Re: Johnson Amendment E.O.
In light of the concurrent dialogue on Trinity Lutheran Church v. Comer and this discussion of the nature of non-profits, I would ask the question as to whether churches, synagogues, mosques or other houses of worship are even properly categorized under 501(c)(3). Most 501(c)(3) charities are anticipated to take on things that the government could otherwise do, but for which the charities are better qualified or willing to do privately. However, houses of worship primarily exist to engage in exercise of religious practice, proselytize or otherwise do things which the government is constitutionally prohibited from doing. The state can subsidize most charities, but cannot subsidize houses of worship. (I'm not talking about hospitals or other public service entities operated by churches in this analysis.) Is it possible that houses of worship actually should be categorized as a separate form of entity given how different they are from other 501(c)(3) organizations? Is 501(c)(3) stretched too thin? I wonder if the real "home" for the tax-exempt status of religious organizations is actually found in the actual separation of church and state itself. The state does not subsidize the worship activities of churches (not even Trinity Lutheran is asking for this) and churches do not subsidize the state through taxes. Tax-exemption of churches existed prior to the IRS tax code, and certainly before the Johnson Amendment in 1954, and even if Congress decided to abandon the 501(c)(3) non-profit framework altogether, wouldn't the tax exemption of churches survive separately under pre-existing American notions of church-state separation? Michael Peabody On Tue, May 9, 2017 at 9:36 AM, Berg, Thomas C. <tcb...@stthomas.edu> wrote: > I personally am OK with focusing on the free exercise clause in cases > where the focus is on the house of worship. But I think that the free > ex clause should also contain a strong principle of nondiscrimination > against religion. Advocates have been pushed to rely on free speech because > of the tendency of courts and commentators to say there's no free exercise > claim unless the religious exercise is very significantly burdened. For > example, the arguments that denials of benefits almost never constitute a > burden; or White's dissent in Widmar v. Vincent arguing that the university > could single out the religious group because it was a free exercise case > only and the group was not burdened because it could meet somewhere off > campus. > > - > 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 <(651)%20962-4918> > Fax: 651 962 4881 <(651)%20962-4881> > E-mail: tcb...@stthomas.edu > <https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3=mailto%3atcberg%40stthomas.edu> > SSRN: http://ssrn.com/author=261564 > Weblog: http://www.mirrorofjustice.blogs.com > > - > -- > *From:* religionlaw-boun...@lists.ucla.edu <religionlaw-bounces@lists. > ucla.edu> on behalf of Alan E Brownstein <aebrownst...@ucdavis.edu> > *Sent:* Sunday, May 7, 2017 11:04:56 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Johnson Amendment E.O. > > > Tom, > > I understand the lines are difficult to draw and I certainly do not claim > to have a fully developed framework for drawing them. And I have some > sympathy for the position that worship services should be characterized as > religious exercise rather than speech so that accommodations of worship > services and houses of worship do not necessarily trigger rigorous free > speech review. > > > What I have not seen, however, are scholars and advocates who argue for > distinctive treatment of worship and houses of worship taking the necessary > corollary step and recognizing that the exclusion of worship services from > public property or the exclusion of houses of worship from general funding > programs does not trigger rigorous free speech review. > > > Would you agree with me, Tom, that in those situations where free > exercise principles control and justify distinctive treatment for religion, > religious claimants cannot also claim that free speech principles control > and require equal treatment. > > > Alan > > > > -- > *From:* religionlaw-boun...@lists.ucla.edu <religionlaw-bounces@lists. > ucla.edu> on behalf of Berg, Thomas C. <tcb...@stthomas.edu> > *Sent:* Thursday, May 4, 2017 5:52:49 PM > *To:* Law & Religion issues for Law Acade
Re: Johnson Amendment E.O.
I personally am OK with focusing on the free exercise clause in cases where the focus is on the house of worship. But I think that the free ex clause should also contain a strong principle of nondiscrimination against religion. Advocates have been pushed to rely on free speech because of the tendency of courts and commentators to say there's no free exercise claim unless the religious exercise is very significantly burdened. For example, the arguments that denials of benefits almost never constitute a burden; or White's dissent in Widmar v. Vincent arguing that the university could single out the religious group because it was a free exercise case only and the group was not burdened because it could meet somewhere off campus. - 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=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: Sunday, May 7, 2017 11:04:56 PM To: Law & Religion issues for Law Academics Subject: Re: Johnson Amendment E.O. Tom, I understand the lines are difficult to draw and I certainly do not claim to have a fully developed framework for drawing them. And I have some sympathy for the position that worship services should be characterized as religious exercise rather than speech so that accommodations of worship services and houses of worship do not necessarily trigger rigorous free speech review. What I have not seen, however, are scholars and advocates who argue for distinctive treatment of worship and houses of worship taking the necessary corollary step and recognizing that the exclusion of worship services from public property or the exclusion of houses of worship from general funding programs does not trigger rigorous free speech review. Would you agree with me, Tom, that in those situations where free exercise principles control and justify distinctive treatment for religion, religious claimants cannot also claim that free speech principles control and require equal treatment. Alan 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 5:52:49 PM To: Law & Religion issues for Law Academics Subject: Re: Johnson Amendment E.O. 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
Re: Johnson Amendment E.O.
Tom, I understand the lines are difficult to draw and I certainly do not claim to have a fully developed framework for drawing them. And I have some sympathy for the position that worship services should be characterized as religious exercise rather than speech so that accommodations of worship services and houses of worship do not necessarily trigger rigorous free speech review. What I have not seen, however, are scholars and advocates who argue for distinctive treatment of worship and houses of worship taking the necessary corollary step and recognizing that the exclusion of worship services from public property or the exclusion of houses of worship from general funding programs does not trigger rigorous free speech review. Would you agree with me, Tom, that in those situations where free exercise principles control and justify distinctive treatment for religion, religious claimants cannot also claim that free speech principles control and require equal treatment. Alan 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 5:52:49 PM To: Law & Religion issues for Law Academics Subject: Re: Johnson Amendment E.O. 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=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
Re: Johnson Amendment E.O.
