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More About This Title Tax-Exempt Organizations and Constitutional Law +Website: Nonprofit Law as Shaped by the U.S. Supreme Court
English
Although the U.S. Constitution does not make any reference to nonprofit organizations—not surprising, since the Constitution is not a framework for the structure of the entirety of U.S. society—the Supreme Court has effusively shaped nonprofit law. Now, leading nonprofit law expert Bruce R. Hopkins discusses how tax-exempt organizations, including educational, religious, and healthcare institutions, are directly affected by constitutional law decisions and other pronouncements from the U.S. Supreme Court.
Written by one of the country's leading legal authorities on tax-exempt organizationsProvides a comprehensive, authoritative examination of constitutional law principles and their implications for tax-exempt organizationsIncludes coverage of the Supreme Court's perspective on nonprofit organizations and tax exemption, applicability of the Establishment and Free Exercise Clauses to nonprofit religious organizations, the import of Free Speech principles in the charitable fundraising context, the constitutionality of the individual health insurance mandate, and moreOther titles by Bruce R. Hopkins: The Law of Tax-Exempt Organizations, Tenth Edition, The Law of Fundraising, Fourth Edition, and The Tax Law of Charitable Giving, Fourth EditionShould religious organizations be exempt from taxation? Should religious groups get tax exemptions not available to other organizations? Are state charitable solicitation acts constitutional? Is the health insurance mandate constitutional? Is the Affordable Care Act subject to legal challenge at this time? How many ways has the Supreme Court shaped nonprofit law? Get answers to these questions and many more from Tax-Exempt Organizations and Constitutional Law.
English
BRUCE R. HOPKINS is a senior partner with the firm Polsinelli Shughart PC. He is also the author of more than twenty-eight books, including The Law of Tax-Exempt Organizations, Tenth Edition, Planning Guide for the Law of Tax-Exempt Organizations, Nonprofit Law Made Easy, and The Tax Law of Charitable Giving, Fourth Edition, as well as the monthly newsletter Bruce R. Hopkins' Nonprofit Counsel, all published by Wiley.
English
About the Author xiii
Preface xv
Book Citations xix
CHAPTER 1 Introduction to the U.S. Constitution and Nonprofit Law 1
§ 1.1 Overview of Relevant Portions of the Constitution 1
(a) Relevant Portions of the Original Constitution 1
(b) Relevant Portions of Amendments 2
§ 1.2 Role of the Supreme Court and Basic Principles 2
(a) Principle of Separation of Powers 2
(b) Role of the Judiciary 3
(c) Role of the Supreme Court 7
(d) Policy of Stare Decisis 10
(e) Facial and As Applied Challenges 11
(f) Congressional Findings 12
(g) Severability 15
§ 1.3 Concept of the Nonprofit Organization 18
§ 1.4 Doctrine of Private Inurement 18
§ 1.5 The Supreme Court’s Definition of Nonprofit Organization 19
§ 1.6 The Supreme Court’s View as to Eligibility for Tax Exemption 20
§ 1.7 The Supreme Court’s Rationale for Tax Exemption 21
§ 1.8 Public Policy Doctrine 22
(a) Basic Principles 22
(b) Race-Based Discrimination 23
(c) Gender-Based Discrimination 24
(d) Affirmative Action Principles 25
§ 1.9 Freedom of Association Principle 28
§ 1.10 The Commerciality Doctrine 30
§ 1.11 Constitutionality of Lobbying Limitation 32
§ 1.12 Tax Exemption as Government Subsidy 37
(a) Religious Organizations Real Estate Tax Exemption Case 40
(b) Limitation on Lobbying Case 42
(c) Racially Discriminatory School Case 42
(d) Commerce Clause Case 43
(e) Establishment Clause Standing Case 44
(f) Other Litigation as to Subsidy Issue 45
(g) Tax Expenditures 48
CHAPTER 2 Nonprofit Organizations and the Religion Clauses 49
§ 2.1 Historical Perspective 50
§ 2.2 Overview of Religion Clauses 50
§ 2.3 Free Exercise Clause 53
§ 2.4 Establishment Clause 54
§ 2.5 Establishment Clause Standards 56
(a) Lemon Tests 57
(b) Endorsement Test 62
§ 2.6 Tax Exemption for Religious and Other Organizations 64
(a) Tax Exemption in General 64
(b) Tax Exemption for Religion 68
(c) Mooting of Tax Refund Cases 71
§ 2.7 Government Assistance to Religious Schools 72
§ 2.8 Government Assistance to Other Religious Activities 79
§ 2.9 Establishment Clause and Religious Symbols 79
§ 2.10 Disputes over Church Property 81
§ 2.11 Employment Discrimination Laws and Ministerial Exception 82
(a) Basic Principles 83
(b) Definition of Minister 86
CHAPTER 3 Nonprofit Organizations and the Commerce Clause Generally 89
§ 3.1 Historical Perspective 89
§ 3.2 Dormant Commerce Clause Basic Principles 90
