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.  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
> 
> SSRN: http://ssrn.com/author=261564
> Weblog: http://www.mirrorofjustice.blogs.com
> 
> -
> --
> *From:* religionlaw-boun...@lists.ucla.edu  ucla.edu> on behalf of Alan E Brownstein 
> *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  ucla.edu> on behalf of Berg, Thomas C. 
> *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 

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
SSRN: http://ssrn.com/author=261564
Weblog: http://www.mirrorofjustice.blogs.com
-

From: religionlaw-boun...@lists.ucla.edu  
on behalf of Alan E Brownstein 
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  
on behalf of Berg, Thomas C. 
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
SSRN: