volokh at mail.law.ucla.edu
Wed Nov 21 17:49:38 PST 2001
Sorry -- reminds me to be more explicit in my posts. My point is simply
that Alan Armstrong's argument about the need to let leaders of religious
organizations tell their members about politicians' behavior applies equally
to leaders of secular organizations. The requirement that tax-exempt
organizations not engage in political commentary might permissibly be
applied to both, or one might repeal it as to both. But I don't see an
adequate justification for applying it only to religious organizations and
not secular ones, or vice versa; and I think such a distinction would
violate the Free Speech Clause and either the Establishment Clause or the
Free Exercise Clause (or perhaps even both).
> -----Original Message-----
> From: Law & Religion issues for Law Academics
> [mailto:RELIGIONLAW at listserv.ucla.edu]On Behalf Of James Maule
> Sent: Wednesday, November 21, 2001 5:14 PM
> To: RELIGIONLAW at listserv.ucla.edu
> Subject: Re: religious favoritism?
> I assume you're raising this as a First Amendment issue? Or are
> you raising it as a tax policy issue?
> In other words, if it is permissible to restrict the speech of
> all tax-exempt organizations (do organizations have First
> Amendment rights? Or do we look through to the membership and
> consider the restriction to be a restriction on the members? Even
> though the members can speak in their individual capacity without
> affecting the organization's status?), then is there a problem in
> restricting non-religious tax exempt organizations and not
> restricting religious ones? Isn't that another variation of the
> EC v. FE clause tension?
> Assuming it is Constitutionally permissible to restrict
> non-religious organizations and not religious ones, does this
> make good policy sense? Just because it can be done doesn't mean
> it should. If the opinions of clergy are important, why not the
> opinions of other organizations that are no less involved in
> social issues?
> A tidbit: Bruce Hopkins (the foremost national expert on the
> tax-exempt organization issues) says this in his 2d ed. of The
> Law of Tax-Exempt Organizations about the restriction: "This
> proposal was made in an attempt to curb the activities of a
> private foundation in Texas that Senator Johnson believed had
> provided indirect financial support to his opponent in an
> election." No cites given. (It's interesting how many tax
> provisions have their origins in some isolated incident.....)
> Jim Maule
> Professor of Law, Villanova University School of Law
> Villanova PA 19085
> maule at law.villanova.edu
> President, TaxJEM Inc (computer assisted tax law instruction)
Publisher, JEMBook Publishing Co. (www.jembook.com)
Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)
Maule Family Archivist & Genealogist (www.maulefamily.com)
>>> volokh at MAIL.LAW.UCLA.EDU 11/21/01 03:45PM >>>
Why shouldn't the leader of a nonreligious association (ACLU, NRA,
likewise be able to tell his members that a politician's position is
inconsitent with the association's beliefs ("e.g., you should not vote for a
known violator of civil rights"), without losing the exemption?
> I thought Congress was going to repeal the law that Johnson got passed
> before he was president.
> A preacher should be able to tell the congregation that a politician's
> position is inconsistent with the religious organization's belief without
> losing the exemption.
> e.g. "You should not vote for a known sinner. Adultery is a sin and Joe
> Shmoe has committed adultery."
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