Nonprofit Law Prof Blog

Arizona Taking Steps to Exempt "Fallow" Church Property

A couple of years ago one of my students, Brittany Viola (not the Olympic platform diver) wrote a note for the University of Illinois Law Review on the property tax status of "fallow" property owned by exempt organizations, particularly churches.  A PDF of that article is available here.  In the article, Ms. Viola discussed how various states, particularly in the Northeast, were attempting to tax "fallow" property - for example, shuttered Catholic schools or churches that had been closed by the local diocese (though this issue was by no means limited to property owned by the Catholic church).  The essence of the legal issue was the requirement of most state property tax exemption laws that the exempt property be "used" for an exempt purpose; arguably, fallow church property is not being "used" for religious purposes; it literally isn't being "used" at all, and hence potentially does not meet the requirements for exemption.

It appears that Arizona is in the midst of considering legislation that would protect this fallow property from taxation.  This article in the East Valley Tribune details legislation that was first proposed in the Arizona House that would permit religious organizations to buy undeveloped property and hold it subject to exemption (this original version of the legislation also apparently would have exempted other property owned by churches, but used for non-religious purposes, like student dormitories).  Word today is that a compromise version of this bill passed the Arizona House, and although it no longer protects things like student dormitories, it does apparently still provide for exemption of fallow land (I haven't been able to find a full-text version of the amended bill; I'll try to link it when I do).

I've written before about my view that churches ought not to be given the tax benefits accorded "charities." While some clearly do produce "public goods" in the form of helping the poor and disadvantaged, many are nothing more than clubs for believers.  The modern case for general tax exemptions for churches usually rests on the notion that taxing them would be unconstitutional (a violation of the federal free-exercise clause, or similar provisions in state constitutions).  I don't agree - and think that a neutral tax law applied to religious organizations would be upheld.  (The historical rationale for religious exemptions comes from the proposition that human beings could not (or should not) tax God; there are references in ancient Egyptian history and the Old Testament regarding the proposition that human beings did not have the authority to tax priests or temples.  I think we're sort of past the "if we tax churches, plagues of locusts will destroy the fields" theory.)  Social clubs do get federal income tax exemption under Section 501(c)(7), but clubs do not get the other major benefits of charitable tax exemption under 501(c)(3) (e.g., the ability to receive tax-deductible donations or to issue tax-exempt bonds), and states generally do not provide property tax exemptions for clubs.  So let's give churches the same tax benefits we give all social clubs and nothing more.

A colleague at another institution once floated the idea that churches ought to be taxed, but get an unlimited charitable deduction for actual charitable works, like expenditures for programs to help the poor.  That also sounds fine to me.  But the idea that we should be expanding exemption for churches to property that isn't even used for religious worship, particularly given the strains on local budgets, is in my view ludicrous.

JDC 

Religious Leaders v. Senator Grassley

The tireless nonprofit watchdog, Senator Grassley from Iowa, has turned his attention in recent years to what he perceives as irresponsible financial activity carried on by certain religious figures and organizations, television evangelists in particular.  After some back and forth, religious leaders agreed to established a commission, the Evangelical Council for Financial Accountability, to examine Sen. Grassley's concerns and to comment on some of his proposed solutions.  The Council recently released its findings in a 94-page report soothingly titled "Enhancing Accountability For the Religious and Broader Nonprofit Sector."  With that title, who could object?

It appears that Senator Grassley objects, primarily because the bottom line of the report is that nothing should change.  In the Senator's words, "[t]he report gives less attention to resolving some of the thornier questions, such as how to build accountability from entities that exploit vagueness in current laws and regulations for individual benefit rather than the greater good."  He added, ominously, that if Congress follows through with plans to overhaul the tax code, many of the issues that he has raised "will be ripe for review."

A story in The Chronicle of Philanthropy summarizes events and provides links to the report and Sen. Grassley's statement about it.

TAK

Why No Church Tax Inquiries? And Why No Politically Active Church Exemption Application?

