Thursday, October 14, 2021
An article in today's Religion News Service reports that the most recent round of the Faith Communities Today survey (FACT), found a median decline in worship attendance of 7% between 2015 and 2020. What is also quite interesting is that the survey period ended before the onset of the COVID-19 pandemic.
The new survey of 15,278 religious congregations across the United States confirms trends sociologists have documented for several decades: Congregational life across the country is shrinking.
According to RNS,
The survey, fielded just before the coronavirus lockdown, finds that half of the country’s estimated 350,000 religious congregations had 65 or fewer people in attendance on any given weekend. That’s a drop of more than half from a median attendance level of 137 people in 2000, the first year the FACT survey gathered data.
Scott Thurman, director of the Hartford Institute for Religion Research and the survey’s author, had this to say: “The dramatically increasing number of congregations below 65 attendees with a continued rate of decline should be cause for concern among religious communities.”
Produced by the Hartford Institute for Religion Research, the FACT survey consists of self-reported questionnaires sent out to congregational leaders every five years since 2000 — mostly through 20 collaborating denominations and faith traditions. According to RNS, the most recent survey found that mainline Protestants suffered the greatest decline over the past five years (12.5%), with a median of 50 people attending worship in 2020. Evangelical congregations declined at a slower rate (5.4%) over the same five-year period and had a median attendance of 65 people at worship. Catholic and Orthodox Christian churches declined by 9%. The only groups to boost attendance over the past five years were non-Christian congregations: Muslim, Baha’i and Jewish.
The survey found that half of the nation’s congregations were in the South, even though only 38% of the U.S. population lives there. It also suggested that small congregations in rural areas and small towns may be unsustainable. Nearly half of the country’s congregations are in rural areas (25%) or small towns (22%), while the 2020 census found that only 6% of Americans live in rural areas and 8% in small towns.
One bright spot in the study is this: Congregations are becoming more racially diverse. In 2000 only 12% of congregations were multiracial. In the latest survey, the figure climbed to 25%.
The survey defined multiracial congregations as those where 20% or more of participants are not part of the dominant racial group.
Many researchers are now investigating if racial diversity also equals integration in relationships — or if people are simply attending church together. Previous research has also found increased diversity is one-directional.
“It’s still in the direction of predominantly white churches becoming less predominantly white, said Chaves. “It’s very little in the other direction. There’s not a big increase in diversity in predominantly Black churches.”
Professor Vaughn E. James, Texas Tech University School of Law
Thursday, September 9, 2021
Writing for today's edition of Religion News Service (RNS) news, Kathryn Post states that the Supreme Court’s August 26 decision to end the federal eviction moratorium brings new challenges for religious leaders and organizations working to aid those at risk for homelessness. Post cites to recent data from the U.S. Census Bureau indicating that more than 3.6 million Americans say they could face eviction in the next two months.
This startling statistic has brought the following response from Sarah Abramson, vice president of strategy and impact at Combined Jewish Philanthropies in Boston: "We’re very, very nervous. There is already a tremendous housing shortage in Boston. And we know from our data, and from the experience of our partners who do this work, just how difficult it was for somebody who has been evicted in the past to get housing.”
Jerrel T. Gilliam, executive director of Light of Life Rescue Mission in Pittsburgh, also shared concerns: “We are going to need to be very creative, and to think outside the box in order to prepare for what could be a potential onslaught of people needing assistance in a short amount of time.”
In its August 26 decision, the Court ruled that the Centers for Disease Control and Prevention lacked the authority to establish a federal eviction moratorium. According to the Court, such a moratorium requires congressional approval. The decision comes as renters and landlords face a backlog of promised funds. According to Census Bureau data, the government has thus far distributed only about $5.1 billion of the $46.5 billion in federal rental assistance funds intended to prevent eviction.
“We definitely have to work hard to make sure that money reaches people,” said Shams DaBaron, a New York activist who also goes by “Da Homeless Hero.” “We have to cover both sides: these small landlords that need it, and those who are extremely poor.”
DaBaron is currently living in an apartment with the support of a voucher program, but he says the city is behind on three months of rent. An eviction moratorium is one measure that can help buy more time while such funds face bureaucratic delays.
DaBaron gained national attention as unofficial spokesperson for the residents of the Lucerne, a hotel-turned-shelter during the pandemic in Manhattan’s Upper West Side that became the center of New York’s “homeless hotel” debate. When he was not advocating for his fellow residents, DaBaron partnered with local group Open Hearts to develop a program called Soulful Walk and Talks. The program provided hotel shelter residents the opportunity to walk to the nearby Riverside Park with local faith leaders from a range of religious traditions who provided a safe space for spiritual reflection.
“We didn’t want to make it a religious thing, but we understand the value of spirit, of soul, of that deep essence within everybody,” said DaBaron. “One of the things that came out of it, from talking to many of the faith leaders, is that many of them were transformed, just as many of us were transformed.”
“It was definitely very impactful,” said Rabbi Lauren Herrmann of the Society for the Advancement of Judaism, who joined in the Walk and Talks and organized other clergy participants. “For one thing, I really understood for the first time in my life the issues surrounding the shelter system, and why people choose to be on the streets instead of being in shelters. … The shelter system is deeply broken, and some of the stories I heard were deeply upsetting.”
