BOSTON COLLEGE
Boston College Law Review

Student
Publications

Volume 42 July 2001 Number 4

[Pages 733-770]
MORE HONORED IN THE BREACH:A HISTORICAL PERSPECTIVE OF THE PERMEABLE IRS PROHIBITION ON CAMPAIGNING BY CHURCHES
Patrick L. O'Daniel*

Abstract:  Since 1954, there has been a prohibition on certain forms of intervention in political campaigns by entities exempt from taxation under section 501(c)(3) of the Internal Revenue Code—including most churches. This Article provides a historical perspective on the genesis of this prohibition—the 1954 U.S. Senate campaign of its sponsor, Lyndon Baines Johnson, and the involvement of religious entities and other 501(c)(3) organizations in his political campaign. Although Johnson was not opposed to using churches to advance his own political interests, he did seek to prevent ideological, tax-exempt organizations from funding McCarthyite candidates including his opponent in the Democratic primary, Dudley Dougherty. The illumination of these motivations is done through the extensive use of President Johnson’s personal papers and provides a more complete understanding of the contours of the prohibition.

[Pages 771-804]
A QUIET FAITH? TAXES, POLITICS, AND THE PRIVATIZATION OF RELIGION
Richard W. Garnett*

Abstract:  The government exempts religious associations from taxation and, in return, restricts their putatively political expression and activities. This exemption-and-restriction scheme invites government to interpret and categorize the means by which religious communities live out their vocations and engage the world. But government is neither well-suited nor to be trusted with this kind of line-drawing. What’s more, this invitation is dangerous to authentically religious consciousness and associations. When government communicates and enforces its own view of the nature of religion—i.e., that it is a private matter—and of its proper place—i.e., in the private sphere, not in politics—it tempts both believers and faith communities to embrace this view. The result is a privatized faith, re-shaped to suit the vision and needs of government, and a public square evacuated of religious associations capable of mediating between persons and the state and challenging prophetically the government’s claims and conduct.

[Pages 805-842]
ARE TAX "BENEFITS" FOR RELIGIOUS INSTITUTIONS CONSTITUTIONALLY DEPENDENT ON BENEFITS FOR SECULAR ENTITIES?
Edward A. Zelinsky*

Abstract:  The Supreme Court generally conditions tax exemptions, deductions, and exclusions for religious organizations and activities upon the simultaneous extension of such benefits to secular institutions and undertakings. The Court’s position flows logically from its acceptance of the premise that tax exemptions, deductions, and exclusions constitute subsidies. However, the “subsidy” label is usually deployed in a conclusory and unconvincing fashion. The First Amendment is best understood as permitting governments to refrain from taxation to accommodate the autonomy of religious actors and activities; hence, tax benefits extended solely to religious institutions should pass constitutional muster as recognition of that autonomy.

[Pages 843-874]
CHURCHES, POLITICS, AND THE CHARITABLE CONTRIBUTION DEDUCTION
Ellen P. Aprill*

Abstract:  Churches often bear the burden of the Internal Revenue Code’s electioneering prohibition without their contributors enjoying the benefit of a tax deduction. Although contributions to religious congregations may be deducted, many, perhaps most of them, are not because many of those who give to churches do not itemize their income tax deductions. In the past two years, Congress has had before it several bills that would permit nonitemizing taxpayers to deduct their charitable contributions. This Article argues that extending the deduction to nonitemizers raises important issues of tax policy that should concern religious organizations. The author contends that religious congregations will benefit from considering some of the difficult questions about the relationship of the charitable contribution deduction to the standard principles of tax policy. If they do, they might support either a deduction only above a floor or a charitable contribution credit rather than a 100% deduction for nonitemizers.

