Issue of “standing” is once again before the U.S. Supreme Court

FOR IMMEDIATE RELEASE
Contact: Jeff Huett | Phone: 202-544-4226 | Cell: 202-680-4127
Cherilyn Crowe | Phone: 202-544-4226 | Cell: 615-519-0620

November 3, 2010

WASHINGTON — In a case heard today, the Baptist Joint Committee for Religious Liberty says the U.S. Supreme Court should protect the right of taxpaying citizens to sue over an alleged violation of the U.S. Constitution’s prohibition of a government establishment of religion. The BJC joined a friend-of-the-court brief in the case. 

The High Court heard oral arguments in Arizona Christian School Tuition Organization v. Winn, et al., and the Court’s decision could impact a citizen’s ability to bring suit, which is known in legal terms as “standing.” 

“Standing” has been a significant issue in Establishment Clause cases in recent years. 

Click here to read more about this case and recent decisions regarding "standing."

Supreme Court hears arguments over prisoner’s rights

Contact: Jeff Huett | Phone: 202-544-4226 | Cell: 202-680-4127
     Cherilyn Crowe | Phone: 202-544-4226 | Cell: 615-519-0620

November 2, 2010

WASHINGTON – Prisoners have a right to the free exercise of religion and may seek damages against the state under federal law when their rights are violated, according to a brief filed by the Baptist Joint Committee and other groups in a case that will be heard today by the U.S. Supreme Court.

The High Court will hear oral arguments in Sossamon v. Texas, a case involving the claim of a prisoner, Harvey Leroy Sossamon, who was denied participation in worship services and access to a room with symbols and furnishings that have a special significance to his Christian religion. 

Click here to read the rest of the story.

Click here to download the brief joined by the BJC in this case.

     The right of taxpaying citizens to sue over an alleged violation of the U.S. Constitution’s prohibition of a government establishment of religion should be protected, says the Baptist Joint Committee for Religious Liberty in a U.S. Supreme Court brief it joined in Arizona Christian School Tuition Organization, et. al. v. Winn, et. al.

     The ability to bring suit in federal court (known in legal terms as “standing”) has been a significant issue in Establishment Clause cases in recent years. In its 2007 decision in Hein v. Freedom from Religion Foundation, a case that challenged aspects of the Bush Administration’s Office of Faith-based and Community Initiatives, the Court said taxpayers do not have standing to sue for alleged Establishment Clause violations when federal money is not disbursed through a specific legislative enactment. In the 2010 case of Salazar v. Buono (regarding the display of a cross on federal land in the Mojave National Preserve), the government advanced an argument that would restrict the right to sue in religious display cases, but the Court did not rule on the issue of standing.    

Plaintiff standing will again be before the High Court in Winn. At issue is whether an Arizona tax credit program violates the Establishment Clause. The program allows taxpayers to receive a credit for donations to “school tuition organizations” that provide scholarships to students who attend private schools — including private religious schools. The tax credit program, first enacted in 1997, sets regulations for the participating school tuition organizations, and has continued to be revised during the course of litigation. Currently, it allows any individual to direct up to $500 of his or her state income tax bill to a state tuition organization, which then provides private school scholarships. Plaintiffs allege that the program operates unconstitutionally primarily because many of the participating tuition organizations award scholarships only to religious schools.

     The brief, filed by Americans United for Separation of Church and State and joined by the Baptist Joint Committee, the American Jewish Committee and other organizations, asks the Court to protect the right of taxpaying citizens to bring the suit. In Winn, the plaintiffs are Arizona taxpayers who believe tax dollars are unconstitutionally funding religion through the government program. The defendants assert that the plaintiffs do not have the taxpayer standing needed to file this suit because they claim the funds at issue are private, charitable donations disbursed through tax credits — not direct legislative expenditures. While the constitutionality of the tax credit program requires a distinct analysis incorporating several factors, the brief says that, for purposes of taxpayer standing, tax credits have the same economic impact on the government and should be treated the same as legislative expenditures.     