§ 3.3 Facts of Nonprofit Organization Case 93
§ 3.4 Majority Opinion in Nonprofit Organization Case 93
(a) Summary of Opinion 93
(b) Focus on Charitable Tax Exemptions 96
(c) Subsidy Concept Revisited 101
§ 3.5 Dissents 103
(a) Second Dissent 103
(b) First Dissent 106
CHAPTER 4 Health Care Reform Law and the Commerce Clause 111
§ 4.1 Commerce Clause in General 112
§ 4.2 Necessary and Proper Clause 115
(a) Basic Principles 115
(b) Civil-Commitment Statute Case 116
§ 4.3 Analytical Framework Established by the Court 118
(a) Wheat Farmer Case 119
(b) Firearms Possession Case 120
(c) Gender-Motivated Violence Case 120
(d) Marijuana Consumption Case 122
(e) Perspective 122
§ 4.4 Overview of Health Reform Law 123
§ 4.5 District Courts, Commerce Clause, and the Individual Mandate 124
§ 4.6 District Courts, Necessary and Proper Clause, and the Individual Mandate 130
§ 4.7 Appellate Courts and the Individual Mandate 132
(a) Sixth Circuit Opinion 132
(b) Eleventh Circuit Opinion 136
(c) District of Columbia Circuit Opinion 142
§ 4.8 The Supreme Court and the Individual Mandate 144
CHAPTER 5 Federal Election Campaign Laws 147
§ 5.1 Overview of Federal Election Law 147
§ 5.2 Federal Election Commission 148
§ 5.3 Free Speech Principles Overview 150
(a) Free Speech Principles in Political Context 151
(b) Unconstitutionality of Preferences 152
(c) Free Speech and Corporations 153
(d) Contribution and Expenditure Limitations 154
§ 5.4 Political Committees 157
§ 5.5 Limitations on Contributions 158
§ 5.6 Corporate Independent Expenditures 159
§ 5.7 Soft Money Restrictions 164
§ 5.8 Disclosure Requirements 167
§ 5.9 Coordinated Communications and Expenditures 169
§ 5.10 Reporting of Independent Expenditures 169
§ 5.11 Establishment and Maintenance of Segregated Funds 170
CHAPTER 6 Constitutional Law as Applied to Nonprofits: The State Action Doctrine 173
§ 6.1 Basic Principles 173
§ 6.2 Discriminatory Restaurant Case 175
§ 6.3 Discriminatory Fraternal Organization Case 178
§ 6.4 Coach Suspension Case 182
§ 6.5 Athletic Association Case 185
§ 6.6 Social and Fraternal Organizations 187
§ 6.7 Other Court Decisions 195
§ 6.8 Statutory Law 197
CHAPTER 7 Charitable Fundraising Law 199
§ 7.1 Overview of State Charitable Solicitation Acts 199
(a) Definition of Charitable 199
(b) Definition of Solicitation 200
(c) Definition of Membership 201
(d) Other Definitions 201
(e) Regulation of Charitable Organizations 202
(f) Regulation of Professional Fundraisers 202
(g) Regulation of Solicitors 203
(h) Regulation of Commercial Co-Venturers 204
(i) Solicitation Notice Requirements 205
(j) Prohibited Acts 205
(k) Contracts 206
(l) Availability of Records 206
§ 7.2 Exemptions from Solicitation Acts 206
(a) Churches 207
(b) Other Religious Organizations 208
(c) Educational Institutions 208
(d) Libraries 209
(e) Museums 209
(f) Health Care Institutions 209
(g) Other Health Care Provider Organizations 209
(h) Membership Organizations 209
(i) Small Solicitations 210
(j) Named Organizations 210
§ 7.3 States’ Police Power 210
§ 7.4 Fundraising as Free Speech 215
(a) State of Law before 1980 Supreme Court Decision 216
(b) Free Speech Principles in Fundraising Context 217
(c) 1980 Opinion 218
(d) 1984 Opinion 220
(e) 1988 Opinion 223
(f) Dissents 225
(g) State of Law Subsequent to Three Supreme Court Decisions 227
(h) Airport Terminal Solicitations 236
(i) Door-to-Door Advocacy 241
(j) Outer Boundaries of Free Speech Doctrine 243
(k) Interplay between Fundraising Regulation and Fraud 245
§ 7.5 Due Process Rights 251
§ 7.6 Equal Protection Rights 253
§ 7.7 Delegation of Legislative Authority 256
§ 7.8 Treatment of Religious Organizations 259
§ 7.9 Other Constitutional Law Issues 266
CHAPTER 8 The Court’s Influence on Other Nonprofit Law 267
§ 8.1 Judicial Deference and Tax Regulations 267
§ 8.2 Congress’s Power to Tax 269
§ 8.3 Association Law 270
(a) Line of Business Requirement 271
(b) Concept of Line of Business 271
(c) Supreme Court Pronouncement 272
§ 8.4 Unrelated Business Law 274
(a) Trade or Business Requirement 274
(b) Substantially Related Test 277
§ 8.5 Meaning of Gift 278
§ 8.6 Scholarship Law 281
(a) Basic Principles 281
(b) Supreme Court Gloss on Scholarship Law 284
§ 8.7 Nonprofit Governance 285
§ 8.8 Hate Protests 286
§ 8.9 Gifts of Monuments to Government 287
§ 8.10 Medical Residents and Employment Taxes 289
§ 8.11 Third-Party Litigation 290
§ 8.12 Standing to Sue 294
(a) Basic Principles 294
(b) Third-Party Litigation Again 295
(c) Focus on Tax Credits 298
(d) Standing and the Care Act 304
(e) States and Standing 306
§ 8.13 Anti-Injunction Act 308
(a) Basic Principles 308
(b) Individual Mandate Context 309
About the Companion Website 311
Index 313