[Pages 875-902]
OF POLITICS AND PULPITS:A FIRST AMENDMENT ANALYSIS OF IRS RESTRICTIONS ON THE POLITICAL ACTIVITIES OF RELIGIOUS ORGANIZATIONS
Steffen N. Johnson*

Abstract:  This Article explores some of the policy justifications offered in support of restricting the political activities of tax-exempt religious organizations. The author begins with an overview of the scope of current federal restrictions and then considers the contention that it is inappropriate for religious organizations to be involved in politics from their own standpoint. He argues that federal restrictions on the political activities of tax-exempt religious organizations raise a fundamental question of mission that must be resolved by each organization according to its conscience. The author also considers restrictions from the standpoint of public policy and constitutional law, with a focus on the government’s interest in not compelling taxpayers to subsidize political speech with which they disagree, and its interest in preserving its ability to prevent the taking of tax deductions for contributions to political candidates. He concludes that appropriate respect for the values of free speech and free exercise warrants a narrowing construction of the restrictions in certain circumstances.

[Pages 903-930]
PROHIBITION IN SEARCH OF A RATIONALE:WHAT THE TAX CODE PROHIBITS; WHY; TO WHAT END?
Deirdre Dessingue*

Abstract:  Each Presidential election renews the thorny debate over the appropriate role of churches and other religious organizations in American political life. Although churches are subject to other restraints on political activity, the prohibition on church political activity under section 501(c)(3) of the Internal Revenue Code is the harshest in terms of penalties. Faced with the extraordinary scope of the prohibition as interpreted by the IRS, and perceived non-enforcement of egregious violations, churches tend toward one or two extremes: they either ignore the prohibition and endorse candidates or they avoid legitimate involvement with important policy issues.

[Pages 931-940]
RENDERING UNTO CAESAR OR ELECTIONEERING FOR CAESAR? LOSS OF CHURCH TAX EXEMPTION FOR PARTICIPATION IN ELECTORAL POLITICS
Alan L. Feld*

Abstract: The restriction on church participation in political campaigns contained in the Internal Revenue Code operates uneasily. It appears to serve the useful purpose of separating the spheres of religion and electoral politics. But the separation often is only apparent, as churches in practice signal support for a particular candidate in a variety of ways that historically have not cost them their exemptions. Although the limited enforcement by the Internal Revenue Service has reflected the sensitive nature of the First Amendment values present, the federal government should provide more formal elaboration by statute or regulation. Focus on the use of funds seems warranted, to prevent the diversion of government subsidy from exempt purposes to political activity. Beyond that comparatively clear line, the practical difficulties of enforcement loom large.

[Pages 941-966]
"FORECASTS OF DOOM":THE DUBIOUS THREAT OF GRADUATE TEACHING ASSISTANT COLLECTIVE BARGAINING TO ACADEMIC FREEDOM
Joshua Rowland

Abstract:  On March 29, 2000, an administrative law judge of the National Labor Relations Board approved a settlement between the NLRB and Yale University, which resolved unfair labor practices charges made against the University by its Graduate Employees and Student Organization. This decision, however, did not resolve the underlying question of whether graduate teaching assistants are employees under the National Labor Relations Act. This Note analyzes recent cases concerning the unionization of graduate student teaching assistants at private universities and colleges. This Note argues that the NLRB’s application of a “compensated services” test to teaching assistants is correct and that the public policy arguments against collective bargaining for teaching assistants are based on flawed conceptions of the university, the work teaching assistants do, and the purposes of the National Labor Relations Act.

[Pages 967-988]
SHOULD HIGHER EDUCATION RACE-BASED FINANCIAL AID BE DISTINGUISHED FROM RACE-BASED ADMISSIONS?
Amy Weir

Abstract:  Higher education admissions and financial aid offices, while similar in appearance, differ in fundamental ways. Because of their key differences, the constitutional issues triggered by the offices’ official use of race and ethnicity as a criterion in decisionmaking should be scrutinized differently. Courts and agencies that have considered race-based financial aid programs have, however, applied the same strict scrutiny test used in prior admissions cases. The author tracks the evolution of race-based financial aid and scholarships, and then explores the growing need for privately donated financial aid dollars. She then argues that given the pressures currently placed on the financial aid process, schools should be allowed to accept privately restricted donations for race-based scholarships.