In Swaggart the Court said that the organization did not claim that paying the sales tax violated its religious beliefs. Moreover, sales taxes--a cost imposed only at the margin of each individual sale, and thus a small portion of actual revenue--have far less effect than the electioneering restriction. The latter, at least on its face, withdraws deductibility of all contributions (a very significant disincentive to contribute, which severely affects an organization based on one single instance of endorsing a candidate.
Marty, your piece never mentions any institutional-separationist argument that, as applied to pulpit statements by clergy, enforcing the electioneering restrictions requires IRS officials to delve deeply into the content of sermons to determine whether they cross the line to candidate advocacy. As Doug has pointed out, the IRS says (understandably) that the restriction can be violated by more than express advocacy. Consider, for example, the All Saints Church (Pasadena) case in 2004, when the IRS put a liberal church through a three-year investigation when the rector delivered a sermon "What if Jesus Debated Senator Kerry and President Bush?" There is a distinctive constitutional concern with parsing the content of sermons that is not present with parsing the statements of the Sierra Club. Branch Ministries specifically avoided deciding the pulpit-speech question--among other things, in order to avoid having to decide whether the IRS was engaged in selective enforcement by going after the church there but not others. The court relied on the fact that it was a separate political expenditure, not a sermon. ----------------------------------------- Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu<https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3&URL=mailto%3atcberg%40stthomas.edu> SSRN: http://ssrn.com/author=261564 Weblog: http://www.mirrorofjustice.blogs.com ----------------------------------------------------------------------------- ________________________________ From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman <martin.leder...@law.georgetown.edu> Sent: Thursday, May 4, 2017 10:08:07 AM To: Law & Religion issues for Law Academics 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<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<mailto: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<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 7:54 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto: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&c=E,1,_-sdTULXZVit5esk1q9CjqIQ45Hv-72LSCkoXZJo7hv5uv1DHfbFMEm6GIi2LKzeCRtpTbEAgpKulNuz3qbbj-ZFFa7_lpo_LXO7k_TYT1o8J00,&typo=1> Please let me know if you notice any mistakes, thanks. -- Marty Lederman Georgetown University Law Center 600 New Jersey Avenue, NW Washington, DC 20001 202-662-9937<tel:(202)%20662-9937> _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Marty Lederman Georgetown University Law Center 600 New Jersey Avenue, NW Washington, DC 20001 202-662-9937<tel:(202)%20662-9937> _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Marty Lederman Georgetown University Law Center 600 New Jersey Avenue, NW Washington, DC 20001 202-662-9937
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
