I don't have a problem with that general idea, Alan. In some cases where religious activity takes the form of speech, free exercise principles are most controlling and may call for distinctive protection; in some cases free speech principles are the most controlling and call generally for equal treatment.
I don't know exactly where those lines are, but it seems to me that sermons by religious leaders to the congregation present a strong case for a distinctive principle of non-interference. (I brought up institutional separation as a distinctive religion-clause principle; it's not a free speech principle.) Hosanna-Tabor and other decisions tell us religious leadership is a core area of free exercise, as is the congregational setting. For government officials to survey and parse the meaning of sermons is also a core problem; and if the electioneering restriction were seriously enforced against churches, it would require such parsing because of the IRS's stated position that the restriction covers more than express advocacy. And if it were enforced, the burden would be very serious: removing tax deductibility entirely, and probably substantially reducing resources, based on one instance deemed to be a candidate endorsement. I've framed these arguments as RFRA arguments, in article on "government benefits and religious organizational freedom" from 2009, which appears to be online only at SSRN (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1301685; see pp. 58-62, 66-67). Lloyd Mayer makes by far the most complete RFRA analysis in his B.U. L. Rev. piece "Pulpit and Politics," also from 2009, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1273602, at 1161-97. ----------------------------------------- Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu<https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3&URL=mailto%3atcberg%40stthomas.edu> SSRN: http://ssrn.com/author=261564 Weblog: http://www.mirrorofjustice.blogs.com ----------------------------------------------------------------------------- ________________________________ From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> on behalf of Alan E Brownstein <aebrownst...@ucdavis.edu> Sent: Thursday, May 4, 2017 5:30:53 PM To: Law & Religion issues for Law Academics Subject: Re: Johnson Amendment E.O. Whoops. I accidentally hit "send" too quickly on this post. I was going to ask you, Tom, how you decide when religious speech gets more protection than other speech and whether it only does so when clergy are speakers. Also, what would be wrong with characterizing those clergy expressive activities you think deserve protection against state interference as religious exercise rather than speech for constitutional purposes? Alan ________________________________ From: Alan E Brownstein Sent: Thursday, May 4, 2017 3:17 PM To: Law & Religion issues for Law Academics Subject: Re: Johnson Amendment E.O. Your broad question isn't easy to answer. But let me address your example. I don't think professional malpractice claims in general raise free speech issues. Medical malpractice and legal malpractice involve professional misconduct. We understand the speech that doctors, lawyers, psychotherapists etc. express in providing services to their clients as conduct, e.g., the practice of medicine. So I think the rejection of clergy malpractice claims does not involve treating religious speech differently than non-religious speech. It involves treating religious conduct differently than non-religious conduct. Religious accommodations do that all the time. Also, I think that when we confront religious expressive activity that in real terms is both religious exercise and speech, it may be that the best decision in some cases is to characterize the religious expressive activity as religious exercise rather than speech. Thus, for example, it may be that cases like Good News Club should not have been decided on free speech grounds, but rather as discrimination against religious exercise. That would arguably permit an accommodation for speech that is part of a worship without violating free speech purposes. Maybe the better analysis is that worship services should be considered religious exercise rather than speech for constitutional purposes. But that characterization would have to apply across the board. The alternative is to argue that a worship service is speech for the purpose of protecting it against discrimination, but it isn't speech for the purpose of evaluating discriminatory laws that favor it. One can argue that free exercise values justify discriminating in favor of religious speech in some circumstances so that viewpoint discrimination in favor of religious speech withstands rigorous review. But that really challenges core free speech principles when discrimination against the same religious expressive activity is condemned as viewpoint discrimination. ________________________________ From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> on behalf of Berg, Thomas C. <tcb...@stthomas.edu> Sent: Thursday, May 4, 2017 2:04:16 PM To: Law & Religion issues for Law Academics Subject: Re: Johnson Amendment E.O. Alan, do you think that "there can no special protection for religious speech" always trumps "don't delve into the content of clergy communications"? The rejection of clergy malpractice claims, which is thought to rest on 1st Amendment grounds, is a special protection for clergy communications and not communications by other counselors. Why don't ministers' sermons likewise fit into the zone where there is special concern for non-interference? ----------------------------------------- Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu<https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3&URL=mailto%3atcberg%40stthomas.edu> SSRN: http://ssrn.com/author=261564 Weblog: http://www.mirrorofjustice.blogs.com ----------------------------------------------------------------------------- ________________________________ From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> on behalf of Alan E Brownstein <aebrownst...