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Mayer, Lloyd H., Politics at the Pulpit: Tax Benefits, Substantial Burdens, and Institutional Free Exercise, 89 B.U. L. Rev. 1137 (2009), available at SSRN.

Although the next Presidential election is still a couple of years off, one controversy that is sure to return to center stage is the prohibition in section 501(c)(3) that  bans 501(c)(3) organizations from intervening in a political campaign for or against a candidate for public office.  The Alliance Defense Fund has set up a “pastor initiative” to create a test case regarding a religious leader’s right to endorse a candidate from the pulpit.  I, and others, have participated in a series of debates regarding this issue, and I have argued that the campaign ban is constitutional.  In preparing for one of the debates, I read Lloyd Mayer’s article, Politics and the Pulpit:  Tax Benefits, Substantial Burdens, and Institutional Free Exercise. Professor Mayer’s article puts a new twist on an old issue, and provides a pathway for the Supreme Court to follow when it confronts the issue.  I hope Mayer’s article is cited in the minority opinion, but the article is an important contribution for people thinking about campaign intervention and section 501(c)(3) organizations.

As a brief introduction, proponents of the campaign ban argue that it is constitutional for Congress to condition tax-exempt status on a set of restrictions that ensure that organizations are acting consistently with the purpose of the exemption.  In this context, Congress has determined that organizations that receive a subsidy from the government in the form of tax exemption should not be involved in endorsing candidates. (See Regan v. Taxation with Representation of Wash., 461 U.S. 540 (1983), upholding the limitation on lobbying contained in 501(c)(3)). In a sense, such actions are deemed by Congress to be not charitable.  (See Bob Jones University v. United States, 461 U.S. 574 (1983), denying tax-exempt status to Bob Jones University because it discriminated based on race and determined that such discrimination prevented an organization from being charitable).  Religious leaders have a right to endorse candidates, work for candidates, and run for office.  They simply cannot do so on behalf of 501(c)(3) organizations.

Opponents of the ban argue that it infringes on the First Amendment rights of religious leaders.  They contend that Congress cannot require that they give up a constitutional right in order to receive a benefit.

Mayer’s path is however a little different.  He argues that the campaign ban must be read in light of the Religious Freedom Restoration Act of 1993 (RFRA), and that under RFRA, in many cases pulpit speech must be allowed as a statutory matter. (See also Allan J. Samansky, Tax Consequences When Churches Participate in Political Campaigns, 5 Geo. J.L. & Pub. Pol’y 145, 171-78 (2007), arguing that the campaign ban is invalid under RFRA as applied to communication from a religious leader to his or her following).  Since the Supreme Court may choose a statutory resolution to avoid the constitutional question, Mayer provides a clear path for the court to reach that conclusion.  The Supreme Court in Employment Division v. Smith rejected the application of higher constitutional scrutiny to neutral laws that impacted religion. (494 U.S. 872 (1990)).    Congress, in passing RFRA, sought to overturn the holding in Smith and require courts to apply a higher-level of scrutiny to Federal statutes that impacted religious practice. Mayer analyzes pre- and post-Smith cases to chart out why the campaign ban should survive statutory scrutiny, except in limited circumstances involving pulpit type speech.  In this regard, Mayer adds to the work earlier done by Samansky (who argues the ban is constitutional except as to intra-congregational speech) and charts and interesting course.

Mayer’s more ground-breaking work occurs in the last part of the article where he argues that there is growing support for an institutional approach to protecting constitutional rights and that this approach is particularly important with regard to religious organizations.  Mayer argues that a religious organization’s ability to communicate with its members about “matters of religious conviction is a necessary aspect of free exercise and so the government cannot, either constitutionally or under RFRA, discourage such speech by placing a condition on the receipt of a long-standing tax benefit.”  Although I intellectually disagree with both Mayer’s analysis and his ultimate conclusion, I cannot help but appreciate the path and arguments he sets out.  As this debate continues, Mayer’s work will certainly play a critical role in how people consider and examine this issue.  It is well worth your time to read it.

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Cite as: Donald Tobin, Politics at the Pulpit, JOTWELL (March 13, 2010) (reviewing Mayer, Lloyd H., Politics at the Pulpit: Tax Benefits, Substantial Burdens, and Institutional Free Exercise, 89 B.U. L. Rev. 1137 (2009), available at SSRN),