Re: Johnson Amendment E.O.

[Michael Peabody]

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.

[Berg, Thomas C.]

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.

[Alan E Brownstein]

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.

[Berg, Thomas C.]

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.

[Eric J Segall]

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.

[Laycock, H Douglas (hdl5c)]

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.

[Eric J Segall]

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.

[Berg, Thomas C.]

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.

[Ira Lupu]

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.

[Alan E Brownstein]

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.

[Alan E Brownstein]

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.

[Berg, Thomas C.]

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.

[Laycock, H Douglas (hdl5c)]

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

___
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Re: Johnson Amendment E.O.

[Alan E Brownstein]

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.

[Saperstein, David]

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>
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RE: Johnson Amendment E.O.

[Laycock, H Douglas (hdl5c)]

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 
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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 
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Re: Johnson Amendment E.O.

[Marty Lederman]

Never mind!:

https://takecareblog.com/blog/this-executive-order-on-religion-is-thankfully-a-dud

On Thu, May 4, 2017 at 11:53 AM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> Just came across this from David Saperstein’s testimony
> 
> 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.
>
>
>
> On Thu, May 4, 2017 at 11:29 AM, Marty Lederman  georgetown.edu> wrote:
>
>> 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 

RE: Johnson Amendment E.O.

[Laycock, H Douglas (hdl5c)]

Those are troubling hypotheticals. I don't think they are as troubling as 
telling a minister, priest, or rabbi what he can preach about.



If it's just a front that does nothing but politics, it is not covered by the 
bills to exempt endorsements in the ordinary course of the organization’s 
activities and with no more than a de minimis marginal cost. There has to be 
some other ordinary activity that the political speech is in the course of. The 
phone bank is not in the ordinary course of the church’s activities. And that 
requirement could be strengthened, although enforcement might be difficult.



The bona fide religious, educational, or charitable purpose puts some 
constraints on hijacking it just for political purposes; many of the folks 
involved for the original purpose get resentful and leave. I assume that's why 
churches don't do all the things they could do now. They don't create church 
PACs, although they could, and I don't hear stories of them doing the sorts of 
things David imagines, although enforcement is lax.



Which is not to say that there wouldn’t be occasional abuses; some are probably 
inevitable.


Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, May 4, 2017 11:54 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Johnson Amendment E.O.

Just came across this from David Saperstein’s 
testimony<https://oversight.house.gov/wp-content/uploads/2017/05/Saperstein_Testimony_05042017.pdf>
 today.  He makes the point much better than I did--I would only add that 
virtually all of his hypos could be extended beyond the church, to countless 
activities of all 501(c)(3) organizations:
Let me offer some hypotheticals of the implications of a proposal that says any 
statement is allowed that does not involve extra expenses:

Suppose instead of one sermon, in every scheduled sermon for the half-year 
running up to the election, the pastor(s) endorses various candidates and 
reiterates those endorsements?

Suppose in every regular bulletin and regular email over those six months, the 
pastor or church leaders focus on endorsements of a party or a candidate(s)?

Suppose with the costs of local calls being de minimis these days, they allow 
their phones to be used for campaign phone banks?

Suppose a church has their congregants fill out cards for the offerings for 
later tax verification (putting their money and card in an envelope which they 
hand in) — and the church then adds envelopes and cards to fill out for 
contributions to the candidates they endorse and collect those with the 
offerings and someone from the campaign comes by every week and collects them.

Or suppose the President of Notre Dame or Catholic University adds a single 
sentence to their regular email to their scores of thousands of alumni : “I 
believe based on sound religious reasoning you should all vote for Candidate A 
and oppose Candidate B.”

Certainly de minimis but is that how tax deductible money should be used? In 
each of these there is no extra funding bulletins or emails, collecting 
offerings) what they would normally do.

Are proponents of this legislation arguing that although you might disapprove 
on other grounds, that as far as the law is concerned, this ought to be allowed 
because it really doesn’t constitute using tax exempt and tax deductible 
funding for partisan political purposes? What is the cumulative value of the 
salaries and the overhead of the congregation in making this electioneering 
possible? If the church is funded by tax deductible contributions, are not 
these contributions subsidizing this electoral activity? If the church has the 
benefit of tax exemption to support its eleomosynary work, does not the tax 
exemption support everything the church does including its endorsement 
activities? Everything about the church is subsidized by tax exempt and tax 
deductible money. And that is as true of one sermon as six months of sermons; 
of one bulletin as six months of bulletins.


___
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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.

[Marty Lederman]

Just came across this from David Saperstein’s testimony

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.



On Thu, May 4, 2017 at 11:29 AM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> 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 

RE: Johnson Amendment E.O.

[Laycock, H Douglas (hdl5c)]

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>


___
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Re: Johnson Amendment E.O.

[Marty Lederman]

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 
> *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 
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Re: Johnson Amendment E.O.

[Marty Lederman]

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 
> *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 
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messages to others.

Re: Johnson Amendment E.O.

[Eric J Segall]

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
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Re: Johnson Amendment E.O.

[David Cruz]

(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 
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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.

[Marty Lederman]

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.

[David Cruz]

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 
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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 
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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.

[Marty Lederman]

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  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: * 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 
> *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 
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Re: Johnson Amendment E.O.

[David Cruz]

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:  on behalf of Marty Lederman 

Reply-To: Law & Religion issues for Law Academics 
Date: Thursday, May 4, 2017 at 5:55 AM
To: Law & Religion issues for Law Academics 
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

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RE: Johnson Amendment E.O.

[Laycock, H Douglas (hdl5c)]

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 
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

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