Herrmann and DaBaron see the Soulful Walk and Talks as tending to the essential spiritual needs of those facing homelessness. They hope to continue and expand the program as the federal eviction moratorium lifts. Yet, DaBaron and Herrmann also pointed to structural changes that need to take place. New York state implemented a new eviction moratorium on Sept. 1 that extends until January 2022. However, the moratorium does not address the city’s lack of affordable housing, the income cliffs that foster dependence on government programs and the health and safety risks facing those in congregate shelters, where many former Lucerne residents are finding themselves since the hotel shelter closed this summer.
In Pittsburgh, Light of Life Rescue Mission takes a multifaceted approach to homelessness by providing a range of services including case management, education, unemployment services and accommodations for those facing housing insecurity.
Gilliam, the Christian organization’s executive director, is concerned the end of the eviction moratorium will mean a sudden, sharp increase in the number of residents facing evictions. At one point during the pandemic, evictions in Pittsburgh slowed to a complete halt — in a typical year, according to Gilliam, Pittsburgh sees 14,000 evictions.
Gilliam suggested implementing preventive measures that would allow landlords to receive rent payments while enabling those at risk for evictions to find suitable housing.
“We’re pleading with everyone,” said Gilliam. “Let’s try to get people help while they’re still in the home and help the landlord have another month or two of rent, so that we can find a place for them without them having to pass through homelessness to get assistance.”
The pandemic has not been as kind to all religious organizations working to serve those facing housing insecurity. Chaplain Asma Inge-Hanif, founder and executive director of Muslimat Al Nisaa, has been serving the Baltimore community for 30 years. The organization provides health, education and social services to all, regardless of their ability to pay, and its Home Shelter is especially designed to meet the needs of Muslim women. She says her organization has served thousands of people over the years.
In the last year and a half, Inge-Hanif almost died from COVID-19 and lost her organization’s signature location. “I couldn’t pay the rent anymore, even though they claim there was an eviction moratorium,” she said. Now, Inge-Hanif is working to keep the shelter open on a small scale so she can help meet housing needs, especially those of people arriving from Afghanistan.
“I’m getting so many requests all the time from people who are getting evicted,” she said. “It’s often people who have no status and people of color. Everyday I get seven to 10 requests for shelter and housing. And I can’t help them.”
As the federal eviction moratorium ends, Inge-Hanif is hoping to raise money for an apartment building so she can house more people. She also says governments need to make rental assistance and other services more accessible.
“That’s why people are being evicted. They can’t get through the paperwork,” said Inge-Hanif. “The people who need the help are not in a position to maneuver through all the red tape. … The way the system is set up prevents the people who are most in need from actualizing success and being self-sufficient.”
That, indeed, appears to be the sad truth.
Prof. Vaughn E. James, Texas Tech University School of Law
Friday, July 30, 2021
White House Announces New Religions Affairs Leaders, Including First Islamic Religious Freedom Ambassador
The White House announced Friday (July 30) a slate of nominations and appointments for top religious affairs roles, including the first Muslim American nominated to be the U.S. Ambassador-at-Large for International Religious Freedom.
According to a report by the Religious News Service (RNS), President Biden will select Rashad Hussain as his nominee for that post, filling a State Department slot vacant since former Kansas governor and U.S. Senator Sam Brownback left at the close of the Trump administration. Hussain, who would need to be confirmed by the Senate, currently works as director for Partnerships and Global Engagement at the National Security Council.
Mr. Hussain previously served as White House counsel under President Barack Obama, as well as U.S. special envoy to the Organization of Islamic Cooperation and U.S. special envoy for the Center for Strategic Counterterrorism Communications, among other roles.
Commenting on the upcoming nomination, Saeed Khan, an expert on American Muslim communities at Wayne State University, stated: “Rashad’s appointment demonstrates not only the importance the Biden administration places on religious freedom, it also shows the importance of the Muslim world to the administration both in terms of combatting Islamophobia and also promoting religious freedom in Muslim majority countries. Rashad’s background will allow him to have a frank discussion with Muslim majority countries about religious freedom.”
Anila Ali, a co-founder of the American Muslims and Multifaith Women’s Empowerment Council Iftar who has worked with Hussain in the past, also celebrated his nomination. “As AMMWEC, and as a woman leader, I look forward to working with him because women play an important role in peace-making,” Ali said. “He has worked with Muslim communities during the Obama period and we hope his relevant experience is going to make him a voice for all of us.”
According to the RNS report, President Biden is also expected to nominate Deborah Lipstadt as the next U.S. special envoy to monitor and combat antisemitism. Lipstadt is a professor at Emory University in Atlanta and a prominent Holocaust historian. She is the author of Antisemitism: Here and Now and is known for successfully defeating a libel suit brought against her by Holocaust denier David Irving.
Commenting on the expected nomination of Prof. Lipstadt, Mark (Moishe) Bane, president of the Orthodox Union, had this to say: “She is a leader with great moral courage; her dedicated work, clear voice in fighting Holocaust denial and preserving the memory of the attempted destruction of the Jewish people make her an exemplary choice for this role.”
In addition, President Biden plans to appoint two new commissioners to the United States Commission on International Religious Freedom: Khizr Khan and Rabbi Sharon Kleinbaum.
