Can the Westboro Baptist Church (the Funeral Picketers) Be Stripped of Their Tax-Exempt Status Because of Their Views?

There’s a petition so urging (with 30,000 signatures); there’s another petition asking that the church be “[l]egally recognize[d] … as a hate group” and subject to “some form of imposed regulation.” Is such stripping of a tax exemption based on the group’s “hate” viewpoint, or other similar “regulation,” constitutional?

No. The government may indeed impose certain subject-matter-based restrictions on the use of tax-deductible contributions; for instance, federal tax law currently bans the use of tax-deductible contributions for urging the election or defeat of a candidate, or for “substantial” lobbying in favor of against the enactment of legislation. The Court has upheld that, in Regan v. Taxation With Representation (1983). (Groups still have a right to set up affiliates that collect and spend non-tax-deductible contributions on electioneering and lobbying; under federal tax law, these are called “501(c)(4) organizations,” as opposed to the “501(c)(3) organizations” that use tax-deductible contributions for other purposes.)

But the government may not impose viewpoint-based restrictions on the use of tax-deductible contributions, or on other tax exemptions. See, e.g., Rosenberger v. University of Virginia (1994); Speiser v. Randall (1958). “[R]egulation[s]” and removals of tax-exempt status targeting groups because they are supposedly “hate” groups would indeed be viewpoint-based and would thus violate the First Amendment.