1. In McCulough v. Maryland, Chief Justice John Marshall promulgated the doctrine the power to tax is the power to destroy.

  2. Additionally, as we all know, the Lemon Test prohibits the United States government from enacting laws that "have the primary effect of either advancing or inhibiting religion."

Given these two points, is it fair to say that any proposal to eliminate the charitable contributions deduction would, by putting taxes on religious institutions, be considered unconstiutional?

  • The taxes are on people giving to charity, not on a religious institution. But IANAL :) – user4012 Dec 11 '12 at 17:08
  • Additionally, there are plenty of charities that are in no way religiously affiliated. The government could act in such a way to remove the existing deduction and replace it with one that applies to only religious charities for sure. – Michael Kingsmill Dec 13 '12 at 3:17

Removing the tax deduction for charitable contributions would not put a tax on religious institutions, meaning that regardless of the validity of your Lemon Test + McCulloch analysis, there would be no constitutional issue.

The tax deduction reduces the amount of taxes the person donating to the religious institution pays. That is, when you donate to the religious institution, you pay less taxes as a result. If we removed the tax deduction, you would pay higher taxes, not the religious institution.

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