by Nina J. Crimm and Laurence H. Winer. Oxford, UK: Oxford University Press, 2011. 420pp. Hardback. $75.00/£45.00. ISBN: 9780195388053.
Reviewed by John C. Blakeman, Associate Professor and Chair, Department of Political Science, University of Wisconsin-Stevens Point. Email: John.Blakeman [at] uwsp.edu.
Scholars who teach and research on religion and politics are probably quite confused at times by the complexity of the various tax benefits that churches and religious organizations receive from federal, state and local governments. Nina J. Crimm and Laurence H. Winer address that complexity in a readable and engaging way. Their book, Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts, is an excellent resource for scholars who want to understand more fully the “complex and sometimes colliding policy, statutory, and constitutional issues” (p.17) that are part of the ongoing debates over tax exemptions for houses of worship. (The authors rightly discuss churches and houses of worship broadly defined so as to include religious groups and institutions that might be considered “churches” under normal nomenclature yet still qualify for tax exemptions. This review simply uses “church” or “churches” for the sake of brevity.) Crimm and Winer mainly focus on specific federal tax provisions such section 501(c)(3) of the Internal Revenue Code that bar churches from engaging in political campaign speech. However, they also analyze in detail broader constitutional issues concerning the First Amendment free speech and religious liberty clauses, and their book provides an excellent and broad overview of the historical, political, and constitutional debates surrounding tax policy and religious institutions.
Chapter one is a good summary of the major tax benefits and other accommodations that churches receive from federal and state governments. Relying on the examples of Roger Williams and the founding of Rhode Island and William Penn and the founding of Pennsylvania, the authors note that early political leaders in the colonies “struggled with tensions between religion and taxation,” and Williams and Penn “strongly believed that taxes should not be imposed on colonists to support houses of worship” (p.33). Yet, churches still sought accommodations from the political process and “the score of legislatively created financial and nonpecuniary religious accommodations is considerable” (p.68). The authors discuss in detail the specific tax exemptions that individual donors to churches receive under federal law and also provide some discussion of state law. In their discussion of income tax deductions for donations to churches, the authors rely on survey data from several sources to show that upwards of 65% of adults donate money to churches and religious groups, although the statistics on the number of taxpayers who itemize and claim those donations on federal and state tax returns are not necessarily clear. [*592] Nonetheless, it is fair to say that churches and other religious groups enjoy “a government subsidy, either directly to the donating, itemizing taxpayer or indirectly to the house of worship receiving a contribution” and thus receive substantial economic benefits from state and local income, sales, and property tax exemptions (p.61). The chapter is a very good overview of the topic. Perhaps more data about the economic benefits that churches receive in the form of tax breaks and subsidies would have added some quantitative context to the authors’ argument, but understandably that data may be very difficult – if not impossible – to compile.
In chapter two Crimm and Winer continue the main theme set out in the prior chapter, devoting more focused attention to the history of tax exemptions for churches from the colonial era to the present. It is a well-researched and well-argued chapter. Scholars from many different disciplines who study religion in the United States – from law and history to political science and sociology – will find the chapter very useful in providing a wealth of information on a technical topic usually reserved to tax attorneys. Relying on debates and sources from the colonial and founding eras the authors argue that tax exemptions for religious organizations “were never justified on the basis of their acting as religious institutions…instead, such tax exemptions arose either because of the futility of taxing an established church, a state agent, or the economic and social utility of fostering houses of worship to perform ‘charitable’ activities beneficial to public welfare” (p.145). Crimm and Winer supplement their use of early sources with a discussion of the debates in Congress over extending tax exemptions to churches, and in all they provide a thorough overview of the historical and ongoing debates over tax policy and churches.
In chapters 3 and 4 Crimm and Winer turn to address two distinct yet related questions. In chapter 3 the authors focus on whether the First Amendment religious liberty clauses “mandate, permit, or prohibit” the federal governments’ taxing of churches. In chapter 4 they focus on whether the specific ban on political speech by churches that receive a federal tax exemption is [*593] constitutionally justifiable. In assessing the interaction between Congress’s taxing power and the religious liberty of churches Crimm and Winer devote some attention to Founding debates on religious liberty, and rely especially on James Madison’s writings. They argue specifically that “the Religion Clauses do not prohibit Congress from taxing religious entities” (p.161). Even so, they also point out that for political and practical reasons it is very unlikely that Congress would seek to tax churches any time soon. Tax exemptions for houses of worship are deeply entrenched in American politics (pp.185-86). The authors also provide a detailed discussion of Supreme Court decisions on church tax issues to illustrate that the high court’s view is generally that the religious liberty clauses “permit, but do not require, Congress to legislate tax exemptions for religious entities” (p.75).