With today's election, the perennial issue of church political involvement has once again gained prominence.  What is new is the since-repudiated statement of an IRS official confirming what many have long suspected - that the still pending regulations on who exactly within the IRS can sign off on a church tax inquiry have left such inquiries in limbo.  As reported by the AP and republished at the Huffington Post, and also previously reported by Christianity Today, a manager in the IRS Mid-Atlantic region said such inquiries had been suspended pending these regulations, but an IRS spokesman quickly said the manager "misspoke", although the spokesman refused to provide any more details about the status of such inquiries.  Both an academic and a practitioner quoted in the AP story said they were not aware of any church tax inquiries over the past three years.  This is apparently the case even with the increasingly popularity of Pulpit Freedom Sunday, as the press has noticed (see, for example, coverage by NBC News and The Nonprofit Quarterly).

There is also an interesting lack of activity on the side of those seeking to challenging the limits on church political activity, not with respect to such activity itself but instead with respect to forcing the IRS into court.  While a church that allegedly violates the prohibition on political campaign intervention cannot force the IRS to launch a church tax inquiry, such a church that has not yet applied for tax-exempt status could file such an application, fully disclose its actual or planned political activity, and then wait to see what the IRS does.  If the IRS grants the application that would give a green light for such activity.  If the IRS denies the application or refuses to rule on it for 270 days, the church could file a declaratory judgment action seeking a declaration that it qualifies for exemption, thereby forcing the IRS to litigate the validity of the prohibition assuming the church otherwise qualifies for exemption under Internal Revenue Code section 501(c)(3).  It is not clear why the the Alliance Defending Freedom (previously named the Alliance Defense Fund), which has brought us Pulpit Freedom Sunday, or other groups that assert they are seeking to challenging the prohibition have not pursued this route in order to bring this issue to a head.

LHM

Another Day, Another Church Violates Political Activity Rules

On Sunday, September 2, the Church of St. Catherine of Siena, in NYC, published and circulated to parishioners a church bulletin containing a column by the Rev. John Farren, a member of the congregation’s pastoral staff.  The column, which is ostensibly about religious freedom, reproduced in full a letter from several former U.S. ambassadors to the Vatican criticizing the Obama administration and concluding, “We urge our fellow Catholics, and indeed all people of good will, to join with us in this full-hearted effort to elect Governor Mitt Romney as the next President of the United States.” (Note that this is a quote from the ambassadors' letter, reproduced in full in Fr. Farren's column, not a quote from Fr. Farren himself).  The reproduced letter, in fact, mentions Romney specifically a half-dozen times, and in each paragraph other than the very first.

Father Farren perhaps thought he had protected himself from violating the political campaign prohibition rules by framing his column as one about religious freedom, and including the following sentence: "I am aware that I and no church authority may endorse candidates for political office, but because that letter focuses on the centrality of religious freedom, I believe it is worth reproducing here." Or perhaps he thought that reproducing someone else's endorsement of Romney in an official church publication was OK as long as the endorsement words didn't come out of his mouth.  Either way, he was dead wrong.

Aside from the fact that Father Farren's statement is pretty transparently a ploy to signal his approval of Governor Romney (he could easily have made his arguments regarding religious freedom without reproducing a letter that is essentially a campaign ad for Romney), the statement in the church bulletin quite clearly violates the rules the IRS laid out in Rev. Rul. 2007-41.  I cited these rules in my previous post about Bishop Jenky of Peoria, but here they are again.  In assessing whether a communication that is ostensibly about an "issue" rather than a political endorsement, the IRS considers the following factors: 

1. Whether the statement identifies one or more candidates for a given public office;                

2. Whether the statement expresses approval or disapproval for one or more candidates’ positions and/or actions;                    

3. Whether the statement is delivered close in time to the election;

4. Whether the statement makes reference to voting or an election;

5. Whether the issue addressed in the communication has been raised as an issue distinguishing candidates for a given office;                    

6. Whether the communication is part of an ongoing series of communications by the organization on the same issue that are made independent of the timing of any election; and                    

7. Whether the timing of the communication and identification of the candidate are related to a non-electoral event such as a scheduled vote on specific legislation by an officeholder who also happens to be a candidate for public office.

