Vol. 21 No. 9 (September, 2011)
POLITICS, TAXES, AND THE PULPIT: PROVOCATIVE
FIRST AMENDMENT CONFLICTS, by Nina J. Crimm and Laurence H. Winer. Oxford,
UK: Oxford University
Press, 2011. 420pp. Hardback.
$75.00/£45.00. ISBN: 9780195388053.
Reviewed by John C. Blakeman, Associate Professor and Chair, Department of
Political Science, University of Wisconsin-Stevens Point. Email:
John.Blakeman [at] uwsp.edu.
Chapter one is a good summary of the major tax benefits and other accommodations
that churches receive from federal and state governments. Relying
on the examples of Roger Williams and the founding of Rhode Island and William
Penn and the founding of Pennsylvania, the authors note that early political
leaders in the colonies “struggled with tensions between religion and taxation,”
and Williams and Penn “strongly believed that taxes should not be imposed on
colonists to support houses of worship” (p.33). Yet,
churches still sought accommodations from the political process and “the score
of legislatively created financial and nonpecuniary religious accommodations is
considerable” (p.68). The
authors discuss in detail the specific tax exemptions that individual donors to
churches receive under federal law and also provide some discussion of state
law. In their discussion of income tax deductions for donations to churches, the
authors rely on survey data from several sources to show that upwards of 65% of
adults donate money to churches and religious groups, although the statistics on
the number of taxpayers who itemize and claim those donations on federal and
state tax returns are not necessarily clear. [*592] Nonetheless,
it is fair to say that churches and other religious groups enjoy “a government
subsidy, either directly to the donating, itemizing taxpayer or indirectly to
the house of worship receiving a contribution” and thus receive substantial
economic benefits from state and local income, sales, and property tax
exemptions (p.61). The
chapter is a very good overview of the topic. Perhaps more data about the
economic benefits that churches receive in the form of tax breaks and subsidies
would have added some quantitative context to the authors’ argument, but
understandably that data may be very difficult – if not impossible – to compile.
In chapter two Crimm and Winer continue the main theme set out in the prior
chapter, devoting more focused attention to the history of tax exemptions for
churches from the colonial era to the present. It
is a well-researched and well-argued chapter. Scholars
from many different disciplines who study religion in the United States – from
law and history to political science and sociology – will find the chapter very
useful in providing a wealth of information on a technical topic usually
reserved to tax attorneys. Relying on debates and sources from the colonial and
founding eras the authors argue that tax exemptions for religious organizations
“were never justified on the basis of their acting as religious
institutions…instead, such tax exemptions arose either because of the futility
of taxing an established church, a state agent, or the economic and social
utility of fostering houses of worship to perform ‘charitable’ activities
beneficial to public welfare” (p.145). Crimm and Winer supplement their use of
early sources with a discussion of the debates in Congress over extending tax
exemptions to churches, and in all they provide a thorough overview of the
historical and ongoing debates over tax policy and churches.
In chapters 3 and 4 Crimm and Winer turn to address two distinct yet related
questions. In chapter 3
the authors focus on whether the First Amendment religious liberty clauses
“mandate, permit, or prohibit” the federal governments’ taxing of churches. In
chapter 4 they focus on whether the specific ban on political speech by churches
that receive a federal tax exemption is [*593] constitutionally justifiable. In
assessing the interaction between Congress’s taxing power and the religious
liberty of churches Crimm and Winer devote some attention to Founding debates on
religious liberty, and rely especially on James Madison’s writings. They
argue specifically that “the Religion Clauses do not prohibit Congress from
taxing religious entities” (p.161). Even
so, they also point out that for political and practical reasons it is very
unlikely that Congress would seek to tax churches any time soon. Tax
exemptions for houses of worship are deeply entrenched in American politics
(pp.185-86). The
authors also provide a detailed discussion of Supreme Court decisions on church
tax issues to illustrate that the high court’s view is generally that the
religious liberty clauses “permit, but do not require, Congress to legislate tax
exemptions for religious entities” (p.75).