In chapter 4 the authors also explore in depth the related question of whether the ban on political speech for churches that receive the federal tax exemption is constitutionally justifiable. They suggest that it is not. Crimm and Winer provide a detailed examination of Supreme Court cases on free speech, with careful attention to its decisions on political speech, and build an argument that the “gag rule” under 501(c)(3) is a content based regulation on speech. A couple of points are noteworthy here. First, the authors argue that “no one questions the absolute right, indeed the duty, of spiritual leaders to speak from the pulpit” on a wide range of moral, spiritual, social, and economic issues. They assert that “no one would think that such speech should be subject to any government review” (p.196). Thus, the gag rule on church political speech is “clearly a content-based restriction” because it “focuses only on the content of the speech and the direct impact that speech has on its listeners.” The gag rule’s constitutionality is further suspect since the tax code defines political speech in a “very ambiguous” manner too (p.196) A second point that the authors make in chapter 4 concerns the Supreme Court’s views on corporate speech and especially the Court’s conclusion in Citizens United v. FEC. Crimm and Winer point out that the 501(c)(3) gag rule on churches (and charitable groups in general) is analogous to the campaign finance provisions that the Court struck down in Citizens United, and the Court’s analysis of corporate speech in that case “when applied to the type of nonprofit, ideologically based entities that houses or worship epitomize, suggests the gag rule on houses of worship may be similarly unsustainable” (p.259). It will be very interesting indeed if the Court at some point extends its decision in Citizens United to churches and other charitable groups, as Crimm and Winer portend.
The final two chapters focus specifically on how federal courts have interpreted the statutory ban on political campaign speech and also offer policy prescriptions for solving some of the constitutional conflicts created by the ban as it applies to religious speech. Chapter 5 details the wide range of cases dealing with 501(c)(3), and the authors point out that the gag rule is not designed to suppress dangerous ideas; instead it censors political speech normally protected by the free speech clause. More specifically, the gag rule “is designed to prevent certain speakers, 501(c)(3) entities, from addressing matters based on their specific, partisan political content” (p.269). In operation, the gag rule stops clergy (and churches) from using their “unique moral and religious authority” to address prominent issues of the day from their unique theological perspective. They speculate that the “most likely challenge” to the gag rule will involve “the ability of a religious leader to speak from the pulpit, a distinctive and uniquely important exercise of both speech and religious liberties” (p.318). Crimm and Winer are quick to note here that litigation will take quite a long time to resolve any conflicts over religious speech and the 501 gag rule, and since Congress created the gag rule “largely for reasons of political expediency and opportunism, not principle,” it should amend the law.
The authors provide suggestions for reform of the gag rule in Chapter 6. Those interested in the precise details of their policy proposals should, of course, read the book since this short summary cannot do justice to the detail that they [*594] provide. However, in brief the authors recommend a multi-faceted reform of the 501 gag rule as it applies to churches only and their policy approach has two main aspects to it. First, they propose modifying current 501(c)(3) regulations so that taxpayers who donate to churches cannot deduct from their income tax those donations used for political campaign speech. Thus, the gag rule becomes a restriction on donors, and “the onus is thus shifted to the contributing itemizing taxpayers, whose own entitlement to deduct contributions would be predicated on the house of worship … refraining from any political campaign speech” (p.330). Their proposal among other things creates an “internal marketplace” that regulates churches: “if money speaks louder than words, congregants’ donations to a … house of worship that is dependent upon them may diminish substantially because they are not tax deductible as a result of a spiritual leader’s political campaign speech”(p.336). Second, Crimm and Winer argue that the tax exempt status of churches should be maintained – indeed, they note the political impossibility of repealing it – but a separate 501 category should be created for churches. Churches will be allowed to “opt in” to the new category, in contrast to the existing system where churches are presumed to be tax exempt and thus regulated by the gag rule, unless they specifically opt out of the tax exemption scheme. The new 501 category for churches would maintain their tax exempt status and the tax deductibility of their donors, as under the current system. Churches would be enticed to “opt in” to the new system by an interesting incentive: joining the new tax scheme would allow churches to engage in “internal” partisan political speech free from government restriction (p.323) The authors define “internal speech” as speech that is “part of a sermon, prayer meeting, Bible study … which occurs exclusively within the confines of a private setting – the sanctuary, chapel, or other room in the house of worship … and for which existing congregants are the intended audience”(p.338) As the authors note, this focus on the internal speech of churches “should satisfy opposition to public, political proselytizing by houses of worship” and will minimize “fears of potential collusion between houses of worship and political candidates”(p.339)
In all, Politics, Taxes, and the Pulpit is a very important contribution to the literature on law and religion. It ably addresses a topic that is often understudied, and the authors do a wonderful job of taking a complex topic and making it accessible to scholars of different disciplines. Social scientists, historians, legal scholars, and others who study religion and politics will all find useful information in the book.
Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010).
© Copyright 2011 by the author, John C. Blakeman.