Khan became famous in 2016 when he and his wife, Ghazala, spoke during the Democratic National Convention as “Gold Star” parents, discussing their son, Humayun, a U.S. Army captain who died in Iraq in 2004. Mr. Khan, the founder of the Constitution Literacy and National Unity Project, runs his own law practice and has authored three books, including This is Our Constitution: Discover America with a Gold Star Father.
Kleinbaum, for her part, already served as a USCIRF commissioner in 2020 and leads the Congregation Beit Simchat Torah in New York City, a community that centers LGBTQ people. A human rights advocate, she also sits on Mayor de Blasio’s Faith Based Advisory Council and serves on New York City’s Commission on Human Rights. In addition, she is a board member of the New York Jewish Agenda and the New Israel Fund.
Prof. Vaughn E. James, Texas Tech University School of Law
Tuesday, April 20, 2021
The faculty of Seattle Pacific University, a Christian school associated with the Free Methodist Church, has taken a vote of no confidence in its board of trustees after members of the board declined to change its policy prohibiting the hiring of LGBTQ people.
The no-confidence vote, approved by 72% of the faculty Monday (April 20), was the latest in a series of escalating clashes between faculty, students and the school’s governing board. Faculty and students also want the school to drop its statement on human sexuality, which declares marriage between a man and a woman as the only permitted expression of human sexuality. A total of 213 out of 236 qualified faculty voted no confidence on an online form.
The board of trustees responded to the no-confidence vote Tuesday with a statement saying it would not change its employment hiring policy, which excludes LGBTQ people from full-time positions.
The statement read in part:
The board recognizes that fellow Christians and other community members disagree in good faith on issues relating to human sexuality, and that these convictions are deeply and sincerely held,” read the statement. “We pray that as we live within the tension of this issue, we can be in dialogue with the SPU community.
The board also indicated it was taking its stand because it wanted to continue to maintain its ties to the Free Methodist Church, a small denomination of about 70,000 in the United States and 1 million around the world. The Free Methodist Church has eight affiliated educational institutions including Azusa Pacific, Spring Arbor and Greenville universities.
Kevin Neuhouser, a professor of sociology at Seattle Pacific who is also the faculty advisor for HAVEN, the student club for LGBTQ students on campus, opined that “Right now the board is the last remaining group that has not yet come to recognize that LGBTQ individuals can be faithful Christians, and as faculty and staff they would play positive roles on our campus, if we can hire them.” According to Neuhousser, the school was engaged in a larger discussion of trying to discern what it means to follow Jesus. But, he asked, “Is it being faithful to include or exclude?”
Nationwide, a group of students and former students of Christian institutions are seeking an answer to that question. Last month, 33 LGBTQ students or former students at federally funded Christian colleges and universities filed a class-action lawsuit against the U.S. Department of Education alleging widespread discrimination at 25 Christian colleges and universities.
We shall follow closely as this case winds its way through the court system.
Vaughn E. James, Professor of Law, Texas Tech University School of Law
Thursday, January 21, 2021
The Washington Post reports that Joseph Biden, the second-ever Roman Catholic U.S. president, was greeted on his Inauguration Day with contrasting messages from his church: A warm blessing from Pope Francis — and a statement by the president of the U.S. Conference of Catholic Bishops saying that Biden “will advance moral evils,” including contraception, abortion and same-sex marriage.
The statement by Los Angeles Archbishop José Gomez immediately set off a debate among U.S. bishops, who, like U.S. Catholics, are bitterly divided on the direction of their extensive denomination and its entanglement with partisan politics. Those divisions are coming to a head in the figure of Biden, who makes it clear with his weekly churchgoing, his frequent references to Catholic teachings and culture, and his use of Catholic symbols that he is indeed a part of the church.
The current dispute over how to contend with the new president features dueling comments from leading bishops.
On one hand, Archbishop Gomez stated:
In a time of growing and aggressive secularism in American culture, when religious believers face many challenges, it will be refreshing to engage with a President who clearly understands, in a deep and personal way, the importance of religious faith and institutions. I must point out that our new President has pledged to pursue certain policies that would advance moral evils and threaten human life and dignity, most seriously in the areas of abortion, contraception, marriage, and gender. Of deep concern is the liberty of the Church and the freedom of believers to live according to their consciences.
Cardinal Blase J. Cupich, rejects this thinking:
Today, the United States Conference of Catholic Bishops issued an ill-considered statement on the day of President Biden’s inauguration. Aside from the fact that there is seemingly no precedent for doing so, the statement, critical of President Biden came as a surprise to many bishops, who received it just hours before it was released. The internal institutional failures involved must be addressed, and I look forward to contributing to all efforts to that end, so that, inspired by the Gospel, we can build up the unity of the Church, and together take up the work of healing our nation in this moment of crisis.
The Catholic Bishops have in the past taken a more positive and collaborative tone towards new presidents. For example, in 2016, the conference put out a statement congratulating Donald Trump, saying it “looks forward to working with President-elect Trump to protect human life from its most vulnerable beginning to its natural end.”