I think that it's probably best, if possible, to reduce the severity of the electioneering restriction (remember, one instance of an endorsement is a violation in theory) as to both religious and secular organizations. (Weakening it for both may be the current situation in practice, and the current proposed bills would codify it.) But regardless of that, I think that there is a distinctive argument for protection of ministers and sermons. Chip, I'm surprised that you wouldn't see any distinctive constitutional problem in government officials surveying and parsing the content of a sermon to decide whether statements were just pointed religious rhetoric or a campaign endorsement. I would have thought that this is similar to the government involvement in evaluating clergy functions that you find impermissible in your argument for the ministerial exemption. If this issue can be best framed as a RFRA issue (as I think it can; see my post to Alan), then the right to block government interference in sermons is strong but not absolute. There is a compelling interest in preventing imminent threats of violence (Brandenburg). There is a compelling interest in preventing defamation done with intent or actual malice, at least where it is not limited to or intertwined with church discipline of a member. (Why not use the actual malice standard from NYT v. Sullivan, as you and Bob did quite convincingly in your piece about institutional immunity for sexual-abuse claims.) But as Lloyd Mayer shows in detail in his piece, protecting ordinary sermons against IRS interference is not needed to serve compelling interests in protecting the fisc or preventing the flow of political money into religious organizations. The restriction hasn't been applied to churches for years, and it would be hard to show serious harms from that. As to the "privilege" given to churches, I don't think every case of exemption is a privilege (and claiming that it gives churches a real power advantage is in some tension with the common claim that most churches don't want it and would be harmed by exercising it (I agree with the latter as a policy matter)). Texas Monthly did not say that all tax exemptions for religious organizations or claimants are improper or unconstitutional. If an Amish college or social service objected to paying taxes into the social security system, would it be unconstitutional for Congress to exempt it? Was the exemption for self-employed Amish in Lee--which the Court relied on to show that Congress could accommodate Amish objections within reason--actually unconstitutional? Even the plurality opinion in Texas Monthly said that a big part of the problem with the sales-tax exemption was that sales taxes impose no significant deterrent to religious exercise: in contrast to flat taxes, they are charged incrementally on each sale and so are very unlikely (at least when set at a low level) to reduce the activity dramatically. By contrast, as I've said, the threat of total loss of deductibility for one statement deemed to be a candidate endorsement, under somewhat unclear rules, would be (if it were enforced) a very significant deterrent to pointed political analysis in sermons. There are very good reasons why the IRS usually leaves it unenforced. I'm relying on RFRA, which I know you believe doesn't work (but I believe does). And that's another bigger conversation. Today, of course, this discussion is academic, because Trump's order doesn't take on any hard issue. - 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=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 Ira Lupu <icl...@law.gwu.edu> Sent: Thursday, May 4, 2017 7:08:00 PM To: Law & Religion issues for Law Academics Subject: Re: Johnson Amendment E.O. I am wondering how far Tom's notion of privilege for sermons (compared with all other communications by leaders of non-profit groups or entities) can be carried. Does anyone think that a clergyman, speaking in a sermon, has a privilege to defame a third party who is not a member of, or in any other relationship to, the worship community? How about to incite imminent violence, or to threaten others with violence? If there are no "sermon" privileges with respect to these speech wrongs, why should we treat differently those sermons that demonstrate a v
Re: Johnson Amendment E.O.
I was referring to special rules for sermons as opposed to public speeches by the leaders of Planned Parenthood or the NRA. Best, Eric Sent from my iPhone On May 4, 2017, at 9:20 PM, Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote: The pending bills to amend the Johnson Amendment would apply to religious and secular charities alike. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] on behalf of Eric J Segall [eseg...@gsu.edu<mailto:eseg...@gsu.edu>] Sent: Thursday, May 04, 2017 9:03 PM To: Law & Religion issues for Law Academics Subject: Re: Johnson Amendment E.O. I am new to this issue so pardon what might be an ignorant question. The government says to most non-profits if you want special tax treatment, you must give up certain rights to political speech. If that is constitutional, it seems like the government could say to churches if you want special tax treatment, you too must give up the exact political speech rights. Why in the world would we privilege political speech by churches over political speech by non-churches? Leaving aside EC and EP concerns, that seems plainly wrong. Best, Eric Sent from my iPhone On May 4, 2017, at 8:09 PM, Ira Lupu <icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote: I am wondering how far Tom's notion of privilege for sermons (compared with all other communications by leaders of non-profit groups or entities) can be carried. Does anyone think that a clergyman, speaking in a sermon, has a privilege to defame a third party who is not a member of, or in any other relationship to, the worship community? How about to incite imminent violence, or to threaten others with violence? If there are no "sermon" privileges with respect to these speech wrongs, why should we treat differently those sermons that demonstrate a violation of the terms of tax exempt status? (The "ministerial exception" does not rest on a speech privilege, but let's not rehash all of that in this thread.) There is no justification for allowing tax deductible contributions to support political advocacy by paid clergy on any terms different from what is allowed to comparable spokespersons for secular non-profits. Indeed, Texas Monthly strongly suggests there is a constitutional bar on any such religious privilege in the substance of tax treatment, I am completely mindful of the concerns about spying on clergy, sending into worship services agents wearing a wire, etc. But so is the IRS. And, as I recall, leading academics have suggested that infiltration of and spying on mosques in America is completely justified by the dangers of terrorism. I think that would be a presumptively terrible idea, but the relevant standards should be no different for a mosque as compared to a meeting of the White Nationalist Party. On Thu, May 4, 2017 at 5:04 PM, Berg, Thomas C. <tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>> wrote: 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://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmail.stthomas.edu%2Fowa%2Fredir.aspx%3FC%3D6b610058a5ad42118976395f869e05d3%26URL%3Dmailto%253atcberg%2540stthomas.edu=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636295397473530238=N7JJIM1E91%2BY5JrCb8HFNhbwLpAkCO7NCiBXt7D0lwI%3D=0> SSRN: http://ssrn.com/author=261564<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fssrn.com%2Fauthor%3D261564=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636295397473530238=VcxvNDICm4MfErhl8TfBN4hPSNC4fR3NXFNYQc8oDKE%3D=0> Weblog: http://www.mirrorofjustice.blogs.com <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.mirrorofjustice.blogs.com=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7
RE: Johnson Amendment E.O.