My analysis is that Fr. Farren's column in the church bulletin managed to violate all seven of these criteria; a perfect (negative) score.  To analogize to speeding, this isn't going 75 mph in a 65 zone; this is going 120.  The fact that the rules were (mostly) broken in the context of reproducing a letter from outsiders is irrelevant; this is similar to a web link that would take you to a web page with the original endorsement.   The Revenue Ruling is quite clear that one is responsible for the content behind such links in this context - in other words, you can't escape the rules by re-publishing someone else's endorsement.  Link to it, or re-publish it approvingly, and it becomes your own.

As I indicated in my prior post about Bishop Jenky, it's high time the IRS made a stand on the political activity rules.  Either enforce your ruling, or withdraw it and give up.  

JDC

 

Columbia Law School Charities Project Releases Two New Webinars for Public Viewing

The Columbia Law School Charities Project has released two new webinars for public viewing: “The IRS and Charities Regulation: A Primer,” and “Social Enterprise and Hybrid Corporate Forms: Emerging State Regulatory Perspectives and Responses.”  According to the Charities Project, the webinars are designed to help inform the nonprofit sector, regulators, practitioners and academics about topical issues at the intersection of state regulation and the charitable sector.

VEJ 
 

Churches Gearing Up For Election Season - Fortnight for Freedom and Pulpit Freedom Sunday

As reported in the Chicago Tribune, a recent Reuters article discusses the ongoing work of the Alliance Defense Fund, the creator of Pulpit Freedom Sunday.  As previously blogged, this event's purpose is to "have the Johnson Amendment [adding the political activity prohibition to section 501(c)(3)] declared unconstitutional – and once and for all remove the ability of the IRS to censor what a pastor says from the pulpit."  In 2011, approximately 540 pastors in churches around the country "preached sermons that compared the positions held by candidates with what Scripture says about those issues. The pastors then made specific recommendations about those candidates (including recommendations about whether the congregation should vote for or against them)."  The goal of the movement is to force a court case on the issue, with hopes that it will result in their favor - striking the prohibition from 501(c)(3).  The article discusses the continuing recruitment of new pastors to join the movement, forcing the IRS to act and begin the ultimate court fight.

In a similar, but unrelated event, The U.S. Conference of Catholic Bishops have called for their own Fortnight for Freedom beginning this week (from June 21 to July 4), which encompasses holding masses and rallies, and using parish bulletins to voice opposition to the Obama administration's healthcare regulations on contraceptives.  The Conference's website describes this event as a "special period of prayer, study, catechesis, and public action [that] will emphasize both our Christian and American heritage of liberty. Dioceses and parishes around the country have scheduled special events that support a great national campaign of teaching and witness for religious liberty."

The article concludes with some interesting data from recent Pew Research Center studies on this issue.  In a January 2012 poll, only 18% of the participants responded that a candidate endorsement by their minister, priest or rabbi would impact their voting decision; 70% polled that it would have no impact. 
In a second study conducted this spring, Pew discovered that most parishioners prefer that their religious leaders stay out of the political realm, with Catholic participants being the "most adamant."

NAM

NYT's "Room for Debate" - Should Churches Remain Tax-Exempt?

With particular relevance during this election season, the New York Times hosted another online "Room for Debate" entitled, "Should Churches Get Tax Breaks?"  This debate is composed of 5 pieces written by 6 persons (one is co-written) of differing backgrounds and viewpoints.  For those of us in legal academia, this can serve as a great platform for an interesting class discussion on the policy behind the tax exemption.  The five submissions are:

1.    Mark L. Rienzi, "Good for Religion, Good for America"

2.    Dan Barker, "Government Is Endorsing Religion"

3.    Winnie Varghese, "Sustaining Progressive Faith"

4.    Lawrence Sager & Christopher L. Eisgruber, "Don't Play Favorites"

5.    Susan Jacoby, "Equal Protection vs. 'Religious Freedom'"

Hat tip:  Nonprofit Quarterly

NAM

Catholic Hospital Takeovers and the Community Benefit Test

In Denver and Louisville, potential mergers in which a Catholic hospital system would take over a formerly secular hospital have raised issues regarding how takeovers by Catholic health care systems alter services available to women, including abortion, contraception and tubal ligations. Catholic doctrine may also impact patient directives regarding end-of-life care. I have no quarrel with Catholic hospitals operating according to Catholic doctrine. I DO have a quarrel with the Catholic Bishops who on the one hand rail against the war on Catholicism being conducted by the U.S. government (see my earlier post about Bishop Jenky of Peoria) and on the other hand seem perfectly content to accept millions of dollars in government subsidies through property and income tax exemption.

