Virginia's Unconstitutional Effort to Strip Property Tax Exemptions From Pro-Confederate Groups

Earlier this week, Virginia Governor Abigal Spanberger signed into law a bill stripping property tax exemptions from various pro-Confederate nonprofit organizations:

On Monday, Virginia’s governor, Abigail Spanberger, a Democrat and the state’s first female governor, signed into law a bill that eliminates tax exemptions for organizations connected to the Confederacy.

HB167, passed by Democrats in the Virginia house and senate, specifically removes the Virginia division of the United Daughters of the Confederacy, the Stonewall Jackson Memorial, the Virginia division of the Sons of Confederate Veterans and the Confederate Memorial Literary Society, along with other groups, from the state’s list of organizations that are exempt from state property taxes.

While well-intentioned, this law nonetheless violates the First Amendment. I do not say that because I have any sympathy for the groups in question. I hate the Confederacy and all it stood for, oppose attempts to whitewash its reputation by claiming it wasn’t established for the purpose of defending the evil institution of slavery, support taking down Confederate monuments, and oppose right-wing efforts to restore restore military base names honoring Confederate generals.

Thus, I very much sympathize with what the New York Times describes as the bill sponsors’ desire to “distance Virginia from its Confederate past.” As a Virginia resident and a state employee (professor at a Virginia state university), I agree the state should repudiate the Confederacy rather than honor it.

But this is not the way to do it. It seems obvious the groups in question lost their tax exemptions because of state officials’ hostility to their views. While those views are indeed odious, eligibility for tax exemptions should not depend on viewpoints. Making them so dependent violates the First Amendment, which – among other things – forbids conditioning government benefits and exemptions on political and social views.

Imagine a red state legislature enacting bill discriminatorily denying nonprofit tax exemptions to left-wing “social justice” groups, or groups promoting racial minority group rights (such as the NAACP), groups promoting abortion rights, and so on. Such a bill would obviously violate the First Amendment. The Virginia law targeting pro-Confederate groups is much the same, differing only in its ideological valence.

One could try to defend the bill on the grounds that it was just amending a preexisting law specifically singling out these groups for property tax exemptions. If the state legislature can pass a law singling out certain groups by name for tax exemptions, then it can also repeal it.

I agree that the state is not required to continue these property tax exemptions forever. But there is an important difference between the original law, and this new one. The preexisting law gave property tax exemptions to a wide range of nonprofit civic and historic preservation groups, not just those espousing a particular ideology. The groups appear to have been chosen based on function not viewpoint. Here is the complete list of organizations granted exemptions, which includes veterans groups, historic preservationists, groups promoting the arts, and more:

the Association for the Preservation of Virginia Antiquities, the Association for the Preservation of Petersburg Antiquities, Historic Richmond Foundation, the Confederate Memorial Literary Society, the Mount Vernon Ladies’ Association of the Union, the Virginia Historical Society, the Thomas Jefferson Memorial Foundation, Incorporated, the Patrick Henry Memorial Foundation, Incorporated, the Stonewall Jackson Memorial, Incorporated, George Washington’s Fredericksburg Foundation, Home Demonstration Clubs, 4-H Clubs, the Future Farmers of America, Incorporated, the posts of the American Legion, posts of United Spanish War Veterans, branches of the Fleet Reserve Association, posts of Veterans of Foreign Wars, posts of the Disabled American Veterans, Veterans of World War I, USA, Incorporated, the Society of the Cincinnati in the State of Virginia, the Manassas Battlefield Confederate Park, Incorporated, the Robert E. Lee Memorial Foundation, Incorporated, the Virginia Division of the United Daughters of the Confederacy, the General Organization of the United Daughters of the Confederacy, the Memorial Foundation of the Germanna Colonies in Virginia, Incorporated, the Lynchburg Fine Arts Centers, Incorporated, Norfolk Historic Foundation, National Trust for Historic Preservation in the United States, Historic Alexandria Foundation, and the Lynchburg Historical Foundation.

The new law strips property tax exemptions from the pro-Confederate groups, while leaving them in place for all the others. That’s pretty obvious discrimination based on political ideology. The Virginia state legislature could end this tax exemption for all the groups in question, or reduce it in various ways. It could eliminate some groups but not others based on nonideological criteria. But it cannot do so based purely on the views of the groups in question.

Such viewpoint discrimination with respect to tax exemptions and government benefits is a potentially very dangerous tool that government can use to penalize opposition (even as it rewards its supporters). If courts were to uphold the Virgina law against First Amendment challenges, it would set a dangerous precedent that state and federal officials of various political stripes could exploit to target their opponents.

Even if you trust our current Democratic governor and state legislature with this kind of power, I bet you don’t have similar confidence in the Republicans (and vice versa). The Trump Administration has been trying to find ways to strip tax exemptions from nonprofit groups opposed to its agenda, including various left-wing ones.  If you think Trump’s efforts along these lines are unconstitutional (and they are), then the same reasoning applies to the new Virginia law.

The truth is neither Democratic politicians nor Republican ones can be trusted with the authority to dole out and remove tax exemptions and other benefits based on ideology. That’s one of the reasons why we have a First Amendment in the first place.

And here, as elsewhere, freedom of speech cannot be limited to those who espouse viewpoints we like. As Supreme Court Justice Oliver Wendell Holmes famously put it, this right must include “freedom for the thought that we hate.” It must extend even to those with deeply odious and reprehensible views – including, in this case, apologists for the Confederacy.

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