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View Diary: Bill Maher says Romney's Mormon church donations are NOT charity (178 comments)

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  •  As long as there's a mechanical test, (1+ / 0-)
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    there wouldn't be a problem.  The government wouldn't be favoring this or that religion; they'd be providing deductions for actual charity.  As long as its a neutral regulatory scheme applied evenly, there's no constitutional issue (see, eg, Employment Division v Smith)

    •  I don't know that Employment Div vs. Smith (0+ / 0-)


      Maybe it does, but the entanglement of (otherwise) criminal activity seems to put the case on entirely different legal grounds.

      If it applies, I don't understand the crossover from criminal- to tax-law.

      It seems curiosity has killed the cat that had my tongue.

      by Murphoney on Sat May 05, 2012 at 07:10:13 AM PDT

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      •  The general principle is that there's no (1+ / 0-)
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        first amendment objection available where the law at issue is facially neutral and isn't intended to wack religion.

        The lead case in the law of exempt orgs is Branch Ministries v Rossoti, in which a church's exemption was stripped for engaging in prohibited political activity.  The church sued, claiming a first amendment right to political speech.  The court held for the IRS, and cited Smith as follows:

        The Supreme Court has held that under the Free Exercise Clause of the First Amendment, application of a neutral, generally applicable law need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.  Employment Div. v. Smith, 494 U.S. 872, 879 (1989); see  Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993). Under the rationale of
        Smith, plaintiffs cannot state a First Amendment Free Exercise Clause claim.
        •  ok, there's still the wrinkle of prohibited (0+ / 0-)

          activity in Branch Ministries v Rossoti -- and I don't know if that's significant, or not -- but that helps me understand, thanks.

          However, a certain amount of government intrusion into the finances of a church has apparently already been determined to be more than an incidental burden, so that precedent would need to be considered in the "general application" requirement of any mechanical test.

          It seems curiosity has killed the cat that had my tongue.

          by Murphoney on Sat May 05, 2012 at 09:20:28 AM PDT

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          •  where has it been held that inquiry into (1+ / 0-)
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            finances is a more than incidental burden?  I know Congress has exempted churches from the 990 reporting regime, but that's a matter of legislative prerogative, not a constitutional requirement as far as I know.  

            •  given no other rationale for exemption from both (0+ / 0-)

              requirement of filing the 990 and from the requirement to file for exemption from filing the 990, there is the -- now, would this be pro forma or de facto -- admission of Congress that it should not make such a requirement.

              I don't know what prerogative Congress would exercise in order to reverse itself, without treading on the Freedom of Religion.

              It seems curiosity has killed the cat that had my tongue.

              by Murphoney on Sat May 05, 2012 at 09:39:29 AM PDT

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              •  It's not an "admission of congress." (0+ / 0-)

                Congress can do all sorts of things that don't constitute some constitutional position.  They can take away the special exemptions for churches as easily as they provide them, IOW.

                •  found it: (0+ / 0-)

                  in Walz vs. Tax Commission of the City of New York, SCOTUS ruled

                  the exemptions for religious organizations created only a minimal and remote involvement between church and state, and far less of an involvement than would be created by taxation of churches, and the effect of the exemptions was thus not an excessive government entanglement with religion. The grant of a tax exemption was not sponsorship of the organizations because the government did not transfer part of its revenue to churches but simply abstained from demanding that the churches support the state. The exemption created a more minimal and remote involvement between church and state than did taxation because it restricted the fiscal relationship between church and state and reinforced the desired separation insulating one from the other.

                  It seems curiosity has killed the cat that had my tongue.

                  by Murphoney on Sat May 05, 2012 at 04:10:57 PM PDT

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        •  That Smith quote comes from the district court (0+ / 0-)

          not the circuit court.  PDF of that district court opinion is here.

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