So here's a thought. Since 1969, nonprofit hospitals have claimed exemption under what is now generally referred to as the "community benefit test." In Rev. Rul. 69-545, the IRS held that providing health care services for the general benefit of the community was charitable even if the hospital in question did not provide free care for the poor as long as the hospital provided such care in an emergency setting, had a community board, provided services to all patients who could pay (including via government programs such as Medicare and Medicaid) and did not unduly restrict its medical staff. Most states in administering their property tax exemption laws follow a similar doctrine (a very few, notably Illinois, have held that charity care is an essential element of tax exemption). The result is that even large nonprofit hospital chains, like Ascension Health - a Catholic system that in fiscal 2011 reported "an excess of revenues and gains over expenses and losses of $1.5 billion" (yes, that is "billion," with a "B") - get federal income tax exemption and state property tax exemptions, because they legitimately can claim to be providing health services for the general benefit of the community. At current corporate tax rates, if Ascension really did have profits of $1.5 billion, then its income tax exemption is worth roughly $500 million, give or take.

But when a Catholic hospital takes over a hospital and discontinues services because of Catholic doctrine, I would argue that the result is a net decrease in "community benefit." Services previously available are no longer available; rather than benefitting the community, one might argue that these transactions have harmed it (perhaps not if the target would have gone out of business without the Catholic white knight - more on this below). So I suggest a rule: in the context of an acquisition of a hospital, any discontinuance of services by the target for reasons other than financial necessity or sound medical practice within five years of the acquisition will be a per se violation of the community benefit doctrine, resulting in a withdrawal of tax exemption, unless the target would be exempt under other tests of charity (e.g., a teaching hospital would remain exempt as an educational organization; a hospital or clinic that served primarily the poor would still be exempt as a poor-relief charity).

Now I know there are a slew of problems with my proposal. First, it may be unconstitutional. My own view is that such a rule would not violate the Free Exercise Clause under existing caselaw, but I recognize that there is no Supreme Court precedent "right on point" and what case law there is that is relevant is getting long in the tooth. Maybe if the Supreme Court takes a case involving political campaign activity by a church, we'd get better clarity on this point.

Second, what about the case in which a target literally would go out of business but for a Catholic "white knight"? Would I really prefer no services at all to an elimination of certain services in order to preserve a majority of other services? No, I wouldn't. So perhaps I need an exception for cases that truly present no other option. And then I'd have to define the circumstances in which "no other option" exists.

Third, there are a host of definitional problems with phrases like "financial necessity" and "sound medical practices."

And finally, the real problem here is that most nonprofit hospitals aren't charities, and hence the real solution is to withdraw exemption from nonprofit hospitals completely (again, with the exception that hospitals could meet other tests of exemption - see my post from yesterday).

I get all this. It is likely that my idea may be completely impractical, though I'm going to spend some time thinking about it and maybe even writing a full-fledged article on it. But I am rapidly getting tired of the hypocrisy of the Catholic hierarchy, despite the fact that I am Catholic myself. If you don't want "government intervention," then don't take government handouts, either. If you're going to talk the talk, walk the walk.

JDC

 

A Roman Catholic Writes of Lent in a Time of a Catholic Culture War

I just came across this interesting commentary by Kevin Clarke, an associate editor at America Magazine, a weekly Jesuit publication.  The commentary was posted on the Washington Post's Website this morning.

