I promised an update from my lawyer friends about why Proposition 8 won’t threaten churches’ tax-exempt status, and here it is (better late than never). There are lots and lots of factors one could consider and tangents one could follow in discussing this, but the short version of why those ads put up by the Mormon church are misleading/wrong is this:
501c3 determination is a federal question, and is left to the IRS. The 1996 Defense of Marriage Act codified into federal law the idea that the federal government can never recognize a same-sex marriage as valid. Therefore, it’d be fantastically difficult for the church’s 501c3 status to be revoked over the fact that they don’t sanctify what are in effect legal nullities in the federal government’s eyes.
In other words:
Bottom line is this: churches that don’t support same-sex marriage absolutely do NOT risk losing their federal income tax-exempt status, which is the biggest benefit of becoming a state-sanctioned nonprofit corporation anyway. (I believe the only way to jeopardize your federal tax exemption, actually, is to engage in campaigning/lobbying activities…so to the extent these Mormons undertake an initiative to oppose same-sex marriage, they may actually be doing more harm to themselves than if they just let same-sex marriage be.)
From what I’ve read online about the “source” for the Mormon ads, it seems the argument that churches might lose their tax-exempt status is actually based on this ban on lobbying/political activism. So the Mormon church, if it is directly funding this campaign, could be risking its status as a nonprofit–but not because it doesn’t want to recognize gay marriage. It could sit back and simply refuse to perform same-sex marriages and it would be completely unaffected by the expansion of civil marriage rights.
2 Comments
October 7, 2008 at 5:39 pm
[...] Update: Summaries of my friends’ legal insights are here. [...]
October 7, 2008 at 5:42 pm
Obviously the Mormons are pouring millions into this campaign. They may get away with it, but at some point in the near future it seems likely to me that it will be invoked in a tax law case and the IRS will officially consider it.