The pending bills to amend the Johnson Amendment would apply to religious and secular charities alike. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Eric J Segall [eseg...@gsu.edu] Sent: Thursday, May 04, 2017 9:03 PM To: Law & Religion issues for Law Academics Subject: Re: Johnson Amendment E.O. I am new to this issue so pardon what might be an ignorant question. The government says to most non-profits if you want special tax treatment, you must give up certain rights to political speech. If that is constitutional, it seems like the government could say to churches if you want special tax treatment, you too must give up the exact political speech rights. Why in the world would we privilege political speech by churches over political speech by non-churches? Leaving aside EC and EP concerns, that seems plainly wrong. Best, Eric Sent from my iPhone On May 4, 2017, at 8:09 PM, Ira Lupu <icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote: I am wondering how far Tom's notion of privilege for sermons (compared with all other communications by leaders of non-profit groups or entities) can be carried. Does anyone think that a clergyman, speaking in a sermon, has a privilege to defame a third party who is not a member of, or in any other relationship to, the worship community? How about to incite imminent violence, or to threaten others with violence? If there are no "sermon" privileges with respect to these speech wrongs, why should we treat differently those sermons that demonstrate a violation of the terms of tax exempt status? (The "ministerial exception" does not rest on a speech privilege, but let's not rehash all of that in this thread.) There is no justification for allowing tax deductible contributions to support political advocacy by paid clergy on any terms different from what is allowed to comparable spokespersons for secular non-profits. Indeed, Texas Monthly strongly suggests there is a constitutional bar on any such religious privilege in the substance of tax treatment, I am completely mindful of the concerns about spying on clergy, sending into worship services agents wearing a wire, etc. But so is the IRS. And, as I recall, leading academics have suggested that infiltration of and spying on mosques in America is completely justified by the dangers of terrorism. I think that would be a presumptively terrible idea, but the relevant standards should be no different for a mosque as compared to a meeting of the White Nationalist Party. On Thu, May 4, 2017 at 5:04 PM, Berg, Thomas C. <tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>> wrote: 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://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmail.stthomas.edu%2Fowa%2Fredir.aspx%3FC%3D6b610058a5ad42118976395f869e05d3%26URL%3Dmailto%253atcberg%2540stthomas.edu=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636295397473530238=N7JJIM1E91%2BY5JrCb8HFNhbwLpAkCO7NCiBXt7D0lwI%3D=0> SSRN: http://ssrn.com/author=261564<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fssrn.com%2Fauthor%3D261564=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636295397473530238=VcxvNDICm4MfErhl8TfBN4hPSNC4fR3NXFNYQc8oDKE%3D=0> Weblog: http://www.mirrorofjustice.blogs.com <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.mirrorofjustice.blogs.com=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636295397473530238=eAw3%2BZ7F3WA6cE7sAuUlXMMCvCnjB1yxmOQ12UiMqxQ%3D=0> - From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> <religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> on behalf of Alan E Brownstein &l
Re: Johnson Amendment E.O.
I am new to this issue so pardon what might be an ignorant question. The government says to most non-profits if you want special tax treatment, you must give up certain rights to political speech. If that is constitutional, it seems like the government could say to churches if you want special tax treatment, you too must give up the exact political speech rights. Why in the world would we privilege political speech by churches over political speech by non-churches? Leaving aside EC and EP concerns, that seems plainly wrong. Best, Eric Sent from my iPhone On May 4, 2017, at 8:09 PM, Ira Lupu <icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote: I am wondering how far Tom's notion of privilege for sermons (compared with all other communications by leaders of non-profit groups or entities) can be carried. Does anyone think that a clergyman, speaking in a sermon, has a privilege to defame a third party who is not a member of, or in any other relationship to, the worship community? How about to incite imminent violence, or to threaten others with violence? If there are no "sermon" privileges with respect to these speech wrongs, why should we treat differently those sermons that demonstrate a violation of the terms of tax exempt status? (The "ministerial exception" does not rest on a speech privilege, but let's not rehash all of that in this thread.) There is no justification for allowing tax deductible contributions to support political advocacy by paid clergy on any terms different from what is allowed to comparable spokespersons for secular non-profits. Indeed, Texas Monthly strongly suggests there is a constitutional bar on any such religious privilege in the substance of tax treatment, I am completely mindful of the concerns about spying on clergy, sending into worship services agents wearing a wire, etc. But so is the IRS. And, as I recall, leading academics have suggested that infiltration of and spying on mosques in America is completely justified by the dangers of terrorism. I think that would be a presumptively terrible idea, but the relevant standards should be no different for a mosque as compared to a meeting of the White Nationalist Party. On Thu, May 4, 2017 at 5:04 PM, Berg, Thomas C. <tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>> wrote: 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://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmail.stthomas.edu%2Fowa%2Fredir.aspx%3FC%3D6b610058a5ad42118976395f869e05d3%26URL%3Dmailto%253atcberg%2540stthomas.edu=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636295397473530238=N7JJIM1E91%2BY5JrCb8HFNhbwLpAkCO7NCiBXt7D0lwI%3D=0> SSRN: http://ssrn.com/author=261564<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fssrn.com%2Fauthor%3D261564=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636295397473530238=VcxvNDICm4MfErhl8TfBN4hPSNC4fR3NXFNYQc8oDKE%3D=0> Weblog: http://www.mirrorofjustice.blogs.com <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.mirrorofjustice.blogs.com=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636295397473530238=eAw3%2BZ7F3WA6cE7sAuUlXMMCvCnjB1yxmOQ12UiMqxQ%3D=0> - From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> <religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> on behalf of Alan E Brownstein <aebrownst...@ucdavis.edu<mailto: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 religi
Re: Johnson Amendment E.O.
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=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 tha
Re: Johnson Amendment E.O.
I am wondering how far Tom's notion of privilege for sermons (compared with all other communications by leaders of non-profit groups or entities) can be carried. Does anyone think that a clergyman, speaking in a sermon, has a privilege to defame a third party who is not a member of, or in any other relationship to, the worship community? How about to incite imminent violence, or to threaten others with violence? If there are no "sermon" privileges with respect to these speech wrongs, why should we treat differently those sermons that demonstrate a violation of the terms of tax exempt status? (The "ministerial exception" does not rest on a speech privilege, but let's not rehash all of that in this thread.) There is no justification for allowing tax deductible contributions to support political advocacy by paid clergy on any terms different from what is allowed to comparable spokespersons for secular non-profits. Indeed, Texas Monthly strongly suggests there is a constitutional bar on any such religious privilege in the substance of tax treatment, I am completely mindful of the concerns about spying on clergy, sending into worship services agents wearing a wire, etc. But so is the IRS. And, as I recall, leading academics have suggested that infiltration of and spying on mosques in America is completely justified by the dangers of terrorism. I think that would be a presumptively terrible idea, but the relevant standards should be no different for a mosque as compared to a meeting of the White Nationalist Party. On Thu, May 4, 2017 at 5:04 PM, Berg, Thomas C. <tcb...@stthomas.edu> wrote: > 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=mailto%3atcberg%40stthomas.edu> > SSRN: http://ssrn.com/author=261564 > Weblog: http://www.mirrorofjustice.blogs.com > > - > -- > *From:* religionlaw-boun...@lists.ucla.edu <religionlaw-bounces@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
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=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 unconstitutiona
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=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 scrut
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=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 politi
RE: Johnson Amendment E.O.