VEJ

No Supreme Court Consideration of Political Activity Ban

Earlier this week the Supreme Court of the United States denied the petition for a writ of certiorari filed by Catholic Answers (see docket) in its case challenging the Internal Revenue Code section 501(c)(3) prohibition on political campaign intervention.  As previously blogged, the lower courts had dismissed the tax refund case as moot because the IRS had refunded the excise taxes assessed on the alleged political campaign intervention expenses under section 4955.  For reasons I stated last fall, the denial is no surprise. Nevertheless, it shows how difficult it will be for groups challenging the ban to actually have their day in court, at least as long as the IRS either refuses to penalize their actions (remember All Saints Episcopal Church in Pasadena?) or drops any penalty when challenged, as happened here.

LHM

Pulpit Politics and the Ministerial Exception

A little over a week ago Professor Vaughn James blogged in this space about the Supreme Court's recent Hosanna-Tabor Evangelical Lutheran Church and School decision unanimously concluding that religious organizations benefit from a "ministerial exception" to employment discrimination laws.  I want to focus on one possible ramification of this decision that does not appear to have been noted publicly yet - does the reasoning supporting this exception also support a "pulpit exception" to the tax law prohibition on political campaign intervention?   (Shameless self promotion - I explored this possibility in the last part of my 2009 Boston University Law Review article on Politics at the Pulpit.) 

The strongest argument for not having such a "pulpit exception" is that the prohibition is a valid and neutral law of general applicability and so does not violate the Free Exercise Clause under the reasoning of Employment Div v. Smith, 494 U.S. 872 (1990).  But in Hosanna-Tabor the EEOC and the plaintiff were unsuccessful in making this argument with respect to the Americans with Disabilities Act.  Here is the Court's reasoning for rejecting that argument:

It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use [in Smith], is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government’s regulation of“physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”). The contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses has no merit.

If Smith does not bar the ministerial exception because that exception relates to "an internal church decision that affects the faith and mission of the church itself," it certainly seems reasonable to conclude that Smith also does not bar a pulpit exception, at least if a pulpit-delivered endorsement of a candidate is religiously motivated and communicated to the congregation as part of the minister's role in teaching them how to faithfully live out their beliefs.  That this would be the case for many if not most ministers who chose to deliver such a message from the pulpit seems likely, for reasons detailed in my article.  The Supreme Court in Hosanna-Tabor appears to have provided solid grounds for arguing that the Free Exercise Clause requires such a pulpit exception.

LHM

 

Supreme Court Upholds "Ministerial Exception"

Yesterday, the Supreme Court decided Hosanna-Tabor Lutheran Church and School v. Equal Employment Opportunity Commission.  The Court affirmed that religious organizations benefit from a “ministerial exception” to employment discrimination laws.

Commenting on the decision, the NonProfit Times explained that

The unanimous ruling culminated a case in which a woman sued Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Mich. The woman, Cheryl Perich, said she was fired for pursuing an employment-discrimination claim, based on her having narcolepsy. Hosanna-Tabor didn’t deny the facts, but responded that it fired Perich for violating religious doctrine by taking the case to court rather than trying to settle it within the church.

The High Court, in a unanimous decision written by Chief Justice John Roberts, affirmed religious entities’ right to choose who will preach their beliefs, teach their faith and carry out their mission.

 The Reporter, the official newspaper of the Lutheran Church -- Missouri Synod, gave more details:

In the case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, et al.,a former commissioned-minister (teacher) at the now-closed Hosanna-Tabor school sued the school after she was dismissed in 2005 for "insubordination and disruptive conduct in violation of church teaching," according to Hosanna-Tabor's Petition for Certiorari.
 
The fourth-grade teacher, Cheryl Perich, sued the congregation for disability discrimination, claiming the church rescinded her call as a commissioned minister because of her narcolepsy, a sleep disorder that typically causes excessive daytime sleepiness.
 
A federal district court dismissed the case based on the "ministerial exception," a First Amendment doctrine that bars lawsuits that would interfere in the relationship between a religious organization and employees who perform religious functions.
 
But the U.S. Court of Appeals for the Sixth Circuit later reversed the district court and ruled in favor of Perich, holding that the teacher had a predominantly "secular" role because she spent more time each day teaching secular subjects than religious ones.

In his opinion, Chief Justice John G. Roberts said that, in light of the First Amendment's guarantee of the free exercise of religion, "it is impermissible for the government to contradict a church's determination of who can act as its ministers."
 
