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In recent years, a conservative majority of the U.S. Supreme Court,
over vigorous dissents, has developed circumventions to the
Establishment Clause of the First Amendment that allow state
legislatures unabashedly to use public tax dollars increasingly to
aid private elementary and secondary education. This expansive and
innovative legislation provides considerable governmental funds to
support parochial schools and other religiously-affiliated
education providers. That political response to the perceived
declining quality of traditional public schools and the vigorous
school choice movement for alternative educational opportunities
provokes passionate constitutional controversy. Yet, the Court's
recent decision in Arizona Christian School Tuition Organization v.
Winn inappropriately denies taxpayers recourse to challenge these
proliferating tax funding schemes in federal courts. Professors
Winer and Crimm clearly elucidate the complex and controversial
policy, legal, and constitutional issues involved in using tax
expenditures - mechanisms such as exclusions, deductions, and
credits that economically function as government subsidies - to
finance private, religious schooling. The authors argue that
legislatures must take great care in structuring such programs and
set forth various proposals to ameliorate the highly troubling
dissention and divisiveness generated by state aid for religious
education.
In recent years, a conservative majority of the U.S. Supreme Court,
over vigorous dissents, has developed circumventions to the
Establishment Clause of the First Amendment that allow state
legislatures unabashedly to use public tax dollars increasingly to
aid private elementary and secondary education. This expansive and
innovative legislation provides considerable governmental funds to
support parochial schools and other religiously-affiliated
education providers. That political response to the perceived
declining quality of traditional public schools and the vigorous
school choice movement for alternative educational opportunities
provokes passionate constitutional controversy. Yet, the Court's
recent decision in Arizona Christian School Tuition Organization v.
Winn inappropriately denies taxpayers recourse to challenge these
proliferating tax funding schemes in federal courts. Professors
Winer and Crimm clearly elucidate the complex and controversial
policy, legal, and constitutional issues involved in using tax
expenditures - mechanisms such as exclusions, deductions, and
credits that economically function as government subsidies - to
finance private, religious schooling. The authors argue that
legislatures must take great care in structuring such programs and
set forth various proposals to ameliorate the highly troubling
dissention and divisiveness generated by state aid for religious
education.
In Politics, Taxes, and the Pulpit, Nina J. Crimm and Laurence H.
Winer examine the provocative mix of religion, politics, and taxes
involved in the controversy over houses of worship engaging in
electoral political speech. The authors analyze the dilemmas
associated with federal tax subsidies benefiting nonprofit houses
of worship conditioned on their refraining from political campaign
speech. The Supreme Court's recent Citizens United decision
invalidating federal campaign finance restrictions on corporations'
political campaign speech makes the remaining, analogous
restrictive tax laws constraining many nonprofit entities all the
more singular and problematic, particularly for houses of worship.
Crimm and Winer explore the multifaceted constitutional tensions
arising from this legal structure and implicating all fundamental
values embodied in the First Amendment: free speech and free press,
the free exercise of religion, and the avoidance of government
establishment of religion. They also examine the history and
economics of taxation of houses of worship. The authors conclude
that there exists no means of fully resolving the irreconcilable
clashes in a constitutionally permissible and politically and
socially palatable manner. Nonetheless, Crimm and Winer offer
several feasible legislative proposals for reforming tax provisions
that likely will generate considerable debate. If Congress adopts
the proposed reforms, however, the revised system should
substantially ameliorate the disquieting constitutional tensions
induced by the current tax laws and curb the growing emotionally
charged atmosphere about the role of religion in the public sphere.
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