Does the Constitutional Norm of Separation of Church and State Justify the Denial of Tax Exemption to Churches that Engage in Partisan Political Speech?
39 Pages Posted: 27 Aug 2008
Date Written: August 24, 2008
The Internal Revenue Service is aggressively investigating churches for their alleged political endorsements of candidates in the 2008 presidential election. At issue is whether these churches have violated section 501(c)(3) of the Internal Revenue Code, which imposes a ban on electioneering by churches and other charities as a condition of maintaining federal income tax exemption. The ban has been justified as necessary to ensure the proper separation of church and state. Building on Is the Ban on Participation in Political Campaigns by Charities Essential to their Vitality and Democracy?, 42 U. Rich. L. Rev. 1057 (2008), available at http://ssrn.com/abstract=1021601, Not Even a Peep? The Regulation of Political Campaign Activity by Charities through Federal Tax Law, 75 U. Cin. L. Rev. 1071 (2007), available at http://ssrn.com/abstract=931262, and The Community Income Theory of the Charitable Contributions Deduction, 80 Ind. L. J. 947 (2005), available at http://ssrn.com/abstract=842325, this article critically analyzes the separationist rationales for the ban. Four major variants of the separationist argument are articulated and thoroughly analyzed in the context of relevant Supreme Court case law, statutory law, administrative guidance, and the norms that underlie the First Amendment. After critically reflecting upon each version of the separationist defense of the ban, as well as the underlying assumptions of each variant, this article concludes that the separation norm not only fails to support the ban, but also counsels against it. This article concludes by briefly explaining the implications of this analysis for public policy.
Keywords: political campaign, political activities, charitable organizations, electioneering, churches, electoral politics, tax-exempt, tax exemption, section 501(c)(3), charitable contribution, election, separation of church and state
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