Don’t bring immanent evidence to a transcendent argument.
Category: Law
Voir dire
Voir dire, from Norman French, is pronounced “jury selection” by normal people, but I had always stayed one step ahead of the law and never seen it first hand.
The Misguided Quest for a Common Moral Framework
The Mormon Newsroom just posted a new think-y piece titled “The Quest for a Common Moral Framework.” A few years back the Newsroom posted a number of these reflective essays, such as “Approaching Mormon Doctrine“, but not so much recently. So this one is worth taking a look at. It seems like a spinoff from the intensive Religious Freedom initiative.
20th Century LDS Thought on Sexual Assault: Some Context
The Salt Lake Tribune recently published an article called “How outdated Mormon teachings may be aiding and abetting ‘rape culture.’” While I am also concerned about ways in which Mormon culture may encourage rape culture (see here and here and here), I want to push back against one portion of the article.
Mormonism at the Scopes Trial
I read Edward J. Larson’s Summer for the Gods: The Scopes Trial and America’s Continuing Debate Over Science and Religion (Harvard Univ. Press, 1997) earlier this month, and was surprised to see the Book of Mormon appear in one of Clarence Darrow’s arguments to the court. Funny how little mention there is of the Scopes Trial in LDS discourse, given how often evolution seems to come up. I have some ideas on that. But first the interesting arguments made to the court by Darrow.
Same-Sex Marriage Bans and Tax
The District of Utah has had a busy week. As I’m sure you heard (and if you haven’t, you ought to read Kaimi’s post first), Utah’s ban on same-sex marriage has been struck down as unconstitutional. A week ago, in the wake of the decision that didn’t actually legalize polygamy, I looked at the potential tax consequences of that decision and, fairly anti-climatically, determined that there were none. Plenty of electrons will be spilled going over this decision but, again, I suspect that the tax consequences will be underexplored.
Gay Polygamy in Utah!
By now you’ve heard the news. A federal judge in Utah just ruled that the state’s ban on same-sex marriage was unconstitutional. This follow on last week’s ruling, from a different judge, that portions of Utah’s polygamy statute were also unconstitutional. What does it mean? Obviously, it means the advent of gay polygamy!! It won’t stop until everyone is married to everyone else, in one giant gay-polygamous-mega-wedding. Let the festivities begin! Okay, maybe not. Let’s go through the rulings, piece by piece, to see what they say, and what their effects may be.
Decriminalizing Polygamy (and, of Course, Tax)
On Friday, December 13, the Judge Waddoups, a district court judge in the District of Utah, held that Utah’s criminalization of polygamy was unconstitutional. Partly, anyway.
More on that in a minute. I suspect that this opinion will reverberate throughout the blogosphere and the mainstream media, with the reporting displaying various levels of accuracy. The question I suspect won’t get much play, though, is, what are the tax consequences of this decision?
Happy(?) Repeal Day!
The Twitters tell me that 80 years ago today, Utah became the 36th state to ratify the 21st Amendment, thus ending Prohibition.
Whatever you think about Prohibition, it’s probably worth noting the Pres. Grant was not a fan of its end. In fact, he addressed the end of Prohibition—and Utah’s role in ending it—at General Conference in 1934. Here’s an (annotated by me) excerpt of what he said:
Money for Nothing and the Housing for Free
On Thursday, November 21, the district court of the Western District of Wisconsin declared (part of) the parsonage exemption—a special tax provision for certain religious persons—unconstitutional.
Invite the IRS to Your Family Reunion
Over at Keepaptichinin, Amy Tanner Theriot has a wonderful post talking about family associations, and providing some guidelines for how to put together a successful association. In the post, she mentions that family associations can qualify as 501(c)(3) tax-exempt entities. At the mention of Code sections (and revenue rulings!), my ears perk up, and I thought I’d give a little more information about the tax side of such organizations. But before you read my post, you need to read Amy’s. Because everything I know about family associations I learned reading her post, then doing a little Westlaw research. Because of that, basically nothing I write here will mean much unless you’re familiar with what Amy wrote.