That’s right. But an EO generates a bigger press release. Most of his EOs have just been instructions to others to think about something. 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 Saperstein, David Sent: Thursday, May 4, 2017 2:54 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Johnson Amendment E.O. But he didn't need an EO to instruct his Secretaries. Sent from my iPhone On May 4, 2017, at 2:50 PM, Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote: Agreed. There is nothing of substance here. Maybe more from the agencies down the road. 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> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Thursday, May 4, 2017 1:55 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: Johnson Amendment E.O. Never mind!: https://takecareblog.com/blog/this-executive-order-on-religion-is-thankfully-a-dud ___ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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 e
Re: Johnson Amendment E.O.
But he didn't need an EO to instruct his Secretaries. Sent from my iPhone On May 4, 2017, at 2:50 PM, Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote: Agreed. There is nothing of substance here. Maybe more from the agencies down the road. 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> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Thursday, May 4, 2017 1:55 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: Johnson Amendment E.O. Never mind!: https://takecareblog.com/blog/this-executive-order-on-religion-is-thankfully-a-dud ___ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Johnson Amendment E.O.
Agreed. There is nothing of substance here. Maybe more from the agencies down the road. 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 1:55 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Johnson Amendment E.O. Never mind!: https://takecareblog.com/blog/this-executive-order-on-religion-is-thankfully-a-dud ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Johnson Amendment E.O.
t;>> summarized in the CRS report he links to. >>> >>> >>> >>> There is an ambiguity at the end of the paragraph that begins “notably.” >>> Contributions to the 501(c)(4) would not be tax deductible. Creating the >>> 501(c)(4) would not change the status of the original 501(c)(3). >>> >>> >>> >>> The DC Circuit in *Branch Ministries* upheld the Johnson Amendment as >>> applied to political expenditures. The hard issue of cost-free endorsements >>> in sermons was not presented. >>> >>> >>> >>> Is there any reason to think that the IRS is pursuing cost-free >>> endorsements by secular non-profits? If not, there is no discrimination to >>> trigger Marty’s Establishment Clause argument about current enforcement >>> policy. I have never seen any account of such a case against a secular >>> non-profit. >>> >>> >>> >>> The real problem with what Marty anticipates from the EO is this: Since >>> the IRS already has an implicit policy of non-enforcement with respect to >>> cost-free endorsements, the only possible effect of the EO is to direct >>> non-enforcement with respect to political expenditures of money. And that >>> would open up an enormous loophole in campaign finance regulation and in >>> the rule that political expenditures are not tax deductible. >>> >>> >>> >>> A House Subcommittee is holding hearings this morning on the bills to >>> repeal or amend the Johnson Amendment. >>> >>> >>> >>> Shameless plug: I wrote about the Johnson Amendment here: >>> https://www.christiancentury.org/article/dont-repeal-johnson >>> -amendment-fix-it >>> >>> >>> >>> Douglas Laycock >>> >>> Robert E. Scott Distinguished Professor of Law >>> >>> University of Virginia Law School >>> >>> 580 Massie Road >>> >>> Charlottesville, VA 22903 >>> >>> 434-243-8546 <(434)%20243-8546> >>> >>> >>> >>> *From:* religionlaw-boun...@lists.ucla.edu [mailto: >>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman >>> *Sent:* Thursday, May 4, 2017 8:56 AM >>> *To:* Law & Religion issues for Law Academics < >>> religionlaw@lists.ucla.edu> >>> *Subject:* Johnson Amendment E.O. >>> >>> >>> >>> FYI: >>> >>> >>> >>> https://takecareblog.com/blog/what-s-all-this-fuss-about-the >>> -johnson-amendment >>> >>> >>> >>> Please let me know if you notice any mistakes, thanks. >>> >>> >>> >>> -- >>> >>> Marty Lederman >>> >>> Georgetown University Law Center >>> >>> 600 New Jersey Avenue, NW >>> >>> Washington, DC 20001 >>> >>> 202-662-9937 <(202)%20662-9937> >>> >>> >>> >>> ___ >>> To post, send message to Religionlaw@lists.ucla.edu >>> To subscribe, unsubscribe, change options, or get password, see >>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>> >>> Please note that messages sent to this large list cannot be viewed as >>> private. Anyone can subscribe to the list and read messages that are >>> posted; people can read the Web archives; and list members can (rightly or >>> wrongly) forward the messages to others. >>> >> >> >> >> -- >> Marty Lederman >> Georgetown University Law Center >> 600 New Jersey Avenue, NW >> Washington, DC 20001 >> 202-662-9937 <(202)%20662-9937> >> >> > > > -- > Marty Lederman > Georgetown University Law Center > 600 New Jersey Avenue, NW > Washington, DC 20001 > 202-662-9937 <(202)%20662-9937> > > -- Marty Lederman Georgetown University Law Center 600 New Jersey Avenue, NW Washington, DC 20001 202-662-9937 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Johnson Amendment E.O.
