Freedom from Religion Foundation, Inc. v. Shulman

961 F. Supp. 2d 947, 2013 WL 4446555, 112 A.F.T.R.2d (RIA) 5804, 2013 U.S. Dist. LEXIS 117234
CourtDistrict Court, W.D. Wisconsin
DecidedAugust 19, 2013
DocketCase No. 12-C-0818
StatusPublished

This text of 961 F. Supp. 2d 947 (Freedom from Religion Foundation, Inc. v. Shulman) is published on Counsel Stack Legal Research, covering District Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Freedom from Religion Foundation, Inc. v. Shulman, 961 F. Supp. 2d 947, 2013 WL 4446555, 112 A.F.T.R.2d (RIA) 5804, 2013 U.S. Dist. LEXIS 117234 (W.D. Wis. 2013).

Opinion

DECISION AND ORDER

LYNN ADELMAN, District Judge.

Section 501(c)(3) of the Internal Revenue Code exempts entities that are organized and operated exclusively for religious, charitable, scientific, or other specified purposes from having to pay federal income taxes. A condition of this exemption is that the entity not participate in or intervene in any political campaign on behalf of, or in opposition to, any candidate for public office. 26 U.S.C. § 501(c)(3). The plaintiff in this case, the Freedom from Religion Foundation (the “Foundation”), alleges that the Internal Revenue Service has a policy of not enforcing this condition to tax-exempt status against churches and religious organizations. At the same time, the Foundation alleges, the IRS fully enforces the condition against other tax-exempt organizations. The Foundation, which is itself a § 501(c)(3) organization, contends that the IRS’s policy of disparate treatment violates its rights under both the Establishment Clause and the equal-protection component of the Fifth Amendment. It seeks declaratory and injunctive relief. The IRS has moved to dismiss the complaint for two reasons: (1) the Foundation lacks standing to sue, and (2) the suit, which is really a suit against the United States, is barred by sovereign immunity. I consider these arguments below.

I. STANDING

To prove that he has standing to seek injunctive relief, a plaintiff must show that he is under threat of suffering “injury in fact” that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury. See, e.g., Summers v. Earth Island Institute, 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). The Foundation has shown all of these things. [951]*951If it is true that the IRS has a policy of not enforcing the prohibition on campaigning against religious organizations, then the IRS is conferring a benefit on religious organizations (the ability to participate in political campaigns) that it denies to all other § 501(c)(3) organizations, including the Foundation. As a victim of the IRS’s alleged discrimination, the Foundation has suffered an injury in fact. See Heckler v. Mathews, 465 U.S. 728, 738-40, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984) (victim of unequal treatment has standing to seek equal treatment); see also Iowa-Des Moines Nat’l Bank v. Bennett, 284 U.S. 239, 247, 52 S.Ct. 133, 76 L.Ed. 265 (1931) (cause of action for equal protection accrues as soon as the plaintiff is deprived of equal treatment). Moreover, because the Foundation alleges that the IRS’s policy is ongoing, the injury is more than actual and imminent — the Foundation is being deprived of equal treatment right now. This injury is fairly traceable to the actions of the IRS, since it is the IRS’s own policy that is causing the alleged unequal treatment. Finally, an injunction prohibiting the IRS from continuing this policy of unequal treatment will prevent any further injury. Accordingly, the Foundation has standing to sue.

The IRS makes a number of arguments against the Foundation’s having standing, none of which has merit. First, the IRS argues that the Foundation is not personally affected by the challenged policy and is instead seeking to vindicate a generalized interest in making sure that the government is administered in accordance with the Constitution. See, e.g., Freedom from Religion Foundation v. Obama, 641 F.3d 803, 807-08 (7th Cir.2011). However, as explained, the Foundation is itself a § 501(c)(3) organization and is suing to vindicate its own right to equal treatment. Thus, the Foundation is not asserting as its injury in fact the “ ‘abstract injury in nonobservance of the Constitution asserted by ... citizens’ in general.” Id. at 808 (quoting Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 223 n. 13, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974)).

Second, the IRS argues that the Foundation does not want to participate in political campaigns and therefore has no interest that is implicated by the IRS’s policy of not enforcing the prohibition on political campaigning against religious organizations. However, the Foundation never states that it does not want to participate in political campaigns. Instead, the Foundation describes the ability to participate in political campaigns as a “very significant benefit” and states that it refrains from participating in such campaigns because it does not want to risk its tax-exempt status. See Br. in Opp. at 13, ECF No. 14. It is evident from this statement that the Foundation would prefer to both participate in political campaigns and keep its tax-exempt status. Thus, it is not the case that the IRS is extending a benefit to religious organizations that the Foundation is uninterested in obtaining for itself. Of course, because § 501(c)(3) prohibits all tax-exempt organizations from participating in political campaigns, the Foundation will not in this suit be able to obtain an order allowing it to both participate in such campaigns and retain its tax-exempt status. However, this does not affect the Foundation’s standing to seek an order requiring the IRS to withdraw any benefit that it is currently and unlawfully extending only to religious groups. As the Supreme Court has recognized, when the injury is unequal treatment, “the appropriate remedy is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to [952]*952the excluded class.” Heckler, 465 U.S. at 740, 104 S.Ct. 1387; accord lowa-Des Moines Natl Bank, 284 U.S. at 247, 52 S.Ct. 133. Thus, the Foundation has standing to seek an order requiring the IRS to treat religious organizations no more favorably than it treats the Foundation.

Third, the IRS argues that the Foundation’s alleged injury is not “particularized” because, if the Foundation’s allegations are true, then all § 501(c)(3) organizations that are not also religious organizations will have suffered the same injury. See Br. in Supp. at 12, ECF No. 13. Although it is true that if the Foundation’s allegations are true then all nonreligious § 501(c)(3) organizations will have suffered the same injury, this does not deprive the Foundation of standing. As both the Supreme Court and the Seventh Circuit have held, an injury does not fail to be concrete and particularized simply because many other persons have suffered the same injury. See United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 687-88, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Lac du Flambeau Band of Lake Superior Chippewa Indians v. Norton,

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Iowa-Des Moines National Bank v. Bennett
284 U.S. 239 (Supreme Court, 1932)
Schlesinger v. Reservists Committee to Stop the War
418 U.S. 208 (Supreme Court, 1974)
Heckler v. Mathews
465 U.S. 728 (Supreme Court, 1984)
Lujan v. Defenders of Wildlife
504 U.S. 555 (Supreme Court, 1992)
Elk Grove Unified School District v. Newdow
542 U.S. 1 (Supreme Court, 2004)
Summers v. Earth Island Institute
555 U.S. 488 (Supreme Court, 2009)
Freedom From Religion Foundation, Inc. v. Obama
641 F.3d 803 (Seventh Circuit, 2011)
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667 F.3d 765 (Seventh Circuit, 2011)
Blagojevich v. Gates
519 F.3d 370 (Seventh Circuit, 2008)

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961 F. Supp. 2d 947, 2013 WL 4446555, 112 A.F.T.R.2d (RIA) 5804, 2013 U.S. Dist. LEXIS 117234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freedom-from-religion-foundation-inc-v-shulman-wiwd-2013.