     “The argument to deny these taxpaying citizens the right to sue is completely off-base,” said BJC General Counsel K. Hollyn Hollman. “A state legislature should not be able to avoid a legal challenge to a potentially unconstitutional program by simply using an alternative tax mechanism. That denies citizens the right to fight for strong protections against a governmental establishment of religion.”

     The Supreme Court will hear oral arguments in the case on Nov. 3.

Election season inevitably tempts some 501(c)(3) nonprofit organizations to test the boundaries of the prohibition on endorsing or opposing candidates. A carefully choreographed campaign by an interest group that claims pastors are wrongfully muzzled and offers to defend them in court exacerbates the situation. Complaints will be filed, investigations will be opened, and it seems likely that eventually someone will get the test case they seek.

Such shenanigans make some question why houses of worship are treated as exempt from federal income taxes in the first place. What about property tax exemptions? How does the relationship between religious entities and taxing authorities fit into a constitutional framework that requires that the government neither advance nor inhibit religion? While these questions deserve more attention than can be presented in this space, a few facts and considerations deserve attention, not only because of questions that arise during the election season, but because of increased pressure from local authorities eager to raise revenues.  

First, some tax exemptions for churches have a long historical pedigree and do not typically raise the threat of an Establishment Clause violation.  Under federal law, churches are part of a broad class of nonprofit entities under Section 501(c)(3) that are treated the same, singled out neither for special advantage or disadvantage. That law is consistent with the U.S. Supreme Court decision upholding a property tax exemption for churches, noting that the exemption “creates only a minimal and remote involvement between church and state and far less than taxation of churches.” Walz v. Tax Comm’n of the City of New York (1970). It was in Walz that the Court stated that the two Religion Clauses allowed “room for play in the joints productive of a benevolent neutrality which will permit religious expression to exist without sponsorship and without interference.”

Second, churches do not tend to produce or accrue “wealth” of the kind that is generally taxed. In most cases, churches are organized as nonprofit organizations and must be operated exclusively for religious, charitable and educational purposes. They are prohibited from being used in a way that inures to private benefit. That is not to say that religious entities have no relation to the taxing authorities. Church employees, like employees of other nonprofits and for-profit entities, are taxed on their income. And nonprofits must pay taxes on income generated by activities that are unrelated to their tax-exempt purpose, taxes known as “UBIT” or unrelated business income taxes.  Some questions about church exemptions and suggestions of establishment issues are based on a failure to see the fundamental differences between the operation of churches and for-profit entities.

Third, it is important to note that while the Supreme Court’s precedents provide a basis for tax exemptions for churches without violating the constitutional ban on an establishment of religion, the Court has never held that the tax exemptions are constitutionally required. Property and many other tax laws are a matter of state and local concern and vary widely, even within a state. It is not uncommon for religious entities, including churches, to find themselves in a defensive posture when arguing for a tax exemption, often because the local government does not understand how the church operates or the policy basis for providing exemptions. In such circumstances, churches must understand not only the constitutional factors that make exemptions permissible but also the public policy justifications that make exemptions advisable.

More than 30 years ago, Dean M. Kelley, a well-respected religious liberty scholar and advocate, as well as executive for the National Council of Churches, examined a range of such policy justifications in the book, “Why Churches Should Not Pay Taxes.” Many things have changed on the religious landscape since then. Yet the importance of understanding various aspects of the topic remains timely. While some churches violate IRS rules against electioneering, betting that they can maintain a favorable tax status (receiving tax-deductible donations), others are fighting mightily to preserve exemptions in the face of growing pressures from local tax authorities. All should bear in mind that what’s constitutionally permissible may not be constitutionally required—and the future of tax exemptions and the rules that accompany them is primarily a question of policy, not constitutional law.

This column appeared in the October 2010 edition of "Report from the Capital"

It’s good to be back from my summer-long sabbatical. Thanks to James Dunn, Buzz Thomas, Stan Hastey and Melissa Rogers for so ably writing this column. Thanks, too, for Holly Hollman and her good leadership serving as acting executive director. What a marvelous job she and the rest of the staff did in my absence.    