;> >> >> Is there any reason to think that the IRS is pursuing cost-free >> endorsements by secular non-profits? If not, there is no discrimination to >> trigger Marty’s Establishment Clause argument about current enforcement >> policy. I have never seen any account of such a case against a secular >> non-profit. >> >> >> >> The real problem with what Marty anticipates from the EO is this: Since >> the IRS already has an implicit policy of non-enforcement with respect to >> cost-free endorsements, the only possible effect of the EO is to direct >> non-enforcement with respect to political expenditures of money. And that >> would open up an enormous loophole in campaign finance regulation and in >> the rule that political expenditures are not tax deductible. >> >> >> >> A House Subcommittee is holding hearings this morning on the bills to >> repeal or amend the Johnson Amendment. >> >> >> >> Shameless plug: I wrote about the Johnson Amendment here: >> https://www.christiancentury.org/article/dont-repeal-johnson >> -amendment-fix-it >> >> >> >> Douglas Laycock >> >> Robert E. Scott Distinguished Professor of Law >> >> University of Virginia Law School >> >> 580 Massie Road >> >> Charlottesville, VA 22903 >> >> 434-243-8546 <(434)%20243-8546> >> >> >> >> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@li >> sts.ucla.edu] *On Behalf Of *Marty Lederman >> *Sent:* Thursday, May 4, 2017 8:56 AM >> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu >> > >> *Subject:* Johnson Amendment E.O. >> >> >> >> FYI: >> >> >> >> https://takecareblog.com/blog/what-s-all-this-fuss-about-the >> -johnson-amendment >> >> >> >> Please let me know if you notice any mistakes, thanks. >> >> >> >> -- >> >> Marty Lederman >> >> Georgetown University Law Center >> >> 600 New Jersey Avenue, NW >> >> Washington, DC 20001 >> >> 202-662-9937 <(202)%20662-9937> >> >> >> >> ___ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. >> > > > > -- > Marty Lederman > Georgetown University Law Center > 600 New Jersey Avenue, NW > Washington, DC 20001 > 202-662-9937 <(202)%20662-9937> > > -- Marty Lederman Georgetown University Law Center 600 New Jersey Avenue, NW Washington, DC 20001 202-662-9937 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Johnson Amendment E.O.
I am not aware of anything like the ADF’s attempt to provoke a test case going on in the secular sector. But policy oriented 501(c)(3)s, which can engage in public education on their issue, probably violate the rules against implicit endorsements with some frequency. And they probably spend money on mass communications when they do it. Maybe they avoid trouble by talking about parties or movements (the religious right) instead of candidates by name. But it’s hard to imagine that none of them made fundraising appeals based on the threat to the country posed by Donald Trump or Hillary Clinton. 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 11:19 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Johnson Amendment E.O. Doug asks: "Is there any reason to think that the IRS is pursuing cost-free endorsements by secular non-profits? If not, there is no discrimination to trigger Marty’s Establishment Clause argument about current enforcement policy. I have never seen any account of such a case against a secular non-profit." I agree -- if the IRS were to look the other way whenever (c)(3)'s of all stripes endorse candidates, then that wouldn't violate the First Amendment. But is there any reason to think that other (c)(3)'s, i.e., other than churches, engage in such widespread, conspicuous violations of the law, let alone that the IRS turns a blind eye to them? Not a rhetorical question: I'm genuinely unaware of any such phenomenon, and would be grateful for any further information. On Thu, May 4, 2017 at 10:21 AM, Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote: Unless there has been some recent change in IRS policy that I don’t know about and that Marty does not suggest, the Amendment is not limited to “express” endorsements. The IRS jawboning, which is its only enforcement effort, describes many things that it views as implicit endorsements, such as voter guides that focus on issues of concern to the church, or comparisons of candidate positions to church positions. These are summarized in the CRS report he links to. There is an ambiguity at the end of the paragraph that begins “notably.” Contributions to the 501(c)(4) would not be tax deductible. Creating the 501(c)(4) would not change the status of the original 501(c)(3). The DC Circuit in Branch Ministries upheld the Johnson Amendment as applied to political expenditures. The hard issue of cost-free endorsements in sermons was not presented. Is there any reason to think that the IRS is pursuing cost-free endorsements by secular non-profits? If not, there is no discrimination to trigger Marty’s Establishment Clause argument about current enforcement policy. I have never seen any account of such a case against a secular non-profit. The real problem with what Marty anticipates from the EO is this: Since the IRS already has an implicit policy of non-enforcement with respect to cost-free endorsements, the only possible effect of the EO is to direct non-enforcement with respect to political expenditures of money. And that would open up an enormous loophole in campaign finance regulation and in the rule that political expenditures are not tax deductible. A House Subcommittee is holding hearings this morning on the bills to repeal or amend the Johnson Amendment. Shameless plug: I wrote about the Johnson Amendment here: https://www.christiancentury.org/article/dont-repeal-johnson-amendment-fix-it Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546<tel:(434)%20243-8546> From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Marty Lederman Sent: Thursday, May 4, 2017 8:56 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Johnson Amendment E.O. FYI: https://takecareblog.com/blog/what-s-all-this-fuss-about-the-johnson-amendment Please let me know if you notice any mistakes, thanks. -- Marty Lederman Georgetown University Law Center 600 New Jersey Avenue, NW Washington, DC 20001 202-662-9937<tel:(202)%20662-9937> ___ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list can
Re: Johnson Amendment E.O.
I'm afraid I don't quite understand Doug's other point, which appears to be that the no-political-activity condition should not be construed to extend to sermons (or Congress should amend the law to exclude sermons) because churches don't spend money on sermons. But of course churches spend money on sermons--indeed, that is among the functions *for which* *they are afforded tax benefits*. The government subsidizes the "religious" activities of churches, for the reasons described in *Walz *(i.e., they're presumptively analogous to the also-benefited charitable, educational, etc., activities of other organizations within the class). Paying for clergy is certainly within that category of activities that are afforded the tax benefits. But Congress has decided that although it's perfectly happy to pay for other sermons by clergy--just as it pays for plenty of speech by other nonprofits--it doesn't want to subsidize specifically partisan endorsements, by churches or any other (c)(3)s. On Thu, May 4, 2017 at 10:21 AM, Laycock, H Douglas (hdl5c) < hd...@virginia.edu> wrote: > Unless there has been some recent change in IRS policy that I don’t know > about and that Marty does not suggest, the Amendment is not limited to > “express” endorsements. The IRS jawboning, which is its only enforcement > effort, describes many things that it views as implicit endorsements, such > as voter guides that focus on issues of concern to the church, or > comparisons of candidate positions to church positions. These are > summarized in the CRS report he links to. > > > > There is an ambiguity at the end of the paragraph that begins “notably.” > Contributions to the 501(c)(4) would not be tax deductible. Creating the > 501(c)(4) would not change the status of the original 501(c)(3). > > > > The DC Circuit in *Branch Ministries* upheld the Johnson Amendment as > applied to political expenditures. The hard issue of cost-free endorsements > in sermons was not presented. > > > > Is there any reason to think that the IRS is pursuing cost-free > endorsements by secular non-profits? If not, there is no discrimination to > trigger Marty’s Establishment Clause argument about current enforcement > policy. I have never seen any account of such a case against a secular > non-profit. > > > > The real problem with what Marty anticipates from the EO is this: Since > the IRS already has an implicit policy of non-enforcement with respect to > cost-free endorsements, the only possible effect of the EO is to direct > non-enforcement with respect to political expenditures of money. And that > would open up an enormous loophole in campaign finance regulation and in > the rule that political expenditures are not tax deductible. > > > > A House Subcommittee is holding hearings this morning on the bills to > repeal or amend the Johnson Amendment. > > > > Shameless plug: I wrote about the Johnson Amendment here: > https://www.christiancentury.org/article/dont-repeal- > johnson-amendment-fix-it > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 <(434)%20243-8546> > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@ > lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Thursday, May 4, 2017 8:56 AM > *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject:* Johnson Amendment E.O. > > > > FYI: > > > > https://takecareblog.com/blog/what-s-all-this-fuss-about- > the-johnson-amendment > > > > Please let me know if you notice any mistakes, thanks. > > > > -- > > Marty Lederman > > Georgetown University Law Center > > 600 New Jersey Avenue, NW > > Washington, DC 20001 > > 202-662-9937 <(202)%20662-9937> > > > > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Marty Lederman Georgetown University Law Center 600 New Jersey Avenue, NW Washington, DC 20001 202-662-9937 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Johnson Amendment E.O.
