Entanglement and conditions on tax exemptions

[Scarberry, Mark]

In answer to Eugene's posts and to Bobby's question about whether an
originalist with my views (or Judge McConnell's) should seek a
constitutional amendment:

I'm not sure what the right rule is in terms of when religious groups should
be (or constitutionally must be) given access to government funds on an
equal footing with nonreligious groups. What I am convinced of, however, is
that the qualifications set up by a religious group for its its leaders, and
how such leaders are chosen, are none of the state's business and cannot be
considered in deciding what an "equal footing" means. The Religion Clauses
were designed to prevent the state from controlling the church (and vice
versa). The most effective way to control a church is to control who its
leaders are (or how the leaders are chosen). Originalism then leads me to
the conclusion that it is a part of Free Exercise and an aspect of
non-Establishment that the state not use its police powers, or taxing and
spending powers, to influence the choice of religious groups' leaders. It is
the effect that matters here, not the intent of the state. Thus even
neutral, generally applicable laws (e.g., a law requiring all charitable
organizations to choose their leaders democratically) are subject to this
prohibition as applied to religious groups.

This is the analogue to the "no religious Test" clause of Article VI. The
church cannot set up a religious requirement for secular office; similarly,
the state cannot set up a secular requirement for religious office. And it
is not enough to say that the state may not directly compel religious groups
in their choice of leaders. We must also say that the state cannot bribe
religious groups with respect to those choices. Thus a religious group must
be eligible for state funds, or not, without regard to the qualifications it
sets up for its leaders or the manner in which they are chosen.

I'm working through a hypo that creates some difficulties with this
approach. Suppose the state says it will fund social services through
religious and nonreligious groups, but that no one may handle the funds who
has been convicted of embezzlement. A church chooses a pastor who was
convicted of embezzlement several years ago but who has, in the church's
view, changed his ways. I'm hoping that there is a distinction that will
handle this case; common sense suggests that the state may require a degree
of proven honesty in those to whom it entrusts funds. Perhaps someone else
has already addressed this issue or can suggest an appropriate distinction.

Now back to my business reorganization in bankruptcy casebook, with a March
29 deadline that will prevent me from participating actively on this list
for a couple of weeks.

Mark S. Scarberry
Pepperdine University School of Law
 

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, March 13, 2006 11:00 PM
To: Law & Religion issues for Law Academics
Subject: Entanglement and conditions on tax exemptions

	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:

> Of course enforcement of antidiscrimination rules in clergy choice 
> would be highly problematic, requiring in many cases inquiry into the 
> internal processes of a religious body and likely second-guessing of 
> the religious determinations made by the body (e.g., which of two 
> candidates lives the more holy life or understands religious doctrines 
> more fully and correctly?). The resulting entanglement would create 
> Establishment Clause issues even if we trusted secular fact-finders to 
> determine whether the religious body discriminated on the prohibited 
> basis or instead just picked the more religiously qualified candidate.
> 
> Limiting application of antidiscrimination laws only to groups that 
> admit that they discriminate (e.g., Roman Catholics and a lot of 
> theologically conservative Protestant groups who admit that they will 
> not choose women as members of the clergy) would avoid some of those 
> problems, but then arguably it would make application of the law 
> neither neutral nor generally applicable, to the extent that matters.
> 
> Note that Locke v. Davey suggests a special sensitivity to the state 
> getting involved with training of clergy. I think the case was wrongly 
> decided, but the best ground for defending it is the special nature of 
> clergy and the constitutional value that is advanced when the state 
> stays out of matters involving clergy, and in particular stays away 
> from helping, with tax dollars, to train clergy. It's not too much of 
> a leap to say that there also should be a special sensitivity to the 
> state getting involved in the choice of clergy, and influencing that 
> choice by tax policy. In either case, it's a high voltage religious 
> freedom matter. If the state is justified in withholding benefits from 
> Mr. Davey -- even though normally the withholding of benefits would 
> violate one of the clearest constitutional prohibitions, the 
> prohibition on viewpoint discrimination -- then there is also a 
> strong, constitutionally significant value involved in keeping the 
> state away from having a hand in clergy choice.
> 
> Finally, Doug Laycock's substantive neutrality test leads us to say 
> that the state should not effectively destroy a church
> -- which is what the denial of tax benefits could do over the 
> not-too-long run by preventing it from competing in the religious 
> arena on an equal footing with other religious groups -- by denying 
> tax exempt status based on choice of clergy. Doing so might be 
> formally neutral, but it isn't substantively neutral. Given our 
> traditions, equal tax treatment of religious groups without regard to 
> how they choose their clergy will not, for example, create an 
> incentive for a person to attend a church that does not allow women to 
> be clergy, if that person thinks that women should be allowed to be 
> clergy. The state will not cause such a person to change his or her 
> mind by giving tax benefits to both kinds of churches. But if the 
> "discriminatory" church is denied tax exempt status, a lot of people 
> who agree with it (who think women should not be allowed to be clergy) 
> may nevertheless end up attending and supporting churches that do 
> allow women to be clergy, because their donations to that church will 
> carry a tax benefit.
> 
> Of course, if you think the state should have a role in influencing 
> churches in the selection of clergy, then you will not mind the lack 
> of substantive neutrality. But that approach is contrary to our 
> traditional understanding of religious liberty.
_______________________________________________
To post, send message to Religionlaw at lists.ucla.edu To subscribe,
unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly or
wrongly) forward the messages to others.