I appreciate the Baptist Joint Committee Board’s generosity in allowing me this time off. The mainstay of my sabbatical was three road trips — one with my wife, Nancy, one with my son, Ryan, and one alone. I logged 10,200 road miles and traversed 29 states (including Hawaii for the Baptist World Alliance meeting) while visiting 16 presidential homes, museums and libraries and 12 professional baseball parks/games. I also mixed in a visit to the Grand Canyon and a week of teaching Vacation Bible School.    

The trips’ basic itineraries were planned, but we were flexible enough to enjoy some serendipitous sidebars like visiting the Birmingham Civil Rights Institute in Alabama, the Cincinnati Zoo, the Louisville Slugger Museum and Factory, the Winston Churchill Memorial and Library at Westminster College in Fulton, Mo., the Colorado National Monument near Grand Junction, that “corner in Winslow, Arizona” and a lavender farm near Shawnee, Okla., to name a few.      

The sabbatical was bracketed by two week-long spiritual retreats: one in Cullman, Ala., at St. Bernard’s (Benedictine) Abbey and the other at Eastern Point Retreat House (Jesuit) in Gloucester, Mass.    

Although I went away for the summer, threats to religious liberty and fights to protect it did not. And, upon my return, I hit the ground running.

The week leading up to September 11 each year is always a trying time. This year it was exacerbated by the controversy over the proposed Islamic Center in Lower Manhattan and the threat to burn Qurans in Gainesville, Fla. My first day back, I joined other religious leaders in a meeting with U.S. Attorney General Eric Holder.  We asked the nation’s chief law enforcement officer to make a strong public statement on September 11 underscoring the federal government’s commitment to religious freedom and condemning crimes and other forms of harassment and discrimination against Muslim and other faith communities.     

The next day I had the rare opportunity of being interviewed on Alhurra television’s “Al Youm” program (called the “Today” show of that network). It broadcasts in 22 countries in the Middle East. I tried to communicate to the viewers in other parts of the world, particularly Muslims, how those who want to burn Qurans are far out of the mainstream of public opinion and to express a voice of reason from the mainstream of American Christianity.     

On September 10, I had the privilege of appearing on “Hardball with Chris Matthews.” This gave me another opportunity to endorse, along with President Barack Obama and New York City Mayor Michael Bloomberg, the principle of religious liberty embodied in the proposed Islamic Center near, but certainly not on or even adjacent to, the hallowed soil of Ground Zero.    

Yes, I went away for the summer, but religious liberty issues did not go away.    

The following week, the First Amendment Center issued the tally of its annual State of the First Amendment Survey. The results of that poll indicate why the fight for religious liberty never ends. Although two-thirds of those responding endorsed the general idea of a clear separation of church and state under the First Amendment, an astonishing 53 percent believe that the U.S. Constitution establishes a “Christian nation.” Never mind that the Constitution does not mention Christianity and refers to religion only once in Article VI to disallow a religious test for public office, and the language in the First Amendment makes absolutely clear that government is not supposed to advance religion generally or to prefer any religion.    

Equally disturbing are the results of a question dealing with the free exercise of religion in which 28 percent of the respondents said freedom to worship should not apply to religious groups “most people consider fringe or extreme.” I am glad this expresses a minority position, but even nearly three in 10 is way too many. The American experiment in religious liberty has been successful in large part because it has been able to assimilate and protect the religious freedom of “fringe or extreme” religions — from Baptists in colonial times to Catholics and Mormons in the 19th Century to Jehovah’s Witnesses and Christian Scientists in the 20th and, I pray, Muslims in the 21st.     

So, we still have a lot of work to do, not just in the courts, the Congress and the White House, but in the forum of public opinion. Education — in the media, our schools and houses of worship — about the nature and value of religious freedom is absolutely essential to its preservation.     

Threats to religious liberty and efforts to protect it never take a sabbatical.