San Diego Bishop Robert W. McElroy said he was “echoing Pope Francis’ message to President Biden and calling for dialogue, not judgment; collaboration, not isolation; truth in charity, not harshness. … It is a pathway of reconciliation that places the healing of our society ahead of any specific policy issue, in the recognition that repairing the soul of our country is the pre-requisite for any sustainable effort to advance the common good. … Most importantly of all, Pope Francis’ message to President Biden fundamentally speaks to him in his humanity, a man of Catholic faith striving to serve his nation and his God.”
On Wednesday morning, President Biden received a message from the Pope: “Under your leadership, may the American people continue to draw strength from the lofty political, ethical and religious values that have inspired the nation since its founding,” said Francis, who had called Biden on Nov. 12 to offer his congratulations and to discuss working together on issues including poverty, climate change and integrating immigrants and refugees.
Thursday morning, the USCCB put out four statements — an unusually busy morning for the Conference — praising actions Biden took the day before, including lifting the Muslim ban, and fortifying the “Dreamers” program that allows young immigrants to stay in the U.S. for work and school.
Prof. Vaughn E. James, Texas Tech University
Tuesday, November 17, 2020
Election 2020: Pre-Election Walking Up To (and Over?) the 501(c)(3) Political Campaign Intervention Line
As happens every election season, in the run-up to the 2020 election there were a flurry of news stories about Internal Revenue Code section 501(c)(3) charities pushing up against, and maybe pushing through, the political campaign intervention prohibition. With over 65 years of guidance from the IRS, as meticulously compiled by Steven H. Sholk of Gibbons P.C., you would think just about every possible situation has been addressed, yet charities and candidates continue to come up with new ways of walking right up to, and maybe crossing, that line.
For example, in mid-October the Washington Post reported on a closed-door session of conservative activists, including leaders of a number of 501(c)(3)s, discussing electoral tactics from challenging mail-in ballots to ballot harvesting. The story quoted nonprofit experts Roger Colinvaux and Marcus Owens as being concerned that the involvement of 501(c)(3) leaders raised questions about their organizations' compliance with the political campaign intervention prohibition. In response, some of those leaders stated they were not there on behalf of the groups they lead.
At the more local level, in Kansas a state senate candidate included on his campaign signs not only that he had founded a church and thrift store, but also included the organization's logo. The candidate insisted that the sign was purely informational. But as I noted to the reporter who wrote the story, the problem is the inclusion of the group's logo, which constitutes the use of the charity's property for the candidate's benefit. And the story also reported appearances by the candidate at two churches, which did not provide his opponent with a similar opportunity to appear.
And of course there were other reports of more common but still problematic support of candidates. These included a Kansas state house candidate using mailing equipment owned by a church; his campaign reimbursed the church for the cost of that use, but it does not appear that the church made the equipment generally available for use by the public or other candidates on similar terms as required by IRS guidance. And a Catholic priest in Mississippi called then candidate Joe BIden "an embarrassment to Catholicism" from the pulpit in late October.
There is no indication that any of these events have led to adverse IRS attention, although of course the IRS has a number of years to pursue an audit or, in the case of the churches, a church tax inquiry.
Thursday, January 9, 2020
In a tax package agreed to on December 17, 2019, last year, Congress repealed a provision of the code widely known as the church parking tax. I wrote about it on Surly Sub Group when it was enacted in 2017 concerned about its massive probably unintended effect on nonprofits. It caused massive havoc in that world, and nonprofits, led by churches mounted a massive effort to get the provision repealed. It took two years, but they were successful.
Thus, even though the IRS spent significant time providing guidance on how to comply, and presumably large nonprofits around the country adjusted their parking situation dramatically, nonprofits and the IRS must now act as if none of that ever happened. Many nonprofits like universities and hospitals likely paid large 21% rate taxes on parking fringe benefits that they continued to provide to their employees.
What now? IRS needs to figure out how to expeditiously issue refunds.
Congress members just issued a letter to the IRS asking it to issue guidance as quickly as possible to let nonprofits know how to obtain these refunds.
Tuesday, December 31, 2019
Yesterday, I wrote that this week I would be blogging about the Mormon church's $100 billion endowment.
It's worth noting here that estimating the value of the Mormon church has been something of a parlor game for the last couple decades, at least. When I was in college, Time published a story estimating the church's wealth at $30 billion. A decade and a half later, Reuters estimated that the church owned real estate worth $35 billion and received roughly $6 billion annually in donations from members in the U.S. and Canada. And now, apparently, the church receives $7 billion in contributions annually and has an investment portfolio worth $100 billion.
So why all of the estimates? Because churches in the U.S. aren't required to file the financial disclosures that other tax-exempt organizations must file. Church finances and assets, then, can be a black box. (They don't have to be a black box--nothing in the tax law prevents churches from disclosing financial data, and some churches have chosen to be transparent. More on that in a minute.)
Monday, December 30, 2019
About two weeks ago, Religion Unplugged and the Washington Post simultaneously broke a story: the Church of Jesus Christ of Latter-day Saints (which going forward I'll refer to as the Mormon or the LDS church). In brief, they reported a whistleblower complain to the IRS saying that Ensign Peak Advisers, a tax-exempt supporting organization/integrated auxiliary of the Mormon church, was sitting on investment assets worth $100 billion. Moreover, during its 32-year existence, the whistleblower alleged, it had never made any charitable distributions, to the Mormon church or any other charitable institution.