An Overview of LDS Involvement in the Proposition 8 Campaign
I’ve just posted my article, ‘The Divine Institution of Marriage’: An Overview of LDS Involvement in the Proposition 8 Campaign, to SSRN. The article is largely descriptive, setting out in some detail the church’s actions and statements relating to Proposition 8. It chronicles a significant amount of factual material that has not been discussed at all in the existing legal literature. It may be especially relevant to people who have an interest in Proposition 8, same-sex marriage issues, gay rights issues generally, or LDS church issues generally. The full abstract is as follows: “The Divine Institution of Marriage”: An Overview of LDS Involvement in the Proposition 8 Campaign The Church of Jesus Christ of Latter-day Saints (LDS or Mormon church) was heavily involved in the passage of Proposition 8 in California in November 2008, which restricted marriages recognized under state law to those between a man and a woman (as construed by the California Supreme Court, it prospectively denied legal sanction for same-sex marriages while not interfering with such marriages previously recognized under state law). Church members participated in the Proposition 8 campaign a variety of ways, including extensive fundraising and various publicity efforts such as door-to-door get-out-the-word campaigns. Statements by the church and its leaders were a central part of the LDS Proposition 8 strategy. The church issued three official statements on Proposition 8, which combined theological and religious content with specific political, sociological, and legal claims. For instance,…
An April 15th Post
Facebook Memes and the Property Tax
There is, I’ve been told, a Facebook meme going around, juxtaposing a decaying house and the San Diego temple to support the argument that churches should not be exempt from taxation.
And, like Facebook memes everywhere, this one is dumb. Dumb primarily because it is a tautology that doesn’t say anything. Because of course a tax-exempt organization does not pay taxes that a non-exempt individual pays. That’s pretty much the definition of tax exemption.
Of course, saying that a Facebook meme is dumb and tautological makes for a pretty short and boring post. Far more interesting, imho, is to take seriously the point that the people spreading the picture are trying to make, and complicating that rhetorical picture a little bit.
Moroni Torgan, Yeah Samaké, and Political Neutrality
As a result of its political neutrality policy, the Church is not going to endorse Mitt Romney in his bid to become President (or, for that matter, Harry Reid in his bid to be reelected to the Senate). There are probably a number of reasons for the Church’s desire to avoid endorsing a candidate but, as I’ve said previously, one reason may well be the tax consequences of such an endorsement. (Short refresher: technically, the IRS could revoke the Church’s tax exemption, meaning the Church would owe taxes on all of its income other than donations, and that Church members who paid tithing or other offerings could no longer deduct those donations in calculating their taxes.)
Taxing Churches: A Response
Oh no—somebody on the Internet is wrong while I’m on vacation! But duty calls. Recently, Ryan Cragun, a sociology professor, along with students Stephanie Yeager and Desmond Vega, argued that the government subsidizes religion by about $71 billion a year. He thinks this is wrong, and that religions should pay their fair share. I have no problem with his making this argument—tax exemption costs the government significant revenue (though his $71 billion is based on really, really poor assumptions—more on that later), and should be examined carefully and critically. But Prof. Cragun’s analysis is not the careful and critical examination that the tax treatment of churches deserves. His piece has a number of significant problems. I’m not going to address all of the problems, including the fact that he appears unaware that there is an extensive academic literature that explores the place of a tax exemption for churches,[fn1] but I am going to address a handful of his assertions. In the end, though, what bothers me most about Cragun’s piece is that he’s taken an important topic and made it into a polemic. Those who agree with him now have “facts” to bandy about, while those opposed have a specious argument they can treat as an easily-dismissed straw man, and can ignore engaging in a valuable tax policy discussion. Before I get into my specific criticisms, though, I want to make a couple points upfront. First, although I find lots…
Polygamy 2012
Once upon a time, family law was a marginal legal topic that didn’t make many headlines the way constitutional law or criminal law so often do. But gay marriage and Prop 8 have propelled family law and marriage to the legal center stage. In an odd parallel development, “the family” has, over the last few years, moved to the center of LDS doctrine and practice as well, with “The Family: A Proclamation to the World” being the most visible evidence of that change. We are living in an intersecting perfect storm of changing family law, family doctrine, and family practice. So we should learn some family law before the cyclone hits. Let’s start with a current case.
