Entanglement and conditions on tax exemptions

[Volokh, Eugene]

	I appreciate Mark's argument, and perhaps he's correct.  Still,
I keep wondering about what the boundaries of this doctrine would be.
Let me then ask two questions:

	1.  Does it follow that churches are free to employ noncitizens
who don't have work authorizations?

	2.  Why are the sermons preached in the church -- and the
electioneering or lobbying contained in them -- any more "the state's
business" than the religious group's choice of clergy employees?

	Perhaps the answer is that churches must also be exempted from
immigration laws, and from the 501(c)(3) limitations on electioneering
and lobbying.  I just wanted to see whether this is so, to get a better
sense of what the proposed rule really is.

	Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of 
> Scarberry, Mark
> Sent: Tuesday, March 14, 2006 9:43 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Entanglement and conditions on tax exemptions
> 
> 
> 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.
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