Zelinsky, in Defense of the Johnson Amendment Proposed Consent Order

The entire debate is premised on shaky assumptions

Ed Zelinsky is out this morning with some interesting and thought-provoking commentary about the proposed consent order in National Religious Broadcasters v. Commissioner this morning. He generally defends the proposed order as the best that can be achieved in a world of imperfect solutions. I tend to agree but take issue with the premises underlying the debate. Here is Zelinksy’s executive summary:

I write to explore the settlement reached by the parties in National Religious Broadcasters. As a substantive matter, that settlement has much to commend itself. In a world of trade-offs and imperfect choices, it is compelling as a matter of free exercise to protect internal church communications from the Johnson Amendment’s prohibitions while continuing to otherwise forbid the use of tax-deductible dollars for political campaigning. By implementing such an interpretation of the Johnson Amendment, the National Religious Broadcasters settlement illuminates the strengths and weaknesses of that interpretation. This interpretation respects the autonomy of churches, synagogues, mosques and other houses of worship while generally forbidding section 501(c)(3) organizations from being used as conduits for tax-deductible campaign contributions.

Zelinsky defines the problem early. As applied to organized worshippers, the Johnson Amendment burdens the free exercise of religion. But without the Johnson Amendment, taxpayers would invariably subsidize campaign expenses. I am not sure we spend enough time on either assertion. The first, that the Johnson Amendment burdens the free exercise of religion is often met with the response that worshippers aren’t “prohibited” from anything. They may be deprived of a subsidy but that deprivation is not a prohibition.

The assertion assumes the government could decide to tax revenues derived from worship as long as it does so across all religions. That is, church tax exemption is a privilege extended by the government, not something to which organized worshippers are entitled. I have not often heard a different assertion made, but one author — Dean M. Kelley — argues in a hard to find, out of print book that if the power to tax is the power to destroy, the First Amendment prohibits taxation of churches in any event. And he convincingly argues that not taxing religion cannot logically be viewed as establishing religion if no religion at all is taxed. He was a minister, not an attorney or legal scholar, but he was an intellectual force. He cites all the important cases (up to 1977) and the known experts of the day like Bitker and Surrey.

I think Walz v. Commissioner entertained a false dichotomy, by the way. That taxing churches prohibits the free exercise of religion, but exempting churches establishes religion. The first part is provable, the second is not. Selectively exempting churches would “establish” religion, but an across the board decision not to tax churches doesn’t. It merely leaves religion where it would be in a tax free world. And if only the first violates the Constitution, only the first is prohibited.

Nor am I convinced that not taxing organized worshippers necessarily subsidizes anything they do, political or spiritual. Aprill and Mayer write thoughtfully on the issue of whether tax exemption is a subsidy. The gist of my misgiving is that if organized worshippers are constitutionally excluded from the tax base in the first place, the government’s not taxing them can hardly be considered a subsidy of a church’s campaign activity or anything else a church engages. The government would no more subsidize churches than it would subsidize a state or foreign government naturally or constitutionally excluded from the tax base. Government cannot exclude (or exempt) something that was never included.

So the debate regarding the Johnson Amendment is plagued by some questionable starting points. First, that government may, if it so decided, tax churches as long as it does not do so selectively. Second, that not taxing churches means that government is somehow paying churches. Our debates regarding the Johnson Amendment do not sufficiently acknowledge the questionability of those premises.

Incidentally, the deductibility of donations to organized worshippers is a different matter. The deduction is clearly a subsidy — for individual taxpayers, not religion — and just as clearly a matter of grace, not a constitutional requirement. Zelinsky therefore acknowledges Sam Brunson’s proposal to deny deductions for donations used by churches and other charities for campaign activity.

Zelinsky provides a very useful one-stop summary of the scholarly debates regarding the Johnson Amendment, the arguments made by the plaintiffs in the current litigation, the proposed consent order, and then his own analysis grounded as much in pragmatism as in high theory. He supports the proposed consent order as the best that might be achieved, given the premises I think are questionable:

In a setting of imperfect choices and trade-offs, the best substantive alternative is to modify the Johnson Amendment to immunize internal church communications from the restraints of the amendment. Central to the controversy over the Johnson Amendment is the church-state entanglement and the chilling of religious speech that the Johnson Amendment causes. As the core of the problem is the Johnson Amendment’s impact on internal church conversations, the most appropriate response would be a targeted measure addressed to that particular problem. This approach would address a church’s legitimate free exercise and speech concerns while leaving the Johnson Amendment otherwise intact to protect against the use of section 501(c)(3) entities to channel campaign contributions on a tax-deductible basis.

Immunizing internal church communications from the prohibitions of the Johnson Amendment would eliminate enforcement-related entanglement between the IRS and houses of worship. Although the IRS is unlikely to flood churches with agents to monitor ministers’ sermons for compliance with the Johnson Amendment, the possibility of such church-state enforcement entanglement is untoward, chilling constitutionally protected religious speech. This troubling prospect will be eliminated if internal church communications are removed from the coverage of the Johnson Amendment, leaving nothing for the IRS to enforce regarding these communications within congregations.

I tend to agree with where Zelinsky lands. His solution fits my contrarian premises that churches are constitutionally outside the tax base anyway and for that reason not taxing them cannot be viewed as a subsidy. Except with one important caveat. Zelinsky thinks the proposed consent order “immunizes [only] internal church communications.” The proposed consent order uses the word “internal” just once and whatever the word may mean, I am not sure it was incorporated into the operative portion. The operative portion states that the Court:

PERMANENTLY ENJOINS Defendants, as well as their successors, agents, and employees, from enforcing the Johnson Amendment against Plaintiff Churches based on speech by a house of worship to its congregation in connection with religious services through its customary channels of communication on matters of faith, concerning electoral politics viewed through the lens of religious faith.

If, as some have argued to the Court, the proposed consent order will immunize all church communications, not just those “internal” to churches, Zelinsky might object. I would not.