Taxing(?) City Creek Reserve, Inc.
The other day, Nate responded to many of Jana Riess’s criticisms of the City Creek mall in Salt Lake. As I read her piece, one sentence jumped out at me.
Taxing the United Order
The United Order appears (for now, at least) to be a relic of the 19th century; since them, the mainstream Mormon church hasn’t attempted to institute any large-scale communal economic structure based on Acts 2. And, frankly, I don’t have any reason to think that it will in the 21st century; the Law of Consecration seems to be something different than economic communalism (though economic communalism fits within the Law of Consecration).
Mitt Romney’s Tithing Problem (?)
ABC broke the news: Mitt Romney has donated millions of dollars worth of stock to the Mormon church. SEC filings disclose that a Bain partner donated $1.9 million of Burger King stock to the Church; in addition, the Church has received stock of other Bain holdings, including Domino’s, DDi, Innophos, and the parent company of AMC Theaters.
But why? Why would Romney give the Church equity stakes in bad fast-food chains, second-rate pizza chains, and other such holdings?
Politics and Members of the Church
The Catholic church, that is.
How Are You Celebrating?
No, today isn’t a national holiday. It’s not any particular religious festival. We’re more than a week away from Halloween, a month from Thanksgiving, and a couple months from Christmas. The only reason you have today off (assuming you have today off) is because today is Saturday. And yet . . . On October 22, 1986, President Ronald Reagan signed into law the Tax Reform Act of 1986, a bipartisan bill. That law, signed 25 years ago today, was the last fundamental tax reform in which the U.S. has engaged. Among other things, it broadened the tax base, reduced the number of tax brackets, and reduced the highest tax bracket from 50 percent to 28 percent. It vastly simplified the monster that the tax code had become. Since 1986, of course, the number of tax brackets has crept up, top marginal rates have crept up, and plenty of loopholes and special exceptions have been reintroduced into the tax law; we are arguable at a point where we again need to fundamentally rethink the tax law. The politics of the Tax Reform Act of 1986 are absolutely fascinating. If you want to peer into the political machinations of D.C., you could do worse than reading Birnbaum and Murray’s Showdown at Gucci Gulch, a comprehensive (and fascinating) look at the people who shepherded tax reform through the process. If you don’t have time for the book,[fn1] there are a couple great articles…
Background: Elder Oaks and the Charitable Deduction
Yesterday, as Marc pointed out, Elder Oaks testified in front of the Senate Finance Committee in favor of the deduction for charitable giving. He argued that the charitable deduction is vital to the nation’s welfare. Why, though, these hearings on the charitable deduction? Is it under attack? In case you haven’t been following the politics of tax and budgeting recently (of course, who hasn’t?), I thought I’d provide a little background to the hearing. The Deduction for Charitable Donations The charitable deduction is an itemized deduction (more on that later). It’s one of the older deductions in the tax law, though its run is not coterminous with the tax law. The modern federal income tax was enacted in 1913, but the charitable deduction didn’t manage to get enacted until 1917. And what is the relevance of a deduction? Basically, a deduction reduces your tax liability by the amount of your deduction times your marginal tax rate. So, for example, if you pay taxes at a marginal rate of 35%, and you get a charitable (or any other) deduction for $100, you will pay $35 less in taxes than you would have without the deduction. If, on the other hand, you pay taxes at a 20% marginal rate, your tax bill would be reduced by $20. Itemization And what is an “itemized” deduction? In calculating your tax liability, there are some deductions you can basically always take (these are called above-the-line…
Elder Oaks Testifying Before Congress Today
For those interested, Elder Dallin H. Oaks is testifying right now before the Senate Finance Committee on tax reform, specifically incentives for charitable giving. He is testifying at the request of Senator Hatch.