Justice Roberts continued:

Since the passage of Title VII of the Civil Rights Act of 1964 and other employment discrimination laws, the Courts of Appeals have uniformly recognized the existence of a 'ministerial exception,' grounded in the First Amendment, that precludes the application of such legislation to claims concerning the employment relationship between a religious institution and its ministers. The Court agrees that there is such a ministerial exception.

As a minister of religion, I am delighted with the Court's decision.  In fact, I agree with the writer at the North American Religious Liberty Association who opined that this was "likely the most important religious liberty case to come down in the past two decades." 

VEJ
   

Dispatches From the World of Nonprofit Law Clinics

As I have mentioned before on this blog, I supervise my law school's Community Development Law Clinic, which really should be called a Nonprofit Law Clinic.  As the semester ends, I have been engaging in my usual practice of reviewing our progress, and it occurs to me that, in this season of religious celebration, we have taken on several projects for religious organizations.

One project is for a well established religious organization in North Carolina that is concerned about liabilty and wishes to explore incorporating under state law.  The interesting challenge for the clinic students is that the congregation is strictly committed to non-hierarchical decision making on all aspects of its governance.  The legal question, then, is how to devise a board comprised of any congregant who feels moved to show up to the business meeting and express his/her opinion in any given month, and where corporate actions will only be taken when the congregation arrives at "consensus," which is defined vaguely.  As nonprofit law folks can imagine, this led to a close analysis of the North Carolina General Statutes on nonprofit governance and to some interesting and precise custom language in the organization's bylaws.  Rather than describe the solution we devised, I will leave it up to you imagination. 

(The tax folks in the crowd may be interested to hear that the same congregation was renting parking spaces for weekend football games and was completely unaware that UBIT might apply.  A clinic student, upon discovering this, correctly pointed out that these exact facts are one of the examples in the IRS UBIT regs.)

Another project involves a group of nuns who wish to establish a 501(c)(3) nunnery.  At first blush, the legal issues looked straight-forward, but as we dug in, we realized that we had a potential private inurement/benefit issue.  The problem is that the nunnery would be formed by, and would initially house, a small group of nuns.  To avoid the inurement issue, we advised that they populate the board with people who will not participate in or benefit from the nunnery's programs.  This proved difficult, however, because their religious principles require that organizational decisions be made only by ordained (not sure that's the correct term) nuns, and they are the only ones in the region.  Resolving that problem required significant creative, collaborative work between the students and the nuns.  The private benefit issue was easier, since the client had no problem making its benefits available to an indefinite class.

TAK

Kentucky Church Says "No" to Interracial Couples

The Associated Press is reporting that a small, all-white church in rural Kentucky on Sunday voted to ban interracial couples from joining the congregation.  According to the report, the church approved a resolution that says it does not "condone interracial marriage." The church's former pastor denies that the resolution was racially motivated.  However, the church's secretary disagrees.  He maintains that the resolution came about after his daughter visited the church this summer with her boyfriend from Africa.

I'm wondering whether, in light of Bob Jones University v. United States, 461 U.S. 574, this church should lose its tax-exempt status.

VEJ       

A New Resource for the Church Tax Exemption Debate

In doing some trolling on the web, I came across a fairly new web site that addresses the pros, cons and history of tax exemptions for Churches.   The site is well-done, and with the exception of a few minor nitpicks (the exemption for churches goes back farther in history than Constantine; there are references to exemptions for churches in the Old Testament of the Bible and in ancient Egypt), gives a good overview of the issues involved in this continuing debate (about which I am sure we will hear more during the upcoming election cycle).

Check it out: http://churchesandtaxes.procon.org/

JDC

Oregon SCT to Address Church Property Dispute

The Oregon Supreme Court will review a Court of Appeals decision, Hope Presbyterian Church of Rogue River v. Presbyterian Church (U.S.A.), 255 P3d 645 (2011), that reversed a trial court decision involving real property owned by a church.  The Hope Presbyterian Church of Rogue River owns a church building and holds title to the real property in its name.  The church was affiliated with the United Presbyterian Church of the United States of America (UPCUSA), and in 1983 UPCUSA merged with PCUSA - Presbyterian Church (USA) and as part of the merger, adopted the PCUSA Book of Order.  The Book of Order declares that all property held by an individual church is held in trust for the denomination.

