My latest FindLaw column addresses the controversy over the effort by the Alliance Defense Fund, through its "Pulpit Initiative," to challenge the Johnson Amendment. The ADF has posted a link to my column, along with the somewhat mysterious notation that I am "a self described 'liberal'." On the occasions when I've taken somewhat conservative positions, liberals have sometimes called me out for abandoning the cause, but this is the first time I can recall that a conservative organization has challenged my liberal credentials. Perhaps the ADF likes to think of itself as "liberal" in the sense of defending religious liberty?
In any event, it's hard to know what to make of the ADF reception of my treatment of the issue. I say in the column that their constitutional challenge is not frivolous but should probably lose. I also say that religious separationists are wrong to suggest that the Johnson Amendment is constitutionally required. But the ADF folks clearly think I've missed the boat. They say that I "assume tax exemption for churches is a government gift granted through the Internal Revenue Code." Having heard an ADF spokesman on the radio last week, I think what they mean by this is that churches are just inherently non-taxable.
That's a mysterious position. If churches are non-taxable other than by "gift" of Congress, it must be because the Constitution forbids their taxation. I acknowledge as much in my column. I don't assume the Constitution fails to convey immunity. I argue it, point by point.
The only constitutional argument that now occurs to me that I don't consider in the column is that the activities of churches fall outside the scope of any Article I power. But that's an almost obviously frivolous argument insofar as churches engage in income-generating activity. Perhaps equally obviously, some activities of churches are non-taxable on this theory. E.g., a tax on prayer would be invalid as beyond Article I or the Sixteenth Amendment, quite apart from the First Amendment. But that's not at issue here. It's worth noting that Article I includes a number of provisions limiting the taxing power of Congress. (E.g., "No tax or duty shall be laid on articles exported from any state.") Neither it nor the Sixteenth Amendment nor any other provision---except perhaps the First Amendment per the arguments I consider and reject in my column---expressly exempts churches from federal taxation. (Which, as I say in the column, is not to say that taxing churches, or the Johnson Amendment, is necessarily a good idea.)
I await further enlightenment and/or vilification.
Posted by Mike Dorf