Doug asks: "Is there any reason to think that the IRS is pursuing cost-free endorsements by secular non-profits? If not, there is no discrimination to trigger Marty’s Establishment Clause argument about current enforcement policy. I have never seen any account of such a case against a secular non-profit." I agree -- if the IRS were to look the other way whenever (c)(3)'s of all stripes endorse candidates, then that wouldn't violate the First Amendment. But is there any reason to think that other (c)(3)'s, i.e., other than churches, engage in such widespread, conspicuous violations of the law, let alone that the IRS turns a blind eye to them? Not a rhetorical question: I'm genuinely unaware of any such phenomenon, and would be grateful for any further information. On Thu, May 4, 2017 at 10:21 AM, Laycock, H Douglas (hdl5c) < hd...@virginia.edu> wrote: > Unless there has been some recent change in IRS policy that I don’t know > about and that Marty does not suggest, the Amendment is not limited to > “express” endorsements. The IRS jawboning, which is its only enforcement > effort, describes many things that it views as implicit endorsements, such > as voter guides that focus on issues of concern to the church, or > comparisons of candidate positions to church positions. These are > summarized in the CRS report he links to. > > > > There is an ambiguity at the end of the paragraph that begins “notably.” > Contributions to the 501(c)(4) would not be tax deductible. Creating the > 501(c)(4) would not change the status of the original 501(c)(3). > > > > The DC Circuit in *Branch Ministries* upheld the Johnson Amendment as > applied to political expenditures. The hard issue of cost-free endorsements > in sermons was not presented. > > > > Is there any reason to think that the IRS is pursuing cost-free > endorsements by secular non-profits? If not, there is no discrimination to > trigger Marty’s Establishment Clause argument about current enforcement > policy. I have never seen any account of such a case against a secular > non-profit. > > > > The real problem with what Marty anticipates from the EO is this: Since > the IRS already has an implicit policy of non-enforcement with respect to > cost-free endorsements, the only possible effect of the EO is to direct > non-enforcement with respect to political expenditures of money. And that > would open up an enormous loophole in campaign finance regulation and in > the rule that political expenditures are not tax deductible. > > > > A House Subcommittee is holding hearings this morning on the bills to > repeal or amend the Johnson Amendment. > > > > Shameless plug: I wrote about the Johnson Amendment here: > https://www.christiancentury.org/article/dont-repeal- > johnson-amendment-fix-it > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 <(434)%20243-8546> > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@ > lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Thursday, May 4, 2017 8:56 AM > *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject:* Johnson Amendment E.O. > > > > FYI: > > > > https://takecareblog.com/blog/what-s-all-this-fuss-about- > the-johnson-amendment > > > > Please let me know if you notice any mistakes, thanks. > > > > -- > > Marty Lederman > > Georgetown University Law Center > > 600 New Jersey Avenue, NW > > Washington, DC 20001 > > 202-662-9937 <(202)%20662-9937> > > > > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Marty Lederman Georgetown University Law Center 600 New Jersey Avenue, NW Washington, DC 20001 202-662-9937 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Johnson Amendment E.O.
Depends entirely on whether Justice Alito gets his way. e From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> on behalf of David Cruz <dc...@law.usc.edu> Sent: Thursday, May 4, 2017 11:12:19 AM To: Law & Religion issues for Law Academics Subject: Re: Johnson Amendment E.O. (This) one would hope. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: <religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman <martin.leder...@law.georgetown.edu> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Date: Thursday, May 4, 2017 at 8:08 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Johnson Amendment E.O. Well, if Hobby Lobby's dictum that RFRA radically altered the pre-Smith law were correct, that'd be one thing. But it's not<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect.cudasvc.com%2Furl%3Fa%3Dhttp%3A%2F%2Fwww.yalelawjournal.org%2Fpdf%2FLederman_PDF_pt9q3ynr.pdf%26c%3DE%2C1%2CiMd0PJIp536dQdUOyub6icCVtL1zxFP2DLkvQKF9fQyXhg-_0AOMU0BI5Df7ETM0SiuV-5gYFV_ktiI_0FKbkUnZpaY0BukzrlHsUJAkA-qZV82VdRgk%26typo%3D1=02%7C01%7Cesegall%40gsu.edu%7C1158f4ebdad44687ccbe08d492ffcd18%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C636295074730358655=a8fVsphcKVt1tUBBfV1U2mb4U%2ByiEjILPBQw7gzgAwg%3D=0>. And therefore doesn't the unanimous "no burden" holding in Jimmy Swaggart, cited by the court in Rossetti, pretty much settle the question? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Johnson Amendment E.O.
(This) one would hope. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: <religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman <martin.leder...@law.georgetown.edu> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Date: Thursday, May 4, 2017 at 8:08 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Johnson Amendment E.O. Well, if Hobby Lobby's dictum that RFRA radically altered the pre-Smith law were correct, that'd be one thing. But it's not<https://linkprotect.cudasvc.com/url?a=http://www.yalelawjournal.org/pdf/Lederman_PDF_pt9q3ynr.pdf=E,1,iMd0PJIp536dQdUOyub6icCVtL1zxFP2DLkvQKF9fQyXhg-_0AOMU0BI5Df7ETM0SiuV-5gYFV_ktiI_0FKbkUnZpaY0BukzrlHsUJAkA-qZV82VdRgk=1>. And therefore doesn't the unanimous "no burden" holding in Jimmy Swaggart, cited by the court in Rossetti, pretty much settle the question? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Johnson Amendment E.O.
