Wednesday, May 13, 2009

Mormons, Prop 8, and 501(c)(3)

Associate law professor at Florida State University's School of Law who is currently a visiting professor at Georgetown University's Law Center; Brian Galle, wrote an interesting essay on the Mormon Church's involvement in Prop 8 and whether it should affect the Church's 501(c)(3) tax exempt status. Galle wrote the article for Northwestern University's law review.

After Proposition 8 was passed, people from all over the country voiced their opinion as to whether or not the LDS Church crossed the line for its political involvement and if that involvement should affect its tax status. Among the many articles that I'd read on the subject, none went into a detailed legal analysis of the situation, they were more just people's opinion on the situation. However, Galle did a good job of analyzing the pertinent law's and how they applied to the LDS Church's involvement in Prop 8.

I do however disagree with Galle's conclusion that if the Church were taken to court the outcome of the case would be uncertain. Galle concluded that "Under existing precedent, the outcome of any challenge to the LDS Church’s intervention in Proposition 8 is uncertain. Most caselaw has looked to the cost, and perhaps time and effort, devoted to lobbying, and compared that to the organization’s overall size. By that standard, the Church’s vast size likely shields it from any serious threat of revocation. But that method has serious problems. It fails to consider the true economic value of political endorsements by influential organizations with extensive and time-tested lists of phone numbers and e-mail addresses. And more importantly, it neglects the fact that under either of the most persuasive explanations for the very existence of the lobbying limits, it makes no sense to permit multi-million dollar expenditures simply because a charity itself is large.

Galle continues "Even under my proposed methodology, the outcome of any challenge to the Church’s exemption is hard to predict. We do not know how the market would value the use of the Church’s mailing lists nor do we know the value of the staff time and other costs the Church invested. Perhaps these sums are modest, even in absolute terms. My point here is only that if these figures prove to be large—several million dollars, say—then there ought to be a serious question whether revocation is appropriate. The fact that several million dollars is a tiny fraction of the Church’s budget should not by itself render the expenditure permissible".

I disagree with Galle's conclusion that a legal challenge to the LDS Church's involvement in Under any circumstance the LDS Church should not lose it's tax exempt status for its participation in Prop 8. The Mormon Church has been around since 1830, and a relatively short push for Proposition 8 cannot be viewed as a move a Church into the realm of a political organization. As Galle points out the LDS Church's involvement was really quite minimal; it sent out a letter, asked members to make phone calls, donate time, money, and put on a video conference asking members to support traditional families. The money paid to support Prop 8 was paid by the members of the Church not the Church itself. Why should Mormons not be able to support political movements they believe in?

If the Mormon Church should lose its tax exempt status then so should virtually every other church in the country because almost all churches at one point or another voice their opinion on political matters and ask their members to become involved. Compare the LDS Church's involvement in Proposition 8 to constant political chatter of people like President Obama's Pastor Jeremiah Wright. Under current law, the Mormon Church's tax exempt status cannot seriously be questioned.


  1. Kaimi Wegner of Times & Seasons gets a shout-out in the first foot note.

  2. Actually, the LDS (Mormon) Church's involvement was greater than stated. Review for a range of articles that show the extent the LDS Church's involvement in Proposition 8.

  3. Professor Galle correctly points out that many forms of support, such as contact lists or endorsements, have potentially large economic values. But the current § 501(h) regulations don't apply to churches because it would be virtually impossible to calculate the commercial value. Thankfully, religious organizations don't endorse products or partner with credit card companies. Galle's suggestion that similar endeavors at universities could provide a benchmark is an interesting proposal, but not very realistic, and he acknowledges that. Universities are significantly different entities than religious institutions (even if fans in the SEC practice NCAA football worship).

    Secondly, as a mater of statutory interpretation, I think Galle's attempt at reading into the policy rationale behind lobbying laws is weak and designed to favor his conclusion. He freely admits that there is no explicit goal in the lobbying restrictions of § 501(h). Footnote 32 also acknowledges conflicting conclusions that can be drawn from the legislative history. What Galle doesn't say is that the Mormon Church's contributions are clearly permitted under current laws. Even if the laws were to change and Congress were to adopt Professor Galle's proposed methodology, he admits that the outcome would be uncertain. So he basically wrote a paper for nothing, piggybacking an inconclusive analysis on a hot-topic issue.

    Galle is right that much of the current tax regime doesn't make sense. But they are often incomplete because no coherent alternative can be proposed, including those of Professor Galle. I also think he fails to account for the fact that religious organizations themselves have First Amendment rights, and that current lobbying laws accommodate those rights.

  4. Brace yourselves. The onslaught has begun. The factions that were once separated have united to bring LDS to task for illegitimately participating in the political process.

    The LDS' blatant disregard of the separation of church and state make a great many members of the church guilty of a number of crimes.

    We intend to exhaust all options in bring LDS to justice.