As both someone who spends a lot of time researching and writing about the intersection of tax and religion AND as a practicing Mormon, that revelation ended up taking a lot of my time. It raises interesting and ambiguous legal questions, many of which I wrote about here.
Monday, July 22, 2019
Over the past several years, the Freedom From Religion Foundation has been litigating over the constitutionality of the parsonage allowance. (The parsonage allowance, codified in section 107 of the Code, provides that "ministers of the gospel" can exclude in-kind housing or cash housing allowances from their income.)
In March, the Seventh Circuit ruled against FFRF, holding that tax-free housing allowances available exclusively to clergy didn't violate the Establishment Clause. Then, a month ago or so, FFRF announced that it wouldn't seek review by the Supreme Court.
But the battle isn't over, it turns out. Last week, the Humanist Society of Greater Phoenix announced that it was going to challenge the constitutionality of the parsonage allowance.
The article doesn't provide a ton of details, but it looks to me like it's going to follow the FFRF's playbook by designating a portion of its executives' salary as a housing allowance. (Note that, contrary to its assertion, the Humanist Society wouldn't claim any kind of exemption: the exemption belongs to the minister.) Because the Humanist Society is both a nonprofit and tax-exempt, it's in a similar position to FFRF vis-à-vis the parsonage allowance.
I assume that it believes that the IRS will reject the claim, giving it standing to challenge the provision's constitutionality in court.
I've said before that I'm not completely convinced that this grants standing, the Seventh Circuit notwithstanding. Even if it does, though, the Humanist Society may face hurdles not faced by the FFRF. Specifically, according to the article, leaders of the Humanist Society are broadly recognized as clergy. By contrast, the FFRF expressly denied by religious or quasi-religious, and rejected the IRS's assertion that maybe its executives were clergy. Because the Humanist executives are recognized as clergy, it's not clear to me that they don't qualify as "ministers of the gospel" for purposes of section 107. And, if they qualify as clergy, they're going to have a hard time getting standing to challenge the allowance.
Samuel D. Brunson
Thursday, June 27, 2019
President Trump talked about the so called "Johnson Amendment" again the other day. The Johnson Amendment, as probably most of the readers of this blog know, is the language contained in section 501(c)(3) of the Internal Revenue Code that prohibits a charity hoping to maintain its status as exempt from federal income tax from intervening in any political campaign. I say so called as it was not called that on its entry to the Code, though this article does suggest it was LBJ who was the author of the language added to the Code in 1954.
The President, speaking before the Faith and Freedom Coalition conference in Washington stated: “Our pastors, our ministers, our priests, our rabbis . . . [are] allowed to speak again . . . allowed to talk without having to lose your tax exemption, your tax status, and being punished for speaking." He then apparently jokingly cautioned that if a pastor spoke against him “we’ll bring back that Johnson Amendment so fast,” the president said to laughter, adding, “I’m only kidding.”
President Trump signed an executive order back in May. The law of course is still found within section 501(c)(3) and thus is a duly enforceable law. In my opinion, the executive order did not do anything to change the actual state of affairs of the meaning of the law or its interaction with other laws, such as the Religious Freedom Restoration Act, or constitutional rights. If anything, the current state of the law should work to protect those he jokingly threatened to use the state of the law against.
The news article I cite to above unfortunately wrongly states the following: "The president has not undone the law, like he sometimes claims he has, but rather told the Treasury Department it can enforce at its own discretion — leaving the possibility that the Trump administration could only penalize churches that oppose the president."
Although the President has not undone the law, as the article correctly states, I say wrongly in two senses: (1) he has not told the Treasury Department that it can enforce at its own discretion - he only directs Treasury to apply the law with due regard to allowing individuals and organizations to speak when speaking from a religious perspective "where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign", and (2) it would be unlawful for the administration to penalize churches that oppose the president, and his executive order did not create that possibility of such unlawful action. If you have interest in more detail on the (obvious) legal problems associated with (2), I wrote about the legal reasons why it would be unlawful for the IRS to unequally enforce the law in such a way in a longer scholarly article here considering the claims that the IRS violated conservative organizations rights when it specifically used names of groups like the Tea Party in managing its application system.
Friday, February 15, 2019
Ellen Aprill's Review of Hamburger's "Liberal Suppression: Section 501(c)(3) and the Taxation of Speech"
Ellen Aprill (Loyola-LA) recently posted a review of Professor Philip Hamburger's (Columbia) "Liberal Suppression: Section 501(c)(3) and the Taxation of Speech" at HistPhil.org. HistPhil, which is "a web publication on the history of the philanthropic and nonprofit sectors, with a particular emphasis on how history can shed light on contemporary philanthropic issues and practice." Prof. Hamburger's book argues that, as a constitutional law matter,
... theopolitical fears about the political speech of churches and related organizations underlay the adoption, in 1934 and 1954, of section 501(c)(3)’s speech limits. He thereby shows that the speech restrictions have been part of a broad majority assault on minority rights and that they are grossly unconstitutional.
Thursday, November 8, 2018
I had the pleasure of speaking to a reporter this morning. He wanted to know if the picture above, a sign posted on the front lawn of the Grace of God Church in New Port Richey, Florida on election day violated the 501(c)(3) prohibition against campaign intervention. The Church, by the way, was also a polling place so the Pastor who placed the sign was careful that it was not within 100 feet of the church, proper. Still, it was on the Church ground, posted on election day even, and the Pastor told the reporter that if he changed the mind of at least one voter, he would be satisfied. The sign was also posted, and then removed after voter outcry, from the Church' Facebook page.