Well, if *Hobby Lobby*'s dictum that RFRA radically altered the pre-*Smith *law were correct, that'd be one thing. But it's not <http://www.yalelawjournal.org/pdf/Lederman_PDF_pt9q3ynr.pdf>. And therefore doesn't the *unanimous *"no burden" holding in *Jimmy Swaggart*, cited by the court in *Rossetti*, pretty much settle the question? On Thu, May 4, 2017 at 11:01 AM, David Cruz <dc...@law.usc.edu> wrote: > I agree on avoidance and RFRA. I’m just trying to work out for myself how > to square *Branch Ministries* with the expansive analysis in *Hobby Lobby*. > Maybe subsidy (vs. penalty?) does the trick; I’ll have to think more on > this. > > > > > > David B. Cruz > > Professor of Law > > University of Southern California Gould School of Law > > Los Angeles, CA 90089-0071 > > U.S.A. > > > > > > *From: *<religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman < > martin.leder...@law.georgetown.edu> > *Reply-To: *Law & Religion issues for Law Academics < > religionlaw@lists.ucla.edu> > *Date: *Thursday, May 4, 2017 at 7:54 AM > *To: *Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject: *Re: Johnson Amendment E.O. > > > > That, as the court of appeals explained, the only legal ramification of so > speaking would be that the church would then be treated the same as > everyone else who speaks likewise--i.e., it'd get major tax benefits, but > contributions wouldn't be tax-deductible. The fact that the state would > not provide such a dramatic * subsidy *for such speech would not > substantially burden that speech, any more than it would burden similarly > motivated speech by an individual, for-profit corporation, or other kind of > association. > > > > But even if you disagree, and would find a substantial burden, it would > still be unconstitutional to give churches special political-speech > rights--and avoiding that constitutional violation means the government > ought to win under RFRA. > > > > On Thu, May 4, 2017 at 10:47 AM, David Cruz <dc...@law.usc.edu> wrote: > > In *Branch Ministries*, “the Church d[id] not maintain that a withdrawal > from electoral politics would violate its beliefs.” 211 F.3d at 142. This > fact played a role in the court’s “no substantial burden” reasoning. If a > Church did so maintain today, Marty, what extra analysis would you endorse > that leads to your conclusion that “the Johnson Amendment does not > substantially burden the religious activity of a religious organization—and > therefore does not raise any serious Free Exercise or RFRA questions—*even > if the organization believes that partisan politicking is a significant > component of its religious mission*” (emphasis added)? > > > > -David > > > > David B. Cruz > > Professor of Law > > University of Southern California Gould School of Law > > Los Angeles, CA 90089-0071 > > U.S.A. > > > > > > *From: *<religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman < > martin.leder...@law.georgetown.edu> > *Reply-To: *Law & Religion issues for Law Academics < > religionlaw@lists.ucla.edu> > *Date: *Thursday, May 4, 2017 at 5:55 AM > *To: *Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject: *Johnson Amendment E.O. > > > > FYI: > > > > https://takecareblog.com/blog/what-s-all-this-fuss-about- > the-johnson-amendment > <https://linkprotect.cudasvc.com/url?a=https://takecareblog.com/blog/what-s-all-this-fuss-about-the-johnson-amendment=E,1,_-sdTULXZVit5esk1q9CjqIQ45Hv-72LSCkoXZJo7hv5uv1DHfbFMEm6GIi2LKzeCRtpTbEAgpKulNuz3qbbj-ZFFa7_lpo_LXO7k_TYT1o8J00,=1> > > > > Please let me know if you notice any mistakes, thanks. > > > > -- > > Marty Lederman > > Georgetown University Law Center > > 600 New Jersey Avenue, NW > > Washington, DC 20001 > > 202-662-9937 <(202)%20662-9937> > > > > > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > > > > > > -- > > Marty Lederman > > Georgetown University Law Center > > 600 New Jersey Avenue, NW > > Washington, DC 20001 > > 202-662-9937 <(202)%2
Re: Johnson Amendment E.O.
I agree on avoidance and RFRA. I’m just trying to work out for myself how to square Branch Ministries with the expansive analysis in Hobby Lobby. Maybe subsidy (vs. penalty?) does the trick; I’ll have to think more on this. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: <religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman <martin.leder...@law.georgetown.edu> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Date: Thursday, May 4, 2017 at 7:54 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Johnson Amendment E.O. That, as the court of appeals explained, the only legal ramification of so speaking would be that the church would then be treated the same as everyone else who speaks likewise--i.e., it'd get major tax benefits, but contributions wouldn't be tax-deductible. The fact that the state would not provide such a dramatic subsidy for such speech would not substantially burden that speech, any more than it would burden similarly motivated speech by an individual, for-profit corporation, or other kind of association. But even if you disagree, and would find a substantial burden, it would still be unconstitutional to give churches special political-speech rights--and avoiding that constitutional violation means the government ought to win under RFRA. On Thu, May 4, 2017 at 10:47 AM, David Cruz <dc...@law.usc.edu<mailto:dc...@law.usc.edu>> wrote: In Branch Ministries, “the Church d[id] not maintain that a withdrawal from electoral politics would violate its beliefs.” 211 F.3d at 142. This fact played a role in the court’s “no substantial burden” reasoning. If a Church did so maintain today, Marty, what extra analysis would you endorse that leads to your conclusion that “the Johnson Amendment does not substantially burden the religious activity of a religious organization—and therefore does not raise any serious Free Exercise or RFRA questions—even if the organization believes that partisan politicking is a significant component of its religious mission” (emphasis added)? -David David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: <religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> on behalf of Marty Lederman <martin.leder...@law.georgetown.edu<mailto:martin.leder...@law.georgetown.edu>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Thursday, May 4, 2017 at 5:55 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Johnson Amendment E.O. FYI: https://takecareblog.com/blog/what-s-all-this-fuss-about-the-johnson-amendment<https://linkprotect.cudasvc.com/url?a=https://takecareblog.com/blog/what-s-all-this-fuss-about-the-johnson-amendment=E,1,_-sdTULXZVit5esk1q9CjqIQ45Hv-72LSCkoXZJo7hv5uv1DHfbFMEm6GIi2LKzeCRtpTbEAgpKulNuz3qbbj-ZFFa7_lpo_LXO7k_TYT1o8J00,=1> Please let me know if you notice any mistakes, thanks. -- Marty Lederman Georgetown University Law Center 600 New Jersey Avenue, NW Washington, DC 20001 202-662-9937<tel:(202)%20662-9937> ___ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Marty Lederman Georgetown University Law Center 600 New Jersey Avenue, NW Washington, DC 20001 202-662-9937 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Johnson Amendment E.O.