Free Your Pulpit
On Sunday, as we luxuriated in General Conference (however we followed it), we missed an annual tradition: Pulpit Freedom Sunday.[fn1] A quick background on Pulpit Freedom Sunday: on July 2, 1954, Lyndon Johnson proposed that Section 501(c)(3) (the Internal Revenue Code section that exempts, among other things, churches, universities, and the NCAA from tax) be amended to prevent exempt organizations from campaigning on behalf of or against candidates for office. [fn2] There’s no legislative history, and, in fact, no record of the voice vote on the amendment. But it passed. Note, though, that the prohibition wasn’t particularly aimed at churches; in fact, most people seem to think Sen. Johnson was worried that (non-religious) nonprofits were trying to unseat him. Since 2008, the Alliance Defense Fund has sponsored Pulpit Freedom Sunday. The basic idea is that pastors flout the prohibition, deliberately supporting or opposing a candidate for office in their sermons. Which they record. And send to the I.R.S. The idea seems to be to “bait” the I.R.S. into attempting to revoke at least one church’s tax exemption, then challenge the revocation to the Supreme Court, in an effort to have the prohibition overturned as unconstitutional. Will the I.R.S. take the bait? Probably not. In 2006, the I.R.S. released a study it had done of its 2004 Political Activities Compliance Initiative. Basically, it looked at 82 cases in which it the non-profit allegedly violated the prohibition.[fn3] It determined that 18 of the…
The Church and Taxes
The Church cares about taxes.[fn1] It doesn’t really seem to care about the details of tax policy, of course. I’ve never seen the Church weigh in on the appropriate tax rate, tax base, or even the appropriate type(s) of tax (e.g., an income or consumption tax, a retail sales tax or a VAT, or whatever) a government should impose.[fn2] But still, it makes explicit and implicit nods that indicate that, ultimately, it cares both about its tax position and that of its members. The Church and (Its) Taxes Like (essentially) every other church in the U.S., the LDS church is exempt from taxation. Not only that, certain U.S. taxpayers who donate to the Church[fn3] can deduct their donations. And the Church is careful to protect its tax exemption. It explicitly does not endorse or oppose candidates for office.[fn4] Church property cannot be used for doing things that would endanger the Church’s tax exemption. It organizes its for-profit businesses as separate, non-exempt corporations.[fn5] So the Church wants to maintain its exemption. Note, though, that the exemption benefits not only the Church, which doesn’t have to pay taxes, but its (U.S., but see below) members, who might get a deduction for their donations. Note, too, that even if the Church lost its exemption, it probably wouldn’t be taxable on donations it received; they would likely (though not unquestionably) be treated as non-taxable gifts. The Church and (Members’) Taxes (Note, here, that I don’t…
Desert and a Just Society
The 2010 poverty level in the U.S., we learned on Tuesday, is the highest it has been since 1993. In 2010, about one in six Americans lived below the poverty line.[fn1] In June, 14.6% of Americans received food stamps.[fn2] To some extent, the high poverty rate is probably related to the high unemployment rate, which was 9.1% in August. I throw out all of these numbers to suggest that, as a society, we have a problem. That problem needs to be fixed. And we, as Mormons, undoubtedly have something that we can bring to the discussion of how to fix it. As I think about how we can fix poverty, though, I’m hugely influenced by Ron Haskins and Isabel Sawhill’s book Creating an Opportunity Society.[fn3] Haskins and Sawhill point out that Americans care about desert.[fn4] That is, as Americans, we want those who have the ability to work for a living. And I’m interested in this idea of desert. Because I’m not convinced that we have a religious dispensation to withhold assistance from those don’t somehow “deserve” our help.[fn5] Still, as a practical matter, irrespective of whether we have religious dispensation or not, we care about desert. And no social program that is blind to to recipients’ refusal to work is going to go anywhere. As a pragmatist, then, I have to confront desert. But, as we consider how to provide aid to those to whom we have the political…