The reporter and I spoke by phone as he told me where to look online for a picture of the sign. As I pulled it up, I couldn't help howling in laughter. We talked a bit about the Service's general reluctance to enforce the prohibition against houses of worship because of obvious First Amendment concerns but I concluded that this is probably the easiest case since Branch Ministries took out a full page advertisement in USA Today (I wish I had a picture of that advertisement) exhorting Christians not to vote for Bill Clinton. I allowed that when Pastors preach about particular issues on any given Sunday (farther in time from election day the better) and perhaps even condemn politicians who support or oppose positions implicating spiritual teachings, they can probably count on some degree of protection from the First Amendment. But the sign above is an easy case. The Pastor seems to know this now because in the aftermath of election day he has tried to explain that the sign conveys a purely spiritual message, a verbal tap dance that evoked another round of laughter from me. In a Tampa Bay Times article yesterday, the Pastor is quoted thusly:
Thursday, October 25, 2018
Columbia Law School Professor Philip Hamburger is a prodigious and iconoclastic legal scholar. ... Hamburger’s latest subject, in Liberal Suppression ([University of Chicago Press] 2018), is an inquiry into the legitimacy of restrictions on the political speech of non-profit organizations. Section 501(c)(3) exempts religious, educational, and charitable organizations from federal income tax but denies them this exemption if they engage in campaign speech for or against any candidate for public office or devote a substantial part of their activities to propaganda or other attempts to influence legislation. Section 170(c) makes contributions to qualifying non-profits tax-deductible to the donor. According to Hamburger, these exemptions and deductions amount to “many billions of dollars annually.”
Most people’s knee-jerk reaction is that section 501(c)(3)’s restrictions are justified by the tax-exempt status such non-profit organizations applied for and received. Rejecting such preconceptions in his trademark fashion, Hamburger strongly disagrees. Although non-profits are free to express a wide range of opinions—even political opinions—outside of political contests, Hamburger views section 501(c)(3) as “an extraordinary abridgement of an essential freedom,” which ought to be considered unconstitutional. Inasmuch as the Supreme Court has unanimously upheld the lobbying restrictions in section 501(c)(3), Liberal Suppression is nothing if not ambitious, but is it persuasive? Realizing that his arguments may appear to be an “uphill struggle,” early on Hamburger asks readers to “hold their skepticism in abeyance.”
After reading the book, my skepticism remains stubbornly intact.
Hamburger reminds the reader that from colonial times until the amendment of section 501(c)(3) in 1934 (and further tightening in 1954, and again in 1987), which imposed the restrictions he finds objectionable, American clergy actively participated in politics from the pulpit. The timing of the 1934 and 1954 restrictions, he points out, coincides with a period of “liberal” anti-Catholic sentiment in America. The principal culprits in Hamburger’s tale are nativists such as Ku Klux Klan imperial wizard Hiram Evans and then-Senator Lyndon B. Johnson, who faced a Catholic opponent in the 1954 senatorial primary. Hamburger portrays them as the instigators of section 501(c)(3)’s “oppressive” political restrictions. ...
Does section 501(c)(3) “threaten the core of most First Amendment freedoms,” as Hamburger claims? Liberal Suppression, despite its undeniable erudition and interesting digressions into American political (and theological) thought and historical asides, falls short of making a compelling case. Hamburger is likewise unconvincing in his attempt to make a connection between the restrictions in section 501(c)(3) and contemporary forms of censorship such as campus speech codes. While Hamburger’s theoretical arguments seem to miss their mark, they are always engaging and sometimes contains gems like this:
"American religion has increasingly been aligned with popular liberal and progressive opinion—even to the point of looking for salvation not in another world but in this one, and not so much from God as from democratic government."
My new book, Liberal Suppression, argues that section 501(c)(3)’s speech restrictions are prejudiced and unconstitutional. These conclusions run counter to widespread assumptions, and it is therefore understandable that Mark Pulliam and other thoughtful readers find them difficult to stomach. All the same, it is important at least to come to grips with the realities that underlie the book’s conclusions, and Pulliam’s review fails to do this. To evaluate the prejudice, one must understand its nature; and to judge the constitutional arguments, one must recognize their breadth and strength.
The prejudice underlying section 501(c)(3) arose from theologically liberal anxieties about the speech of churches. And as traced by my book, the prejudice gradually expanded into a broader liberal fear about the speech of all sort of idealistic organizations. Indeed, these liberal concerns have expanded to include fears about the orthodox or stereotypical speech of individuals. It is therefore disappointing that Pulliam reduces my account of prejudice to a simplistic complaint about narrow anti-Catholicism.
My book, in his view, argues that section 501(c)(3) speech restrictions were added “in order to reduce the influence of the Catholic Church.” Certainly, anti-Catholicism was the opening wedge. But as my book repeatedly emphasizes, the relevant prejudices were not narrowly anti-Catholic. Already in the early nineteenth, they were broadened out to take aim at business corporations, and in the strain that is central to my book, they soon reached not only churches—Protestant as well as Catholic—but also the full range of churchy organizations, including eventually all sort of idealistic groups that were not religious. ...
