Posts Tagged ‘taxes’

New on LGBT issues and the law: religious tax exemptions, Title VII coverage

On Thursday evening, “at a CNN candidate forum on gay rights, CNN’s Don Lemon asked Democratic candidate Beto O’Rourke: ‘religious institutions like colleges, churches, charities. Should they lose their tax-exempt status if they oppose same-sex marriage?’ O’Rourke answered ‘Yes’.” But O’Rourke’s dead wrong as a matter of politics, policy, and law, as I explain Friday post at Cato. I call his proposal “illiberal, anti-pluralist, inflammatory — and unconstitutional under current Supreme Court precedent,” and that’s just getting started. More: Bonnie Kristian/The Week; Charlie Nash, Mediaite (O’Rourke’s comments blasted by writers from across ideological spectrum). And: Dale Carpenter (principle of viewpoint neutrality in tax exemption law was vital to early gay rights movement; arguments O’Rourke uses against conservative Christians now are the arguments used against gays then).

And I’ve also published a new piece at The Bulwark on the legal arguments about whether the 1964 Civil Rights Act’s reference to “sex” should be construed to include sexual orientation and gender identity, a move I call “surprise plain meaning” and which is by no means unprecedented in the Supreme Court’s handling of employment discrimination law. More broadly, I examine and reject the notion that for the Court to ponder these questions is to put anyone’s “humanity up for debate.” Earlier on Bostock, Altitude Express, and Harris Funeral Home here, here, here, and here, and more from Dale Carpenter and Scott Shackford. Scott Greenfield responds.

For those keeping track, this makes three pieces I’ve published in two days, counting yesterday’s Wall Street Journal piece, all related to sexual orientation and the law although unrelated otherwise.

Wealth registries and exit taxes

Not scary or intrusive at all: presidential candidate Sen. Bernie Sanders (I-Vt.) has called for enacting a “national wealth registry,” the better to enforce future schemes of taxation, confiscation, and restraints on expatriation [Brittany De Lea, Fox Business; related, Chris Edwards, Cato; Emily Ekins on opinion poll] And the steep “exit tax” that Sen. Elizabeth Warren (D-Mass.) and Sanders propose to slap on wealthy individuals who depart the U.S., of up to 40 and 60 percent respectively, did not sound better in the original German [Ira Stoll; earlier]

P.S.: On the constitutionality angle, note that the Competitive Enterprise Institute has just filed a lawsuit on behalf of a couple challenging the constitutionality of a provision of the 2017 tax reform law known as the Mandatory Repatriation Tax. Counsel Andrew Grossman, quoted in the CEI press release, stated:

The Mandatory Repatriation Tax is unconstitutional for the same reason that a wealth tax would be. The Constitution does not permit Congress to simply declare money that it wants to tax to be income and then demand its cut. And the courts have never permitted retroactive taxation reaching back anywhere near the 30 years, as the Mandatory Repatriation Tax does. The details of the tax may be complicated, but the constitutional violations are clear.

How the tax code protects controversial opinion

Eugene Volokh thanks a House panel for “inviting me to testify about ‘How the Tax Code Subsidizes Hate.’ The Tax Code indeed subsidizes hate, just as it subsidizes Socialism, Satanism, and a wide variety of dangerous and offensive ideas.”

In particular, a long line of court opinions has made clear that 1) “tax exemptions can’t be denied based on the viewpoint that a group communicates,” 2) “excluding speech that manifests or promotes ‘hate’ is forbidden viewpoint discrimination”, 3) the law “may treat groups differently based on their actions, but not based on the views they express” (emphasis added) and that 4) while groups may be denied tax exemptions “for deliberately engaging in speech that falls within one of the few narrow exceptions to the First Amendment, such as true threats of criminal attack, or incitement intended to and likely to cause imminent criminal conduct,… ‘hate speech’ writ large doesn’t fall within any such exceptions.” In addition, the D.C. Circuit has found that a former IRS attempt to hinge exemption on a group’s presentation of “a sufficiently full and fair exposition of the pertinent facts as to permit an individual or the public to form an independent opinion or conclusion” was unacceptably vague in scope and application.

Moreover, if the IRS were to begin revoking groups’ tax exemptions based on their exercise of speech that is not protected, such as libel or incitement of immediate criminal conduct, it would be obliged to apply such a policy neutrally as to content — which means a lot of groups quite different from the one targeted in the test-case controversy will find their ox gored. The legal precedents have developed in cases involving a wide range of both progressive and conservative litigants, and understandably so, because if principles in this area are to be principles they must protect speakers of many different points of view, not just the popular or emollient. Either that, or they will in effect protect none. [expanded and cross-posted at Cato at Liberty]

