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Friday, October 05, 2012

Pulpit Freedom Sunday and Church Autonomy

In case you haven't marked your calendars yet, Sunday is "Pulpit Freedom Sunday," a day on which churches, encouraged by the Alliance Defence Fund, will engage in more or less overt endorsement of candidates for political office, in contravention of the rules limiting electioneering by tax-exempt organizations, and dare the IRS to enforce the law against them. (Stories here and here, to start.)

As my friend and co-blogger Rick has written, the law in this area is "intimidating," and I can't do an adequate job of examining it all here. I do want to ask one question about it, however. Rick and I have both written approvingly about a principle of church autonomy. Lloyd Hitoshi Mayer has written an excellent article arguing that church autonomy, or principles of "institutional free exercise," militate against the enforcement of the anti-electioneering laws with respect to churches, writing that "a proper appreciation of that view would bar the government from applying the prohibition to not only sermons but also a broader range of internal communications from religious leaders to the members of their houses of worship on matters of religious importance." Does belief in some form of church autonomy require this position?

I think the answer is no. Church autonomy is at bottom about the right of churches to be left alone, to preserve a sphere of non-interference from the state even in the face of neutral, generally applicable laws so that they can do their work, and to recognize the potentially limited scope of the state's jurisdiction over churches. That work most certainly may include speaking out in favor of or against policies and candidates; it is absurd to suggest that this kind of activity falls outside the proper scope of religion. An institutional view of churches and institutional religious freedom certainly suggests a right to speak out on such issues. But I don't understand it to include a right to tax-exempt status, or a right to receive conditional benefits shorn of those conditions, provided the conditions are generally applicable. The church's fundamental right to exist has much more to do with its right to subsist and thrive (or fail) on its own bottom than with some kind of right to state support for its existence. With Hosanna-Tabor decided, albeit with many details left to be worked out, the debate over church autonomy will be moving increasingly toward its role where "funding with strings" is involved, in my view. There's a good deal to be written in this area. But in my view, while church autonomy requires a sensitive application of conditions in this area, it does not free churches that seek to participate on an equal basis in receiving state subsidies from the obligation to abide by the conditions of those subsidies.

There may be other issues here, such as the application of RFRA and the doctrine of unconstitutional conditions. But church autonomy itself, I think, does not offer any additional support for "Pulpit Freedom Sunday." To the contrary, I think there are good arguments for supporters of church autonomy that, not that refraining from electioneering is a good thing--that's a matter for individual churches--but that tax-exempt status itself is a dangerous thing for those who believe in what has been called the principle of "a free church in a free state." Churches are free to seek to participate on an equal basis in seeking state subsidies and exemptions, in my view, but they ought to consider at the same time whether doing so is always the best thing for that church and its independence.  

Posted by Paul Horwitz on October 5, 2012 at 08:25 AM in Paul Horwitz | Permalink

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Though we're no con law mavens, us tax folks who follow this think that there's a good argument, apres Citizens United, that both "church autonomy" and RFRA arguments are redundant, and that we'll see strict scrutiny of tax-code restrictions on church political activity soon. But--and again, no first amendment expertise here--that does seem to raise the question of whether there is a compelling government basis for the restrictions. For example, allowing open-ended subsidies for political activity, whose value increases with the income of the donor, may be a really, really bad way of encouraging religious speech. Or at least that's my view, as I argue at considerable length here, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2055384.

Posted by: BDG | Oct 5, 2012 9:25:01 AM

Paul raises an excellent point, which I tried to address in my article, although in a section that preceded the institutional free exercise discussion. More specifically, I stated that "if government chooses to grant houses of worship [tax benefits] for activities other than political campaign intervention, it places a substantial burden on the exercise of religion by house of worship if it withdraws that benefit based on religiously motivated political campaign intervention that cannot be easily distinguished from other [religiously motivated] activities." That is, if government chooses to grant substantial tax benefits to houses of worship, it raises constitutional concerns for government to require houses of worship to relinquish those benefits (and so put themselves at a financial disadvantage with respect to other houses of worship) if for religious reasons they feel they need to speak to their members specifically about candidates. I am not trying to argue that houses of worship have a right - constitutional or otherwise - to the tax benefits they enjoy. Instead, what I am arguing is that once government grants such benefits generally it is limited in what conditions it may place on those benefits.

