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&URL=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 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-bounces@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-bounces@ > lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Thursday, May 4, 2017 11:54 AM > *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject:* Re: Johnson Amendment E.O. > > > > Just came across this from David Saperstein’s testimony > <https://oversight.house.gov/wp-content/uploads/2017/05/Saperstein_Testimony_05042017.pdf> > today. He makes the point much better than I did--I would only add that > virtually all of his hypos could be extended beyond the church, to > countless activities of *all *501(c)(3) organizations: > > Let me offer some hypotheticals of the implications of a proposal that > says any statement is allowed that does not involve extra expenses: > > > > Suppose instead of one sermon, in every scheduled sermon for the half-year > running up to the election, the pastor(s) endorses various candidates and > reiterates those endorsements? > > > > Suppose in every regular bulletin and regular email over those six months, > the pastor or church leaders focus on endorsements of a party or a > candidate(s)? > > > > Suppose with the costs of local calls being de minimis these days, they > allow their phones to be used for campaign phone banks? > > > > Suppose a church has their congregants fill out cards for the offerings > for later tax verification (putting their money and card in an envelope > which they hand in) — and the church then adds envelopes and cards to fill > out for contributions to the candidates they endorse and collect those with > the offerings and someone from the campaign comes by every week and > collects them. > > > > Or suppose the President of Notre Dame or Catholic University adds a > single sentence to their regular email to their scores of thousands of > alumni : “I believe based on sound religious reasoning you should all vote > for Candidate A and oppose Candidate B.” > > > > Certainly de minimis but is that how tax deductible money should be used? > In each of these there is no extra funding bulletins or emails, collecting > offerings) what they would normally do. > > > > Are proponents of this legislation arguing that although you might > disapprove on other grounds, that as far as the law is concerned, this > ought to be allowed because it really doesn’t constitute using tax exempt > and tax deductible funding for partisan political purposes? What is the > cumulative value of the salaries and the overhead of the congregation in > making this electioneering possible? If the church is funded by tax > deductible contributions, are not these contributions subsidizing this > electoral activity? If the church has the benefit of tax exemption to > support its eleomosynary work, does not the tax exemption support > everything the church does including its endorsement activities? Everything > about the church is subsidized by tax exempt and tax deductible money. And > that is as true of one sermon as six months of sermons; of one bulletin as > six months of bulletins. > > > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 301-928-9178 (mobile, preferred) 202-994-7053 (office) Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ 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.