[T]he prejudiced sentiment about the speech of ecclesiastical and other idealistic organizations is painfully evident in section 501(c)(3). Pulliam protests that I have not shown this. Well, consider just one phrase—the section’s limit on “carrying on propaganda, or otherwise attempting to influence legislation.” Those words were no accident. They came directly out of nativist literature—a literature that, again, reached across much of American society, from KKK klaverns to Ivy League philosophy departments. Once more, the low and the high had more in common than the latter wanted to acknowledge.
Pulliam’s review, in short, recognizes neither the broad character of the prejudice nor its societal depth. And in taking a confined view of both, he misunderstands the antagonisms that underlay section 501(c)(3) and still undergird a host of other speech restrictions. ...
Tax lawyers and First Amendment lawyers tend to have very different sensibilities about the speech restrictions. Tax lawyers usually observe that churches etc. are only slightly quieted down, for they can convey their messages through auxiliary organizations, such as section 501(c)(4) organizations and section 527 PACs. First Amendment doctrine, however, treats even the slightest restriction on political speech with apprehension. And the freedom of speech is not merely the freedom to have one’s message come out of someone else’s mouth; most basically it is the freedom to speak—to speak through one’s own mouth, in one’s own voice.
Unlike Pulliam, most Americans, on both sides of the issue, understand that section 501(c)(3) matters for speech. It is the only subsection of the Internal Revenue Code that is widely known—even by its section number—and that is no accident. The whole point of the section’s speech restrictions was to satisfy deeply felt theo-political anxieties about speech—anxieties that remain pervasive. And this is why so many Americans care. Whether they like or fear the speech of ecclesiastical and other idealistic organizations, they understand that section 501(c)(3) chills such groups.
[Hat tip: TaxProf Blog]
Saturday, December 23, 2017
Ellen P. Aprill (Loyola Law School - Los Angeles) has written Amending the Johnson Amendment in the Age of Cheap Speech, University of Illinois Law Review On-Line (Forthcoming). Below is Professor Aprill's abstract:
On November 2, 2017, the House Ways and Means Committee released its proposed tax reform legislation. It includes a provision amending the provision of the Internal Revenue Code, sometimes called the Johnson Amendment, that prohibits charities, including churches, from intervening in campaigns for elected office, at risk of loss of their exemption under section 501(c)(3). Under the Ways and Means proposal, as later revised and passed by the House, organizations exempt as charities under section 501(c)(3) would be permitted to engage in campaign intervention if “the preparation and presentation of such content . . . is in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose and . . . results in the organization incurring not more than de minimis incremental expenses.”
If such legislation becomes law, the IRS and the Department will be faced with the difficult task of giving guidance as to the meaning of “regular and customary,” “de minimis,” and “incidental.” It would likely have to address whether donations could be earmarked for campaign intervention so long as they were within the organization’s de minimis limit and involved regular and customary activities. Whatever rules are announced are sure to be controversial and complicate enforcement of the prohibition for campaign intervention that is more than de minimis. Given the lack of IRS resources and controversy regarding its attempts to regulate political activities of exempt organizations, the IRS may well hesitate to take action against possible violations.
However these terms are defined and enforced, a de minimis exception raises significant issues that demand attention in an era of what Professors Eugene Volokh and Richard Hasen have called “cheap speech.” These are issues that require consideration whether or not a de minimis exception is adopted in the current tax reform legislation.
After giving background on the Johnson Amendment, this essay discusses the impact of any de minimis exception regarding campaign intervention in the age of cheap speech. It concludes that the availability of cheap speech may have undermined the most common constitutional justification for the prohibition – that the government has no duty to subsidize speech – such that a new approach to limiting the political speech of charities is needed.
Wednesday, December 20, 2017
Goodrich & Busick: Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases
Luke W. Goodrich (The Becket Fund for Religious Liberty; University of Utah - S.J. Quinney College of Law) and Rachel N. Busick (The Becket Fund for Religious Liberty Fellow) have written Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases, Seton Hall Law Review (forthcoming). Below is their abstract:
This Article presents one of the first empirical studies of federal religious freedom cases since the Supreme Court’s landmark decision in Hobby Lobby. Critics of Hobby Lobby predicted that it would open the floodgates to a host of novel claims, transforming “religious freedom” from a shield for protecting religious minorities into a sword for imposing Christian values in the areas of abortion, contraception, and gay rights.
Our study finds that this prediction is unsupported. Instead, we find that religious freedom cases remain scarce. Successful cases are even scarcer. Religious minorities remain significantly overrepresented in religious freedom cases; Christians remain significantly underrepresented. And while there was an uptick of litigation over the Affordable Care Act’s contraception mandate — culminating in Hobby Lobby and Little Sisters of the Poor — those cases have subsided, and no similar cases have materialized. Courts continue to weed out weak or insincere religious freedom claims; if anything, religious freedom protections are underenforced.
Our study also highlights three important doctrinal developments in religious freedom jurisprudence. The first is a new circuit split over the Religious Freedom Restoration Act. The second is confusion over the relationship between the Free Exercise and Establishment Clauses that is currently plaguing litigation over President Trump’s travel ban. The third is a new path forward for the Supreme Court’s muddled Establishment Clause jurisprudence.
