Separation of Church and State Law

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Law Review Articles: 501(c)(3), 1st Amendment History, etc.

Carl H. Esbeck, Dissent and Disestablishment: The Church-State Settlement in the Early American Republic, 2004 BYU L. Rev. 1385 (2004)

I. Introduction…….. 1386
II. The Dual-Authority Pattern Characteristic of the West ……. 1395
A. The American Settlement ……….. 1395
B. Reformation on the Continent ……… 1401
C. Reformation in England…..1404
1. Catholic England …… 1404
a. Thomas à Becket …….. 1405
b. Magna Carta…… 1407
2. The English reformation ……. 1408
a. The birth of the Church of England…… 1408
b. The remaining Tudors ……. 1410
c. From the Stuarts to the Hanoverian succession…… 1412
D. Colonial America Through the First Great Awakening….. 1414
E. Pre-Revolution Forerunners of the Settlement……. 1420
1. John Locke …….1420
2. Elisha Williams…. 1421
3. James Burgh …… 1427
4. Isaac Backus….. 1432
a. Pre-Revolution dissent…….. 1433
b. New England Baptists and the Revolution …… 1437
c. The first Massachusetts constitution…….. 1439
d. Mixed signals from the courts …… 1444
III. Disestablishment: The American Settlement Unfolds ….. 1448
A. The Context for Disestablishment (1774−1833) …… 1448
B. Anglican Disestablishment: The Middle and Southern States .. 1457
1. Delaware…………… 1459
2. New Jersey……… 1468
3. New York …….. 1473
4. North Carolina …… 1481
5. Maryland …….. 1484
6. South Carolina………… 1491
7. Georgia…… 1495
C. John Leland: Evangelist of Dissent ….. 1498
1. Virginia: Leland’s crucible….. 1498
2. Connecticut: Leland as pamphleteer…1501
3. Massachusetts: taking the citadel …… 1512
D. Congregational Disestablishment: New England …….. 1524
1. Vermont ……. 1525
2. New Hampshire…….. 1530
3. Maine ……. 1536
E. Lyman Beecher: Converted Skeptic ……… 1540
F. The Settlement as Seen by Historians …….. 1547
1. Alexis de Tocqueville …… 1551
2. Robert Baird…….. 1552
3. Philip Schaff….. 1555
4. George Bancroft …… 1558
5. William Warren Sweet……. 1562
6. Jack Rakove ……1570
IV. The Modern Supreme Court: An Empty Clause and a Rich Tradition….  1576
V. Conclusion ……. 1589


Fall 2007 When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court’s Analysis Carl H. Esbeck University of Missouri School of Law, esbeckc@missouri.edu. Recommended Citation Carl H. Esbeck, When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court’s Analysis, 110 W. Va. L. Rev. 359 (2007)

“To summarize, the First Amendment is pro-religious freedom, which is quite different from being pro-religion. This predisposition includes the modem Establishment Clause, not just the Free Exercise Clause. The Religion Clauses do not conflict. Rather, both clauses work to safeguard religious freedom, albeit they operate differently to bring that about. The Free Exercise Clause is a rights-conferring clause that vests in religious individuals, including protection for any religious organizations they may form. On the other hand, the Establishment Clause is a structural clause that is about limiting in all cases the government’s net power to legislate on matters more properly within the purview of organized religion. 17 This means that the Establishment Clause, unlike the Free Exercise Clause, will afford relief in some instances where there is “no injury in fact,” a truism that the Supreme Court has adjusted to by allowing the fiction of taxpayer standing. 1″ [365]


“IGNORE THE RUMORS-CAMPAIGNING FROM THE PULPIT IS OKAY: THINKING PAST THE SYMBOLISM OF SECTION 501(c)(3)” (Michael Hatfield, 20 Notre Dame J.L. Ethics & Pub. Pol’y 125 2006, http://churchesandtaxes.procon.org/sourcefiles/ignore-the-rumors-campaigning-from-the-pulpit-is-okay-thinking-past-the-symbolism-of-section-501c3.pdf)

If you go to this cite (http://ssrn.com/abstract=890386), then click Boston College Law Review, Vol. 42, p843, 2001, then click the URL cite listed, then go to Vol 42 No 4 (at the bottom) you will find the following interesting and very informative articles:


“More honored in the Breach: A Historical Perspective of the Permeable IRS Prohibition on Campaigning by Churches” (Patrick L. O’Daniel, More Honored in the Breach: A Historical Perspective of the Permeable IRS Prohibition on Campaigning by Churches, 42 B.C.L. Rev. 733 (2001), http://lawdigitalcommons.bc.edu/bclr/vol42/iss4/)(PDF at http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2181&context=bclr)(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. )


“A Quiet Fatih? Taxes, Politics, and the Privatization of Religion” (Richard W. Garnett, A Quiet Faith? Taxes, Politics, and the Privatization of Religion, 42 B.C.L. Rev. 771 (2001), http://lawdigitalcommons.bc.edu/bclr/vol42/iss4/)(PDF at http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2182&context=bclr)(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.)


“Are Tax ‘Benefits’ for Religious Institutions Constitutionally Dependent on Benefits for Secular Entities?” (Edward A. Zelinsky, Are Tax “Benefits” for Religious Institutions Constitutionally Dependent on Benefits for Secular Entities?, 42 B.C.L. Rev. 805 (2001), http://lawdigitalcommons.bc.edu/bclr/vol42/iss4/)(PDF at http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2183&context=bclr)(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.)