In chapter 4 the authors also explore in depth the related question of whether
the ban on political speech for churches that receive the federal tax exemption
is constitutionally justifiable. They
suggest that it is not. Crimm
and Winer provide a detailed examination of Supreme Court cases on free speech,
with careful attention to its decisions on political speech, and build an
argument that the “gag rule” under 501(c)(3) is a content based regulation on
speech. A couple of
points are noteworthy here. First,
the authors argue that “no one questions the absolute right, indeed the duty, of
spiritual leaders to speak from the pulpit” on a wide range of moral, spiritual,
social, and economic issues. They
assert that “no one would think that such speech should be subject to any
government review” (p.196). Thus,
the gag rule on church political speech is “clearly a content-based restriction”
because it “focuses only on the content of the speech and the direct impact that
speech has on its listeners.” The
gag rule’s constitutionality is further suspect since the tax code defines
political speech in a “very ambiguous” manner too (p.196) A
second point that the authors make in chapter 4 concerns the Supreme Court’s
views on corporate speech and especially the Court’s conclusion in Citizens
United v. FEC. Crimm
and Winer point out that the 501(c)(3) gag rule on churches (and charitable
groups in general) is analogous to the campaign finance provisions that the
Court struck down in Citizens
United, and the Court’s analysis of corporate speech in that case “when
applied to the type of nonprofit, ideologically based entities that houses or
worship epitomize, suggests the gag rule on houses of worship may be similarly
unsustainable” (p.259). It
will be very interesting indeed if the Court at some point extends its decision
in Citizens United to
churches and other charitable groups, as Crimm and Winer portend.
The final two chapters focus specifically on how federal courts have interpreted
the statutory ban on political campaign speech and also offer policy
prescriptions for solving some of the constitutional conflicts created by the
ban as it applies to religious speech. Chapter 5 details the wide
range of cases dealing with 501(c)(3), and
the authors point out that the gag rule is not designed to suppress dangerous
ideas; instead it censors political speech normally protected by the free speech
clause. More
specifically, the gag rule “is designed to prevent certain speakers, 501(c)(3)
entities, from addressing matters based on their specific, partisan political
content” (p.269). In
operation, the gag rule stops clergy (and churches) from using their “unique
moral and religious authority” to address prominent issues of the day from their
unique theological perspective. They
speculate that the “most likely challenge” to the gag rule will involve “the
ability of a religious leader to speak from the pulpit, a distinctive and
uniquely important exercise of both speech and religious liberties” (p.318). Crimm
and Winer are quick to note here that litigation will take quite a long time to
resolve any conflicts over religious speech and the 501 gag rule, and since
Congress created the gag rule “largely for reasons of political expediency and
opportunism, not principle,” it should amend the law.
The authors provide suggestions for reform of the gag rule in Chapter 6. Those
interested in the precise details of their policy proposals should, of course,
read the book since this short summary cannot do justice to the detail that they
[*594] provide. However, in brief the authors recommend a multi-faceted reform
of the 501 gag rule as it applies to churches only and their policy approach has
two main aspects to it. First, they propose modifying current 501(c)(3)
regulations so that taxpayers who donate to churches cannot deduct from their
income tax those donations used for political campaign speech. Thus,
the gag rule becomes a restriction on donors, and “the onus is thus shifted to
the contributing itemizing taxpayers, whose own entitlement to deduct
contributions would be predicated on the house of worship … refraining from any
political campaign speech” (p.330). Their
proposal among other things creates an “internal marketplace” that regulates
churches: “if money
speaks louder than words, congregants’ donations to a … house of worship that is
dependent upon them may diminish substantially because they are not tax
deductible as a result of a
spiritual leader’s political campaign speech”(p.336). Second,
Crimm and Winer argue that the tax exempt status of churches should be
maintained – indeed, they note the political impossibility of repealing it – but
a separate 501 category should be created for churches. Churches
will be allowed to “opt in” to the new category, in contrast to the existing
system where churches are presumed to be tax exempt and thus regulated by the
gag rule, unless they specifically opt out of the tax exemption scheme. The
new 501 category for churches would maintain their tax exempt status and the tax
deductibility of their donors, as under the current system. Churches would be
enticed to “opt in” to the new system by an interesting incentive: joining
the new tax scheme would allow churches to engage in “internal” partisan
political speech free from government restriction (p.323) The
authors define “internal speech” as speech that is “part of a
sermon, prayer meeting, Bible study … which occurs exclusively within the
confines of a private setting – the sanctuary, chapel, or other room in the
house of worship … and for which existing congregants are the intended
audience”(p.338) As the
authors note, this focus on the internal speech of churches “should satisfy
opposition to public, political proselytizing by houses of worship” and will
minimize “fears of potential collusion between houses of worship and political
candidates”(p.339)
In all, Politics, Taxes, and the Pulpit
is a very important contribution to the literature on law and religion. It ably
addresses a topic that is often understudied, and the authors do a wonderful job
of taking a complex topic and making it accessible to scholars of different
disciplines. Social
scientists, historians, legal scholars, and others who study religion and
politics will all find useful information in the book.
Citizens United v. Federal Election Commission,
130 S. Ct. 876 (2010).
© Copyright 2011 by the author, John C. Blakeman.