Sunday, November 19, 2017
Samuel D. Brunson (Loyola-Chicago) and David J. Herzig (Valparaiso) have written A Diachronic Approach to Bob Jones: Religious Tax Exemptions after Obergefell, 92 Indiana Law Journal 1175 (2017). Here is the abstract:
In Bob Jones University v. United States, the Supreme Court held that an entity may lose its tax exemption if it violates a fundamental public policy, even where religious beliefs demand that violation. In that case, the Court held that racial discrimination violated fundamental public policy. Could the determination to exclude same-sex individuals from marriage or attending a college also be considered a violation of fundamental public policy? There is uncertainty in the answer. In the recent Obergefell v. Hodges case that legalized same-sex marriage, the Court asserted that LGBT individuals are entitled to “equal dignity in the eyes of the law.” Constitutional law scholars, such as Laurence Tribe, are advocating that faith groups might lose their status, citing that this decision is the dawning of a new era of constitutional doctrine in which fundamental public policy will have a more broad application.
Regardless of whether Obergefell marks a shift in fundamental public policy, that shift will happen at some point. The problem is, under the current diachronic fundamental-public-policy regime, tax-exempt organizations have no way to know, ex ante, what will violate a fundamental public policy. We believe that the purpose of the fundamental-public-policy requirement is to discourage bad behavior in advance, rather than merely to punish it after it occurs. As a result, we believe that the government should clearly delineate a manner for determining what constitutes a fundamental public policy. We recommend three safe harbor regimes that would allow religiously affiliated tax-exempt organizations to know what kinds of discrimination are incompatible with tax exemption. Tying the definition of fundamental public policy to strict scrutiny, to the Civil Rights Act, or to equal protection allows a tax-exempt entity to ensure compliance, ex post. In the end, though, we believe that the flexibility attendant to equal protection, mixed with the nimbleness that the Treasury Department would enjoy in crafting a blacklist of prohibited discrimination, would provide the best and most effective safe harbor regime.
Adam Chodorow (Arizona State) has written a brief analysis of Gaylor v. Mnuchin for the ABA Tax Times. titled A Step Toward Greater Clarity on Clergy Tax Exemptions? Here is the first paragraph:
On October 6, 2017, the U.S. District Court for the Western District of Wisconsin declared section 107(2) of the Internal Revenue Code unconstitutional. The provision permits “ministers of the gospel” to exclude from income compensation designated as a housing allowance, thus giving churches and other religious organizations the ability to provide tax-free housing to their ordained ministers. The provision applies not only to parish priests living in modest housing, but also to televangelists like Joel Osteen, who currently lives tax-free in his $10.3 million mansion. It also applies to ministers who work in church-affiliated schools as teachers and administrators. This affords a significant benefit for certain schools whose religious tenets include the ministry of all believers. In one case, a basketball coach was entitled to exclude his housing allowance from income. The government foregoes around $800 million in revenue per year as a result of this provision, and, if the decision stands, it could have a significant impact on churches and other religious institutions.
Edward A. Zelinsky (Cardozo) has written Taxing the Church: Religion, Exemptions, Entanglement,and the Constitution (Oxford University Press). Here is an overview:
- Explores the taxation and exemption of churches and other religious institutions, both empirically and normatively
- Reveals that churches and other religious institutions are treated diversely by the federal and state tax systems
- Focuses on church-state entanglements with respect to taxing or exempting churches and other sectarian entities
- Discusses improvements that can be made in legal and tax policy trade-offs, such as the protection of internal church communications and the expansion of the churches' sales tax liabilities
- A clear, balanced, and comprehensive treatment of the topic that is broadly accessible to tax policymakers, lawyers, nonlawyers, judges, tax specialists, and even those with no background in the subject
For a review, see Peter J. Reilly on Forbes.
Friday, August 18, 2017
J. Michael Martin (Evangelical Council for Financial Accountability) has published Should the Government Be in the Business of Taxing Churches?, 29 Regent U. L. Rev. 309 (2017). Here are the first two paragraphs of the introduction (footnotes omitted):
Throughout our entire history as a nation, the United States has never imposed a federal income tax on churches. In spite of this longstanding policy for over two centuries and the principle it represents of the separate spheres of sovereignty of church and state in America, some critics have recently become more vocal in questioning the legitimacy of church tax-exempt status, based primarily on financial and constitutional concerns.
As a practical matter, the courts and Congress are the two institutions where the unbroken practice of church tax exemption could be placed at risk. As the dissenting Supreme Court justices observed in Obergefell v. Hodges, the newly interpreted constitutional right to samesex marriage in the courts could evolve to threaten tax exemptions and other freedoms heretofore enjoyed by religious organizations. Also, with one political party now controlling Congress and the White House after the 2016 elections, new legislation like comprehensive tax reform has its greatest chance of passage in decades. And as with any scenario involving tax reform, there is always the chance that churches and other types of corporations and entities could find their tax status changing under a new paradigm. In light of these developments, more people may be asking: “Why should churches continue to be tax-exempt?” As the title of this Article suggests, perhaps a more appropriate way to frame the inquiry might be: “Should the government be in the business of taxing churches?”