The current case arose because in 2007 Hope decided to disaffiliate  with PCUSA.  A dispute developed around the ownership of the land and Hope brought the suit to quiet title.  The trial court resolved the case using the "neutral secular principles" doctrine, looking at the legal documents and disregarding purely church documents.  The majority of states follow this approach.  The Court of Appeals applied the "hierarchical deference" doctrine, followed by a minority of states, and held in favor of PCUSA.  The Court of Appeals also said that under the neutral principles doctrine PCUSA would prevail.

The Supreme Court will decide which of these two doctrines should apply in Oregon and whether a trust was created over Hope's property.  The Supreme Court will hear the case on March 5, 2012.

Thanks to Samantha Benton for bringing the case to my attention.

sng

 

 

 

CNN: Church Posts Videos of Pastor Endorsing Perry

CNN reports that Pastor Robert Jeffress, of Mormonism is a "cult" fame, may have gotten his church and not just himself into hot water.  That is because he has posted on the First Baptist Church of Dallas website videos of his various media appearance, which videos include clips of his endorsement of Texas Governor Rick Perry for President.  The ever vigilant Americans United for Separation of Church and State has asked the IRS to investigate the church as a result.  According to the CNN article, Americans United is also expecting to file ten times as many complaints as it did in 2008.

LHM

Kentucky "Politics, Taxes, and the Pulpit" Conference

The University of Kentucky College of Law hosted yesterday a conference on the recent book Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts authored by Nina J. Crimm (St. John's) and Laurence H. Winer (Arizona State).  Commentators were Dean David A. Brennen, Joshua A. Douglas (Kentucky), Rev. Nancy Jo Kemper (Transylvania University) and Paul E. Salamanca (Kentucky).  The book is a comprehensive consideration of the constitutional and federal tax issues raised by religious leaders preaching politics from the pulpit and includes thought-provoking proposals for lessening the constitutional tensions in this area.

LHM

Pulpit Freedom Sunday IV

The Alliance Defense Fund recently supported the fourth edition of Pulpit Freedom Sunday, its ongoing effort to challenge the application of the Internal Revenue Code section 501(c)(3) prohibition on political campaign intervention to churches and other houses of worship.  As reported on an ADF supported blog by ADF's President and in various news outlets, including the NY Times, this year's effort involves hundreds of pastors, a significant increase over the 30 or so pastors who participated in the first such event in 2008.  There is still no indication that the IRS has begun church tax inquiries based on the actions in 2008 or later years, so it remains to be seen whether it will pick up the gauntlet thrown by ADF.

LHM

California Governor Signs Law to Protect Circumcision

Today's New York Times reported that California Governor, Jerry Brown, on Sunday signed a bill that prevents local governments from banning the practice of male circumcision.  The measure was drafted in response to efforts in San Francisco and Santa Monica to outlaw circumcision for any males under 18 years old.  Jews and Muslims had argued that the ban would have violated their free expression of religion.

The effort to ban male circumcision in Santa Monica and San Francisco began earlier this year.  Proponents argued that the ban would protect children from an unnecessary medical procedure, something they termed "male genital mutilation."  They wanted ballot initiatives that, if successful, would enable municipalities to criminalize the procedure.  Jewish groups saw the ballot measures as a very real threat, likening them to bans on circumcision that existed in Soviet-era Russia and Eastern Europe and in ancient Roman and Greek times.  Meanwhile, many medical groups take a neutral approach, saying that the practice is not harmful and that not enough scientific evidence exists to conclude that it is necessary.  Accordingly, they maintain, the decision should be left with the child's parents and their doctor.    

I agree.  Whatever their reasons for wanting their sons circumcised, parents should be allowed to decide without governmental interference.  I wonder, however, whether Governor Brown, by signing the bill into law, has involved the government in a religious debate.  I have not yet made up my mind...

VEJ