the nuanced balancing of the competing interests at stake and drawing upon the campaign finance cases culminating in Citizens United, the authors consider the inadequacy of a house of worship using an alternative means of communication through a separate non–501(c)(3) entity that some commentators present as an answer to the political campaign speech dilemma. In the end, Crimm and Winer suggest that judicial remedy to the constitutionally troubling current system is highly problematic and ultimately would prove unsatisfactory.
This conclusion leaves a great need for statutory reforms. Professors Crimm and Winer acknowledge that there are no means by which Congress can fully resolve the irreconcilable clashes in a constitutionally permissible and politically and socially palatable manner. Nonetheless, they offer several feasible legislative proposals for reform of the relevant tax provisions that should generate considerable discussion. Their 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.
About the Authors
Nina J. Crimm is the James and Mary Lassiter Distinguished Visiting Professor at the University of Kentucky College of Law. She is a Professor of Law at St. John's University School of Law in New York. During summer 2011, she was the “Chercheur Invité ” (Invited Scholar) at the Institut des Mondes Anglophone, Germanique, and Roman, a Université Paris-Est research institute exploring relationships of religion, politics, national discourse, and culture in the English speaking world. In spring 2011, she was Professor in Residence at The Urban Institute, Center on Nonprofits and Philanthropy, a Washington, D.C. think tank.
Professor Crimm clerked for Judge Irene F. Scott, U.S. Tax Court, and later became Attorney-Advisor/Senior Attorney in the Office of the Chief Judge of the U.S. Tax Court. She practiced tax and nonprofit law with a Washington, D.C. law firm before entering academia. She was recipient of a research grant from the American Tax Policy Institute and an ATAX Research Fellow at the University of New South Wales in Sydney, Australia.
Professor Crimm has published numerous law review articles involving taxation and First Amendment issues related to nonprofit organizations and philanthropy. She is the author of Tax Issues of Religious Organizations, published first in 2002 and as a new edition in 2009 by the Bureau of National Affairs as Tax Management Portfolio No. 484. Professor Crimm writes The Quarterly Commentator, a quarterly column on various policy and legal matters affecting nonprofit organizations for The Exempt Organization Tax Review.
Laurence H. Winer is Professor of Law and Faculty Fellow, Center for Law, Science, & Innovation at the Sandra Day O'Connor College of Law at Arizona State University. His main scholarly interests are in constitutional law, particularly the First Amendment. After graduating from Yale Law School, Professor Winer practiced with a Boston law firm before joining A.S.U. Prior to law school, he taught mathematics at Boston University where he earned his Ph.D. degree in 1973. For the past three years, Professor Winer was the Faculty Editor of Jurimetrics: The Journal of Law, Science, and Technology, a peer-reviewed journal published by the College of Law and the American Bar Association's Section of Science & Technology Law. He also is a member of the First Amendment Advisory Council of The Media Institute in Washington, D.C., an independent, 501(c)(3) nonprofit research organization specializing in issues of media and communications policy.