Mission Finances, part 3
(Note: this is the fourth part of a several-part series. You can read previous installments here, here, and here.) Quick review: prior to November 1990, missionaries and their families paid the actual cost of their missions. Moreover, parents would send money directly to their sons and daughters, with no intermediation from the Church. In May 1990, the U.S. Supreme Court ruled in Davis v. United States that such payments were not tax-deductible, notwithstanding language in the Internal Revenue Code that contributions made “to or for the use of” the Church would be deductible. In November 1990, the Church announced that, going forward, it was equalizing the costs of missions; all (U.S. and Canadian, at least) missionaries would pay a set monthly amount into the Church’s mission fund; the Church would then disperse to missionaries the amount of money they needed. While there’s no indication that the decision in Davis caused the Church to change its policy, I wouldn’t be shocked if the Davis decision at least affected the timing of the change.[fn1] The Church’s Amicus Brief: The Church was not a party to the Davis litigation. It did, however, have an interest in the outcome. As such, it filed an amicus brief with the Supreme Court.[fn2] The Church’s overall position is that “[n]on-deductibility [of the payments made by parents to their missionary children] would force the Church to choose between preserving the beneficial characteristics of its present program and sacrificing…
Mission Finances, Part 2 [edited 8/26/2011]
[Note: this is the third (yes, third) part of a many-part series. You can read Part 1 here and Part 1.5 here.] [Note #2: A friend points out that I left some information out of this post that is helpful in understanding what I’m talking about. That information is in Part 1, but it’s been a long time since I posted Part 1, so I’m adding some clarifying details in bold. Thanks, SG.] Pop quiz: when you think “Mormons” and “US Supreme Court,” what do you think? (The correct answer is, of course, Reynolds.[fn1]) For many of us, though, another less-known case impacts our lives, at least while we’re missionaries or while we’re supporting missionaries, nearly as much: Davis v. United States. Brother and Sister Davis had at least two sons, Benjamin and Cecil. In 1979, Cecil was called to the New York Mission, while in 1980, Cecil was called to the New Zealand-Cook Island Mission. In 1981, the Davis paid $4,135 for Benjamin’s mission and $1,518 for Cecil’s.[fn2] And when they filed their tax return, Brother and Sister Davis took a deduction for the $ 5,653 that they donated toward their sons’ missions. Just like today. Except. Except that, in addition to paying for the actual costs of a mission, parents and others who supported missionaries gave the money directly to the missionaries: in the case of the Davises, they transferred the money into their sons’ checking accounts. So wait:…
What If President Monson Endorsed Mitt Romney?
In his talk at the close of the April 2008 General Conference, President Monson talked about the blessing we had received, both as members of the Church and, specifically, over the course of the conference. He ended his talk with counsel: parents are to love and cherish their children, youth are to keep the commandments, those who can attend the temple should, and we should all be aware of each other’s needs. But what if, in closing his remarks,[fn1] President Monson had said, “My dear brothers and sisters, I feel strongly that Mitt Romney is the best person to lead our country. I encourage each of you to campaign on his behalf and to donate to his campaign. We have also established the Perpetual Mitt Fund, with an initial investment from tithing dollars for $1 million in order. This fund will go toward his election and, if any money is left over, it will be transferred to Harry Reid’s next campaign. If you would like to support the PMF, you can use the donation slips. In the ‘Other’ category, please write ‘PMF.’”[fn2] There was, unsurprisingly, an immediate backlash. Dozens of people sent letters to the I.R.S., demanding that it revoke the LDS church’s tax exemption. In its review, the I.R.S. determines that the Church’s actions were in flagrant violation of the anti-campaigning rules. Sick of tax-exempts pushing the envelope, the I.R.S. decides to make an example of the Church and…