September 25 roundup

  • “Small claims court for copyright” idea, now moving rapidly through Congress, could create a new business model for troll claimants [Mike Masnick, TechDirt; EFF on CASE Act] A contrasting view: Robert VerBruggen, NR;
  • “If Boston is weirdly NOT full of good restaurant/bar/cafes for its size, and if people don’t want to stay after they hit 26 or so, these throttled [liquor] licenses are one of the real structural reasons why.” [Amanda Katz Twitter thread]
  • Push in California underway to join a trend I warned of five years ago, namely states’ enacting laws to encourage tax informants with a share of the loot [McDermott Will and Emery, National Law Review]
  • Baltimore food truck rule challenge, single-member districts, sexting prosecution, and more in my new Free State Notes roundup;
  • “For years the Westchester County DA, Jeanine Pirro, now a Fox News host who opines on justice, rejected Deskovic’s requests to compare the DNA evidence against a criminal database. Deskovic was not exonerated until 2006, after he had served 16 years” [Jacob Sullum, Reason]
  • Come again? “Louisville judge rules Kentucky speed limit laws unconstitutional” [Marcus Green, WDRB]

Constitutional law roundup

  • Does the Constitution allow Arizona to frame a new tax in such a way that de facto, though not de jure, nearly all of it falls on out-of-state residents? [Ilya Shapiro, Cato]
  • Writer and star of one-act play “isn’t a fan of America’s founding charter — which may be why her audiences are such big fans of hers.” [Andrew Ferguson, The Atlantic]
  • Pentagon has lately developed aerial surveillance technology with near-panopticon capabilities. OK to deploy over home territory? [Cato video with Patrick G. Eddington, Arthur Holland Michel, and Jenna McLaughlin on Michel’s book Eyes in the Sky: The Secret Rise of Gorgon Stare and How It Will Watch Us All]
  • Ilya Shapiro discusses New York Rifle and Pistol Association v. the City of New York [National Constitution Center We the People podcast; earlier here, here, and here] “Maryland’s gun permit system is challenged — and it’s probably unconstitutional” [my post at Free State Notes] “3-D Printed Guns & the First Amendment” [Federalist Society Policy Brief video with John Stossel and Josh Blackman]
  • Tradcons are kidding themselves if they imagine they can get a better constitutional deal outside the current legal conservative movement with its commitment to a broadly fusionist originalism, argues John McGinnis [Liberty and Law] “Originalism as ideology” [Michael Greve]
  • “Guam officials seek to hold referendum allowing voters to express their opinion about the future of the relationship between Guam and the United States but will only permit ‘Native Inhabitants of Guam’ to vote. Ninth Circuit: Which means restricting voting based upon race, which is explicitly prohibited by the Fifteenth Amendment.” [Institute for Justice “Short Circuit” on Davis v. Guam]

Finally, reform of structuring-law seizures

For years this website has covered the injustices of structuring law, under which persons who deposit or withdraw sums deemed too close to the $10,000 reporting threshold, even if for reasons that prove innocuous, can face seizure of their accounts. Now, under a tax-bill provision unanimously adopted by Congress and signed by President Trump, “the IRS can now only seize property for structuring if it’s ‘derived from an illegal source’ or if the money were structured to conceal criminal activity.” [Nick Sibilla, Forbes; Jacob Sullum, Reason; earlier]

“Congress Passes Bill To Protect Small-Business Owners from IRS Seizures”

On June 13 “the U.S. Senate unanimously approved legislation that stops the Internal Revenue Service from raiding the bank accounts of small-business owners. The Clyde-Hirsch-Sowers RESPECT Act, passed as part of the Taxpayer First Act (H.R. 3151), is named after Institute for Justice clients Jeff Hirsch and Randy Sowers, two victims of the IRS’s aggressive seizures for so-called ‘structuring.’ Through structuring laws, the IRS has routinely confiscated cash from ordinary Americans simply because they frequently deposited or withdrew cash in amounts under $10,000. And by using civil forfeiture, the IRS can keep that money without ever filing criminal charges.” [Nick Sibilla, Institute for Justice] We’ve covered the problems with structuring law, as well as asset forfeiture, for many years.

Liability roundup

  • Court of appeals throws out class action against provincial lottery Loto-Quebec: “[The lead plaintiff] said she wouldn’t have bought the tickets had she known the odds were so slim.” [Canadian Press/CBC]
  • And there was much rejoicing: Florida high court finally adopts Daubert, meant to curb use of faulty and unproven science in litigation [Karen Kidd, Florida Record, Beck]
  • Fake car-crash claims alleged: “5 SoCal Chiropractors Busted In $6M Insurance Fraud Scheme” [CBS Los Angeles] “Three Men Found Guilty Of $31 Million Slip-And-Fall Scheme Involving Homeless People” [Jen Chung, Gothamist] Cambridgeshire, England: “Footage shows moment car ‘runs over foot’ of binman accused of crash-for-cash scam” [Alex Matthews, The Sun (U.K.)]
  • If appellate review somehow leaves intact the scientifically baseless $2 billion Oakland verdict over glyphosate/Roundup, new changes in federal tax law might cut into plaintiffs’ winnings [Robert Wood, Forbes]
  • Tamper proof? Old bottles of baby powder bought on eBay are central to plaintiffs’ claims that Johnson & Johnson baby powder may have contained asbestos fibers, a theory that has underlain several large verdicts [Daniel Fisher, Legal NewsLine; John O’Brien, same; Jef Feeley and Margaret Cronin Fisk, Bloomberg]
  • “Michigan’s lawmakers have passed legislation to reform the state’s worst-in-the-nation auto insurance market.” [Ray Lehmann, R Street/Insurance Journal, earlier]

Constitutional law roundup