That, as the court of appeals explained, the only legal ramification of so speaking would be that the church would then be treated the same as everyone else who speaks likewise--i.e., it'd get major tax benefits, but contributions wouldn't be tax-deductible. The fact that the state would not provide such a dramatic *subsidy *for such speech would not substantially burden that speech, any more than it would burden similarly motivated speech by an individual, for-profit corporation, or other kind of association. But even if you disagree, and would find a substantial burden, it would still be unconstitutional to give churches special political-speech rights--and avoiding that constitutional violation means the government ought to win under RFRA. On Thu, May 4, 2017 at 10:47 AM, David Cruz <dc...@law.usc.edu> wrote: > In *Branch Ministries*, “the Church d[id] not maintain that a withdrawal > from electoral politics would violate its beliefs.” 211 F.3d at 142. This > fact played a role in the court’s “no substantial burden” reasoning. If a > Church did so maintain today, Marty, what extra analysis would you endorse > that leads to your conclusion that “the Johnson Amendment does not > substantially burden the religious activity of a religious organization—and > therefore does not raise any serious Free Exercise or RFRA questions—*even > if the organization believes that partisan politicking is a significant > component of its religious mission*” (emphasis added)? > > > > -David > > > > David B. Cruz > > Professor of Law > > University of Southern California Gould School of Law > > Los Angeles, CA 90089-0071 > > U.S.A. > > > > > > *From: *<religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman < > martin.leder...@law.georgetown.edu> > *Reply-To: *Law & Religion issues for Law Academics < > religionlaw@lists.ucla.edu> > *Date: *Thursday, May 4, 2017 at 5:55 AM > *To: *Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject: *Johnson Amendment E.O. > > > > FYI: > > > > https://takecareblog.com/blog/what-s-all-this-fuss-about- > the-johnson-amendment > <https://linkprotect.cudasvc.com/url?a=https://takecareblog.com/blog/what-s-all-this-fuss-about-the-johnson-amendment=E,1,_-sdTULXZVit5esk1q9CjqIQ45Hv-72LSCkoXZJo7hv5uv1DHfbFMEm6GIi2LKzeCRtpTbEAgpKulNuz3qbbj-ZFFa7_lpo_LXO7k_TYT1o8J00,=1> > > > > Please let me know if you notice any mistakes, thanks. > > > > -- > > Marty Lederman > > Georgetown University Law Center > > 600 New Jersey Avenue, NW > > Washington, DC 20001 > > 202-662-9937 <(202)%20662-9937> > > > > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Marty Lederman Georgetown University Law Center 600 New Jersey Avenue, NW Washington, DC 20001 202-662-9937 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Johnson Amendment E.O.
In Branch Ministries, “the Church d[id] not maintain that a withdrawal from electoral politics would violate its beliefs.” 211 F.3d at 142. This fact played a role in the court’s “no substantial burden” reasoning. If a Church did so maintain today, Marty, what extra analysis would you endorse that leads to your conclusion that “the Johnson Amendment does not substantially burden the religious activity of a religious organization—and therefore does not raise any serious Free Exercise or RFRA questions—even if the organization believes that partisan politicking is a significant component of its religious mission” (emphasis added)? -David David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: <religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman <martin.leder...@law.georgetown.edu> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Date: Thursday, May 4, 2017 at 5:55 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Johnson Amendment E.O. FYI: https://takecareblog.com/blog/what-s-all-this-fuss-about-the-johnson-amendment<https://linkprotect.cudasvc.com/url?a=https://takecareblog.com/blog/what-s-all-this-fuss-about-the-johnson-amendment=E,1,_-sdTULXZVit5esk1q9CjqIQ45Hv-72LSCkoXZJo7hv5uv1DHfbFMEm6GIi2LKzeCRtpTbEAgpKulNuz3qbbj-ZFFa7_lpo_LXO7k_TYT1o8J00,=1> Please let me know if you notice any mistakes, thanks. -- Marty Lederman Georgetown University Law Center 600 New Jersey Avenue, NW Washington, DC 20001 202-662-9937 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Johnson Amendment E.O.
Unless there has been some recent change in IRS policy that I don’t know about and that Marty does not suggest, the Amendment is not limited to “express” endorsements. The IRS jawboning, which is its only enforcement effort, describes many things that it views as implicit endorsements, such as voter guides that focus on issues of concern to the church, or comparisons of candidate positions to church positions. These are summarized in the CRS report he links to. There is an ambiguity at the end of the paragraph that begins “notably.” Contributions to the 501(c)(4) would not be tax deductible. Creating the 501(c)(4) would not change the status of the original 501(c)(3). The DC Circuit in Branch Ministries upheld the Johnson Amendment as applied to political expenditures. The hard issue of cost-free endorsements in sermons was not presented. Is there any reason to think that the IRS is pursuing cost-free endorsements by secular non-profits? If not, there is no discrimination to trigger Marty’s Establishment Clause argument about current enforcement policy. I have never seen any account of such a case against a secular non-profit. The real problem with what Marty anticipates from the EO is this: Since the IRS already has an implicit policy of non-enforcement with respect to cost-free endorsements, the only possible effect of the EO is to direct non-enforcement with respect to political expenditures of money. And that would open up an enormous loophole in campaign finance regulation and in the rule that political expenditures are not tax deductible. A House Subcommittee is holding hearings this morning on the bills to repeal or amend the Johnson Amendment. Shameless plug: I wrote about the Johnson Amendment here: https://www.christiancentury.org/article/dont-repeal-johnson-amendment-fix-it 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 8:56 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Johnson Amendment E.O. FYI: https://takecareblog.com/blog/what-s-all-this-fuss-about-the-johnson-amendment Please let me know if you notice any mistakes, thanks. -- Marty Lederman Georgetown University Law Center 600 New Jersey Avenue, NW Washington, DC 20001 202-662-9937 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Johnson Amendment E.O.
FYI: https://takecareblog.com/blog/what-s-all-this-fuss-about-the-johnson-amendment Please let me know if you notice any mistakes, thanks. -- Marty Lederman Georgetown University Law Center 600 New Jersey Avenue, NW Washington, DC 20001 202-662-9937 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.