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Government Inspection of Donor and Membership Lists

§ 6.03.04
Key point 6-03.04. Church donor and membership lists are subject to government inspection, so long as the government has a compelling interest in obtaining this information.

Whether the government has the right to compel religious organizations to release the names of members and contributors is a hotly contested issue. In 1958, the United States Supreme Court ruled that the freedom to associate with others for the advancement of beliefs and ideas is a right protected by the First Amendment against governmental infringement, whether the beliefs sought to be advanced are political, economic, religious, or cultural.[112] National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 (1958). The Court acknowledged that the right of association is nowhere mentioned in the First Amendment, but it reasoned that such a right must be inferred in order to make the express First Amendment rights of speech and assembly more secure. The court concluded that an order by the State of Alabama seeking to compel disclosure of the name of every member of the National Association for the Advancement of Colored People in Alabama constituted an impermissible restraint upon members' freedom of association, since on past occasions "revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of [the NAACP's] Alabama membership is likely to affect adversely the ability of [the NAACP] and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it. …"[113] Id. at 462-63.

It is clear that governmental actions that may have the effect of curtailing the freedom of association are subject to the closest scrutiny. Yet the courts have made it clear that the right to associate is not absolute; a "significant interference" with the right may be tolerated if the government (1) avoids unnecessary interference, (2) demonstrates a sufficiently important interest, and (3) employs the least intrusive means of achieving its interests.[114] Cousins v. Wigoda, 419 U.S. 477, 488 (1975).

The Supreme Court has observed that "decisions … must finally turn, therefore, on whether [the government] has demonstrated so cogent an interest in obtaining and making public the membership lists … as to justify the substantial abridgement of associational freedom which such disclosures will effect. Where there is a significant encroachment upon personal liberty, the state may prevail only upon showing a subordinating interest which is compelling."[115] Bates v. Little Rock, 361 U.S. 516, 524 (1960).

Government demands for the production and inspection of membership and contributor lists frequently are approved on the ground that a compelling governmental interest exists.

Case studies
A federal appeals court upheld the enforcement of an IRS summons seeking the name of every individual who had contributed property other than securities to Brigham Young University (BYU) during a three-year period.[116] United States v. Brigham Young University, 679 F.2d 1345 (10th Cir. 1982). Before issuing the summons, the IRS had audited the returns of 162 taxpayers who had contributed property to the university during the years in question. In each instance the amount of the contribution claimed by the taxpayer was overvalued, and in many cases grossly overvalued. As a result, the IRS surmised that many other contributors had overvalued their contributions as well. The university challenged the summons on the ground that the IRS was without a reasonable basis for believing that the remaining contributors had overvalued their contributions. The university further asserted that the information sought was readily available to the IRS through its own files, and that enforcement of the summons would infringe upon the contributors' freedom of association under the First Amendment. The court, in upholding the summons, observed that "having previously examined the returns of some 162 donors of gifts in kind to BYU and having found that all were overvalued, the IRS has established a reasonable basis for believing that some of the remaining donors of in kind gifts may have also overvalued their gifts."[117] Id. at 1349.
A federal court in the District of Columbia ruled that a church could not be forced to disclose the names of its members in a lawsuit. The court observed: "There is … implicit in the First Amendment's guarantee of religious freedom, the right to choose whether or not to disclose one's religious affiliation lest forced disclosure inhibit the free exercise of one's faith. I have to believe that, when a person provides her name and address to a church that has asked her to become a member, she reasonably expects that her name and address will be disclosed to other church members, used by the church to invite her to other church functions, and used to solicit her contribution to the church's financial welfare. There is nothing I know of in the American experience that suggests to me that by giving one's name and address to a church one thereby agrees to the publication of one's religious affiliation to the whole world."[118] Johnson v. The Washington Times Corporation, 208 F.R.D. 16 (D.D.C. 2002).
A California court ruled that the right to associational privacy extends to private lawsuits as well as governmental investigations, and thus a litigant has no right to compel disclosure of the membership list of a church unless he can establish a compelling state interest justifying disclosure.[119] Church of Hakeem, Inc. v. Superior Court, 168 Cal. Rptr. 13 (1980).
A New York court ruled that the constitutional guaranty of religious freedom did not excuse a church from producing its records in response to a grand jury subpoena. During a tax investigation, the state attorney general subpoenaed several records and documents from a church. The church challenged the validity of the subpoena on the ground that disclosure of the documents would violate the constitutional rights of the church and its members. Church representatives argued that disclosure of the records would reveal the identities of contributors to the church in violation of the church's belief (based on ) that "charity should be given in secrecy." The court rejected the church's claim. It noted that "it is hard to conceive that release of charge or credit account records, or records of employees' travel expense accounts, would have any likelihood whatsoever" of violating any religious beliefs or tenets of the church. The court agreed that the disclosure of some records would violate contributor's constitutional guaranty of religious freedom. It cited cash receipts records and bank statements. The court further agreed that disclosure of records revealing the charitable recipients of church funds (e.g., canceled checks and bank statements) also might violate the church's rights. However, the church would be required to disclose these records if the state could prove that the alleged violation of the church's rights was outweighed by a "compelling state interest to which the information sought is substantially related" and that the "state's ends may not be achieved by less restrictive means." The court concluded that such was the case here, since the church's records were sought in connection with an investigation into tax-related offenses including underreporting of compensation paid to officers and employees and diversion of church funds to nonreligious purposes, and "it is by now well settled that enforcement of a state's revenue laws constitutes a compelling governmental interest."[120] Full Gospel Tabernacle, Inc. v. Attorney General, 536 N.Y.S.2d 201 (1988). See also Abrams v. Temple of the Lost Sheep, Inc., 562 N.Y.S.2d 322 (Sup. Ct. 1990); Abrams v. New York Foundation for the Homeless, Inc., 562 N.Y.S.2d 325 (Sup. Ct. 1990).
A federal bankruptcy court ruled that a creditor was not entitled to obtain the names of the members of a church that was in bankruptcy.[121] In re Deliverance Church, 2011 WL 6019359 (N.D. Ohio 2012).

It is not clear whether the government needs to prove a "compelling interest" to inspect church membership or donor records following the Supreme Court's 1990 decision in the Smith case.[122] Employment Division v. Smith, 110 S. Ct. 1595 (1990). In Smith, the Court ruled that "neutral laws of general applicability" are presumably valid without the need for demonstrating a "compelling state interest." Statutes that give government agencies a broad authority to collect information (including church membership or donor information) may well be deemed "neutral laws of general applicability" by the courts. But this does not necessarily mean that such agencies can inspect church records without proof of a compelling state interest.

In the Smith case the Supreme Court observed that the compelling government interest test applies if a neutral and generally applicable law burdens not only the exercise of religion, but also some other First Amendment right (such as the right of association, described above). The Court observed: "The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the free exercise clause alone, but the free exercise clause in conjunction with other constitutional protections, such as freedom of speech and of the press. …" In other words, if a neutral and generally applicable law or governmental practice burdens the exercise of religion, then the compelling governmental interest standard can be triggered if the religious institution or adherent can point to some other First Amendment interest that is being violated. In many cases, this will not be hard to do.

If the identities of all members or contributors are not reasonably relevant to a particular governmental investigation, the government's interest in disclosure will not be sufficiently compelling to outweigh the constitutionally protected interests of members and contributors.[123] See, e.g., Savola v. Webster, 644 F.2d 743 (8th Cir. 1981); Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir. 1980).

Tip. Neither the Privacy Act of 1974 nor the Freedom of Information Act applies to church records.
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