Entanglement and conditions on tax exemptions

[Rick Duncan]

In Locke v. Davey the entanglement problem was
"solved" by having each college self-certify that none
of its scholarship students were pursuing a degree in
devotional theology. I think this resulted in both
Larkin v. Grendel's Den and denominational preference
problems, but the Court seemed oblivious.

So what about a rule that requires non-profits to
certify that they don't discriminate in any employment
(including clergy) on the basis of gender as a
condition of tax exempt status? Would this solve the
entanglement problem? Or would it substitute an
entanglement problem for other EC problems?

Rick Duncan

--- "Volokh, Eugene" <VOLOKH at law.ucla.edu> wrote:

> 	Mark's enforcement point strikes me as the most
> persuasive
> argument for why the government may not apply a "no
> tax exemptions for
> groups that discriminate" condition to religious
> groups that
> discriminate in choice of clergy.  I agree that
> Smith doesn't overrule
> the ministerial exception cases, and in any event
> Dale seems to add
> force to them.  And I can see how one might argue
> that investigating the
> basis for a church's decisionmaking about its clergy
> hiring might pose
> entanglement problems even when the investigation
> comes in a subsidy
> condition rather than in a regulation.
> 
> 	Here's my question, though:  I take it that having
> government
> officials scrutinize the contents of sermons would
> also generally pose
> entangelement problems.  Yet administering the rule
> that tax-exempt
> funds may not be used for electioneering or lobbying
> has necessarily
> required that the IRS do exactly that.  I realize
> that this is somewhat
> different, because the sermons are at least said to
> a public gathering,
> while the bases for clergy hiring decisions are
> often hidden.  Is that
> distinction enough?  Or is it the case that there is
> no distinction, and
> that churches (unlike other ideological groups) are
> entitled to use
> tax-exempt funds to electioneer or lobby, at least
> in sermons?
> 
> 	Eugene
> 
> Mark Scarberry writes:
>

  Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902
   
  
"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner



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