Recent Developments in Church-State Law

Mr. Lanting, a member of South Holland Protestant Reformed Church, is a practicing attorney.


IRS Requires Substantiation for Charitable Contributions

The new law disallows a deduction for any contribution of $250 or more that is not substantiated by a written acknowledgement from the charity

IRS Revenue Procedure 90-12 

(1994) 

The treasurers of our churches, schools, and denominational organizations should be aware of new IRS rules regarding charitable gifts effective for 1994. The new rules declare that no charitable deduction will be allowed for gifts in excess of $250 unless the taxpayer provides the IRS with a written receipt from the charitable organization. 

These written receipts for gifts of $250 or more must contain the following information to conform to IRS guidelines: (1) the name of the donor taxpayer; (2) a description of the gift (property or cash); (3) itemization of each gift in excess of $250; (4) a statement by the charity declaring that no goods or services were furnished the donor in connection with any contribution or that the goods and services provided were of "insubstantial value" or consisted of "intangible religious benefits." 

For example, if a person regularly contributed $50 per week to his church's general fund, but contributes a single gift of $300 to the church's benevolence fund and $500 to the church building fund, the $300 and the $500 gifts must be listed separately on the receipt furnished the donor at year end. 

Moreover, as mentioned above, the written acknowledgment or receipt must state that the donor received no goods or services in consideration for the gifts or that their value was "insubstantial" or consisted of "intangible religious benefits." 

When the taxpayer does receive something of value in connection with, his contribution (e.g., a book or a power tool at a fund-raising auction), the receipt must indicate the extent to which the contribution exceeded the value of the goods or services received.

Although these new rules were undoubtedly designed to thwart abuse of charitable contribution deductions, these expansive regulations will regrettably entail additional bookkeeping and accounting work for treasurers of charitable institutions, including our churches and schools. The IRS has recently promised additional regulations interpreting this new law. Accordingly, school and church treasurers should consult with their local C.P.A. to formulate for donors yearend receipts that comply with these new ins requirements.

Parochial Schools Now Subject to Age Discrimination Act

Are parochial schools subject to the federal Age Discrimination in Employment Act (ADEA)? Yes, ruled a federal appeals court recently. 

The case began when a Catholic high school refused to renew the contract of a math teacher who had been employed by the parochial school for the five previous years. The school argued his dismissal was occasioned by his failure to begin classes with prayer and failure to attend Mass with his students. The teacher alleged he was dismissed because of his age.

The ADEA makes it unlawful for an employer to discriminate against any employee or applicant on the basis of age. An "employer" is defined as "a person engaged in an industry affecting commerce who has twenty or more employees . . . ." The ADEA does not specify whether religious institutions are "employers" within the Act. 

The school argued that the case should be summarily dismissed because, as a religious institution, it should be exempt from the ADEA's anti-discrimination provisions. (The lower court had held that application of the ADEA to a parochial school would give rise to an untoward risk of excessive government entanglement with religion). The federal appeals court disagreed and held the parochial school subject to the age discrimination act. 

The appellate court brushed aside the school's concern that the government would be evaluating religious motivations for dismissal or reassignment of employees of religious, institutions, and stated:

Given that the religious duties that the teacher allegedly failed to carry out are easily isolated and defined, we are confident that the able district judge will be able to focus the trial upon whether the teacher was fired because of his age or because of his failure to perform religious duties, and this can be done without putting into issue the validity or truthfulness of Catholic religious teaching.

The court then went on to say that even if the age discrimination inquiry would "present serious entanglement concerns" between church and state, religious institutions would nonetheless be subject to the ADEA simply because Congress did not specifically make them exempt from the ADEA. 

Comment. Other recent cases have held private schools to be subject to federal laws prohibiting discriminatory action based on gender. It now seems clear that most religious institutions including churches and private schools (with greater than twenty employees) will be subject to federal laws prohibiting discrimination based, on race, gender, national origin, and now age. Although religious institutions may still discriminate based on religion, the alleged religious reason may not be a pretext for discrimination based on gender, race, or age. One wonders how long religious institutions will remain exempt from "religious discrimination" and regrettably be held to the same laws as secular organizations in this regard also. SeeDeMarco v. Holy Cross High School, 4 F.3d 166 (2nd Cir. 1993). 

State Supreme Court Holds Killing of a Fetus is Murder

During a robbery in California, a pregnant woman was shot and the fetus was stillborn as a result of the injuries. The assailant was charged and convicted by a jury for murder of a fetus during the course of a robbery. The defendant appealed, arguing that the trial judge erred in refusing to instruct the jury regarding the "viability" of the fetus. The prosecution contended that no viability instruction was necessary because California law does not require a fetus to be viable to support a fetal murder charge.

The Californian Supreme Court upheld the conviction, declaring that third party killing of a fetus with malice aforethought is murder so long as the state can show that the fetus had progressed beyond the embryonic stage of seven to eight weeks.

Comment. The California Supreme Court, of course, made a sound decision in upholding the state fetal murder statute. But the defendant's argument is compelling: If mothers and doctors can kill a fetus prior to viability (24 weeks?), how can a robbery defendant be convicted of fetal murder without regard to viability?

This case clearly illustrates the absurdities resulting from the Roe v. Wade decision permitting abortion—killing a 15-week fetus during a robbery is murder, but terminating a 15-week fetus in a clinic is an "abortion." This California Supreme Court decision deserves much more notoriety than what it will undoubtedly experience. See People v. Davis, Calif. Supreme Court (May 16, 1994).