Posted by: Lloyd Mayer | Oct 5, 2012 9:27:43 AM

Hi Paul -- I tried to put together some thoughts on this issue in this short essay, a few years ago: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=904225

While I think there are reasons to worry about the implementation of limits on "political" activities by religious organizations, and also about the "conditions" concerns raised by Lloyd, I agree with you (I think) that the notion of there being *some* limit on the political activities of tax-exempt organizations, including churches, is not itself inconsistent with "church autonomy" / "the freedom of the church." That said, again, I think there are fuzzy "yay for pluralism and diversity among civil-society institutions that serve as checks on government power" reasons for thinking that we should give even tax-exempt religious institutions a lot of lee-way in this area.

Posted by: Rick Garnett | Oct 5, 2012 3:59:04 PM

I appreciate the comments from people who have thought more and better about these issues than I have. In response to Lloyd, I would say that I appreciate his point and plead the limitations of blogging; I wanted to say more about this, particularly about the ambiguity of statements like a recent bishop's statement about voting for Obama as a mortal sin (that's a paraphrase!) and the difficulty of distinguishing, not between core religious speech and electioneering because I don't think there's a distinction there, but between speech that is clearly electioneering and speech that isn't. What ended up in the post was a brief statement about "sensitive application." On Rick's point, I am sympathetic in some measure, but would add that 1) while obviously (given my new book) I think there is a constitutional/judicial element to the "yay for pluralism" sentiment, in this area I think it may be a matter of policy rather than constitutional right, which is how the pulpit freedom folks are framing it, and 2) I think the "yay for pluralism and mediating institutions" sentiment must also involve some thinking about limits, constitutional or self-imposed, on cooperation with the state, for the kinds of reasons that Madison and Koppelman have talked about. Best to all.

Posted by: Paul Horwitz | Oct 6, 2012 8:59:28 AM

We ought to think hard about whether the game is worth the candle. Churches definitely risk running people off by becoming too political. At the same time, churches often have important reasons of faith to comment on political issues, and historically have played important roles in many major political issues, perhaps most notably slavery and civil rights. People who continue to attend a church with a more political pastor are almost certainly seeking out that message, and if not through church would seek it out elsewhere. But most churches are not terribly political, and their pastors scrupulously neutral less because of concerns about taxes than concerns about keeping people in church.

Enforcement of the prohibition necessarily embroils the state in issues of church governance and religious belief. Those of us who have been involved on the political side understand that complaints are routinely wielded as political weapons.

For many years there was no prohibition on tax exempt organizations engaging in political speech - that was a Lyndon Johnson innovation in the 1950s, in retaliation for churches that opposed his election. The reason for granting tax exemptions is because we believe that society benefits from the exemptions. Does it really stop benefiting just because some pastors make some overtly political statements?

And the line between political and non-political activity is a blurry one, indeed. Is it political for the pastor to rail against "politicians who support abortion rights, would force churches to pay for health services that violate our beliefs, use drones to kill people around the world, and have presided over economic policies that have led to declining incomes for the poor and middle class even as incomes for the richest Americans go up"? Aren't all of these things within the church's concerns?

If we're going to get aggressive about enforcement with churches about such comments, we would need to look at many (c)(3) organizations, including colleges and universities. Of course, the alternative might be to say, "yeah, the speech above is fine - so how much of a burden is it not to conclude the above speech by adding "vote against X"? Perhaps true, but why should the church have to pull its final message? Voter misinformation is a major problem. The number of voters who pull the lever for the candidate whose position is directly contrary to the voter's belief is not insubstantial (i.e. pro-choice voters who supported Bush because they believed he was pro-choice, or who supported Gore because they believed he was calling for tax reductions). If pastors can make the speech above, shouldn't they be able to close the message?

In other words, a bit of politicking from the pulpit with tax exempt dollars may be a small price to pay for assuring the First Amendment safeguards of free speech and freedom or religion and association. I think it is hard to argue that a bit of politicking makes the tax-exempt status no longer worth granting; and hard to argue that strict enforcement of a no-politics rule is worth the cost in First Amendment freedoms.

Posted by: Brad Smith | Oct 7, 2012 2:28:09 PM

I second those who said that it might be fine for all churches to lose tax exemptions, but it's shaky to have churches keep/lose exemptions based on their speech or "politicking." Along those lines, let's be honest and admit that we've seen more complaints and policing about the "moral majority" churches, and a free pass for black churches to be more political for decades.

I also second those who say that any lifting of exemptions should cover other non-religious 501(c)(3)s that step up to the line, or cross it, in politicking.

Finally, perhaps economic conservatives, even if they are also socially conservative churchgoers, should have a cynical reason for wanting their churches to lose tax deductions. It's easy for, say, the Catholic Church to support a higher-tax welfare state when they're not chipping in for the taxes. If they paid a share of the load, they might not be so quick to support that view. :-)

Posted by: another cynic | Oct 9, 2012 3:35:57 PM

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