(The Return of) Ignatz, by Sam Heldman

Friday, August 16, 2002

Churches and political speech (You can see that today I am breaking my semi-vow to steer clear of general law punditry). Two Tears has a post about pending legislation that would -- according to its proponents and its opponents alike, viewing by the web pamphleteering that I can find by googling -- allow churches to engage in partisan politics, where they are now prohibited by law from doing so.

This is a point on which lawyers can be either useful or pedantic, depending on your point of view. Though I'm not a church lawyer or a tax lawyer, I will bet dollars to donuts that churches are NOT prohibited by current law from doing any political activity they want to do, no matter how partisan. Any church that wants to, could start endorsing candidates tomorrow. What they are prohibited from, is doing certain political activity while maintaining tax-exempt status. This is a major distinction. Tax-exempt status is a benefit that the government chooses to bestow on some sorts of entities, if they meet certain conditions including refraining from politics. But churches -- like other eleemosynary institutions (good word, huh? did I spell it right?) -- could forego that status and get political if they wanted.

Should we abolish the rule that "you can't do politics and be tax-exempt" for all tax-exempt organizations? Hard question, but I don't think so. Should we do it for only some? Easier question, to my eye: no (because the government shouldn't be favoring some advocacy groups over others). Would it be an establishment of religion, in violation of the First Amendment, to do it only for the churches? Hard question, but there's a good argument that it would. I seem to remember that one of the Volokhs had something tangentially or maybe directly along these lines the other day, either pro or con, but can't find it.

posted by sam 3:32 PM 0 comments


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