@ucdavis.edu> Sent: Thursday, May 4, 2017 2:01:34 PM To: Law & Religion issues for Law Academics Subject: Re: Johnson Amendment E.O. I understand the concern that content-based constraints prohibiting the endorsement of candidates during sermons by clergy during worship services interfere with religious liberty. But it is also the case that such speech is a distinctive religious voice on electoral choices by the polity. The Court has held repeatedly that religious speech constitutes a viewpoint and that discrimination against such speech constitutes viewpoint discrimination -- even if the speech is expressed in an activity that is essentially a worship service. (Good News Club etc.) The prohibition against viewpoint discrimination has to be applied in an even-handed way. If discrimination against religious speech is unconstitutional viewpoint discrimination, discrimination in favor of religious speech has to be unconstitutional viewpoint discrimination as well. Religion cannot be some kind of constitutional chameleon that is a viewpoint of speech when it is disfavored by discriminatory speech restrictions but is not a viewpoint of speech when it is favored by discriminatory speech regulations. Thus, any order that required the IRS to enforce speech regulations less rigorously for religious speakers and institutions than secular speakers and institutions should constitute viewpoint discrimination on its face and be subject to strict scrutiny review. (And then, of course, there are establishment clause concerns.) As to the policy issues raised by legislation to limit the Johnson Amendment, Rabbi Saperstein's arguments are persuasive, but probably understate the consequences of a formal change in this tax provision. Sermons are broadcast today. Religious groups engage in door to door proselytizing. Many houses of worship have large signs communicating religious messages to the community. Religious institutions communicate through social media to their congregants and to the general public. All of this is done in the ordinary course of their activities. All of these actions could be employed to support candidates during an election. Further, there is a reason so many clergy oppose tampering with the Amendment. They do not want their houses of worship and institutions transformed and divided by partisan politics. And they know that once some congregations in their communities start to endorse candidates, it will be difficult for others to remain silent and cede the public election square exclusively to other faiths. Shameless plug. https://www.usnews.com/opinion/debate-club/articles/2017-02-10/congress-should-think-hard-before-repealing-the-johnson-amendment Alan Brownstein ________________________________ From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> on behalf of Laycock, H Douglas (hdl5c) <hd...@virginia.edu> Sent: Thursday, May 4, 2017 9:05:52 AM To: Law & Religion issues for Law Academics Subject: RE: Johnson Amendment E.O. Those are troubling hypotheticals. I don't think they are as troubling as telling a minister, priest, or rabbi what he can preach about. If it's just a front that does nothing but politics, it is not covered by the bills to exempt endorsements in the ordinary course of the organization’s activities and with no more than a de minimis marginal cost. There has to be some other ordinary activity that the political speech is in the course of. The phone bank is not in the ordinary course of the church’s activities. And that requirement could be strengthened, although enforcement might be difficult. The bona fide religious, educational, or charitable purpose puts some constraints on hijacking it just for political purposes; many of the folks involved for the original purpose get resentful and leave. I assume that's why churches don't do all the things they could do now. They don't create church PACs, although they could, and I don't hear stories of them doing the sorts of things David imagines, although enforcement is lax. Which is not to say that there wouldn’t be occasional abuses; some are probably inevitable. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Thursday, May 4, 2017 11:54 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Johnson Amendment E.O. Just came across this from David Saperstein’s testimony<https://oversight.house.gov/wp-content/uploads/2017/05/Saperstein_Testimony_05042017.pdf> today. He makes the point much better than I did--I would only add that virtually all of his hypos could be extended beyond the church, to countless activities of all 501(c)(3) organizations: Let me offer some hypotheticals of the implications of a proposal that says any statement is allowed that does not involve extra expenses: Suppose instead of one sermon, in every scheduled sermon for the half-year running up to the election, the pastor(s) endorses various candidates and reiterates those endorsements? Suppose in every regular bulletin and regular email over those six months, the pastor or church leaders focus on endorsements of a party or a candidate(s)? Suppose with the costs of local calls being de minimis these days, they allow their phones to be used for campaign phone banks? Suppose a church has their congregants fill out cards for the offerings for later tax verification (putting their money and card in an envelope which they hand in) — and the church then adds envelopes and cards to fill out for contributions to the candidates they endorse and collect those with the offerings and someone from the campaign comes by every week and collects them. Or suppose the President of Notre Dame or Catholic University adds a single sentence to their regular email to their scores of thousands of alumni : “I believe based on sound religious reasoning you should all vote for Candidate A and oppose Candidate B.” Certainly de minimis but is that how tax deductible money should be used? In each of these there is no extra funding bulletins or emails, collecting offerings) what they would normally do. Are proponents of this legislation arguing that although you might disapprove on other grounds, that as far as the law is concerned, this ought to be allowed because it really doesn’t constitute using tax exempt and tax deductible funding for partisan political purposes? What is the cumulative value of the salaries and the overhead of the congregation in making this electioneering possible? If the church is funded by tax deductible contributions, are not these contributions subsidizing this electoral activity? If the church has the benefit of tax exemption to support its eleomosynary work, does not the tax exemption support everything the church does including its endorsement activities? Everything about the church is subsidized by tax exempt and tax deductible money. And that is as true of one sermon as six months of sermons; of one bulletin as six months of bulletins.
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