“Churches, Politics, and the Charitable Deduction” (Ellen P. Aprill, Churches, Politics, and the Charitable Contribution Deduction, 42 B.C.L. Rev. 843 (2001), http://lawdigitalcommons.bc.edu/bclr/vol42/iss4/)(PDF at http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2184&context=bclrAbstract: 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.)


“Of Politics and Pulpits: A First Amendment Analysis of IRS Restrictions on the Political Activities of Religious Organizations,” 42 B.C.L. Rev. 931 (2001) http://lawdigitalcommons.bc.edu/bclr/ vol42/iss4/7)(PDF at http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2185&context=bclr)(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.)


“Prohibition in Search of a Rationale: What the Tax Code Prohibits; Why; to What End?” (Deirdre Dessingue, Prohibition in Search of a Rationale: What the Tax Code Prohibits; Why; To What End?, 42 B.C.L. Rev. 903 (2001), http://lawdigitalcommons.bc.edu/bclr/vol42/iss4/6)(PDF at http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2186&context=bclr)(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.)


“Rendering unto Caesar or Electioneering for Caesar? Loss of Church Tax Exemption for Participation in Electoral Politics” (Alan L. Feld, Rendering Unto Caesar or Electioneering for Caesar? Loss of Church Tax Exemption for Participation in Electoral Politics, 42 B.C.L. Rev. 931 (2001), http://lawdigitalcommons.bc.edu/bclr/ vol42/iss4/7)(PDF at http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2187&context=bclr)(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.)


Stephen Schwarz, Limiting Religious Tax Exemptions: When Should the Church Render unto Caesar?, 29 U. FLA. L. REV. 50, (1976).

I. CURRENT TAX TREATMENT OF RELIGIOUS ORGANIZATIONS UNDER THE INTERNAL REVENUE CODE. That section explains Section 501(c)(3), conditions on exemption (partially), tax deductions for charitable contributions, unrelated business income tax, reporting requirments for churches (e.g., churches are not required to file Form 990, etc.). Part I.B. gives and examines some suggested rationale for the (property tax and other) exemptions (e.g., the free exercise clause requires it).

II. LIMITING BY DEFINITION – THE MEANING OF “RELIGIOUS ORGANIZATION” AND “CHURCH” discussed “The ‘Charitable Requirement (a church must not only be, according to the IRC, exclusively religious but must also be a common law charity),” “The Meaning of ‘Religion’ (what activities constitute ‘exclusively religious purposes? Quote: “The history of attempts to draw a dividing line between what is and what is not a religion has been marked by understandable confusiuon.”)’,” “Marginal Religions, (analyzes the Ideal Life case out of Minnesota in which the federal coutt granted the federal tax exemption),” “The Meaning of Church (discusses the background, etc. of 508, and the application to “religious associations” and “religious orders” such as “religious universities”),” [certainly not from a Bible standard. The article points out the activities of the Catholic Church to influence legislation].

II. LIMITTIONS ON POLITICAL ACTIVITIES. “Background of the Limitations (limitations on “prohibition on ‘substantial’ attempts to influence legislation originated in 1934 Act. Limitations on Political Campaign Intervention in 1954 and Johnson’s part in it (this part was inserted only in the basic exemption section and not inserted into the corresponding charitable deduction provision until 15 years later. Judicial Interpretations of the Limitations. The Treasury Regulations. Applying the Limitations  to Churches. The Christian Echoes Case (Virtually all these issues converged in this case). Constitutional Questions (The right/privilege distinction. As a practical matter, the limitations do not really impince upon the free exercise of a group’s religion. The “lobbying” is usually not substantial with little time and money being expended. Etc. p78.). The Conable Bill (churches turned to Congress).

III. THE DISCRIMINATORY RELIGIOUS SCHOOL p84. A. Background (IRS announced new policy in 1967 that tax benefits would be denied to segregated private schools….) B. Applying the Policy to Religious Institutions p86-91 (Bob Jones University case)C. Some Remaining Quetions p91 (the government regulations and required record keeping necessary for religious schools, the developing federal public policy against sex discrimination and its impact on 501c3 institutions). 

IV. THE PROFIT-MAKING RELIGION p92. A. Withdrawal of Exempt Status. B. The Unrelated Business Tax. p94. C. Inurement of Private Gain p103.

CONCUUSION p105. “… The major tools for preserving the vitality of [religious organizations] and assuring the maintenance of a pluralistic society are exemption from income taxation and encouragement of charitable giving through income tax deductions….”

[My notes.  “The 1st Amendment makes clear that “Congress shall make no law respecting the establishment of religion or preventing the free exercise thereof.” See The History of the First Amendment. This Law Review article shows the wisdom of such an Amendment and the chaos that results from making a law regarding religion. Congress ignored the religion clause and passed 501(c)(3) and other laws which clearly violate the First Amendment Religion Clause. When a church willingly places itself under 501c3 or 508, it has a new authority it did not have before, the Federal Government. The church that does so has agreed that the federal government, not the Lord Jesus Christ only, is now their authority for a lot of matters. Such a church as taken herself partially from under the Headship of Christ and the First Amendment (which is a statement of Bible principles), and placed herself partially under the 14th Amendment for many purposes. See Separation of Church and State/God’s Churches: Spiritual or Legal Entities.]



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