Academic journal article Ave Maria Law Review

Selling Our Soul for Tax Breaks: Electioneering, Lobbying and the Substantial Burden Factor under RFRA

Academic journal article Ave Maria Law Review

Selling Our Soul for Tax Breaks: Electioneering, Lobbying and the Substantial Burden Factor under RFRA

Article excerpt


While numerous commentators have explored the many sub-issues surrounding the tax-exempt status of churches, recent events have brought renewed importance to the question of whether churches should engage in political activity at the expense of forgoing tax-exempt status. Central to this renewed importance are the various religious liberties issues which have attracted significant attention during the past several years. For example, the recent Health and Human Services ("HHS") regulation mandating coverage for contraceptives and abortifacients in employee health plans (including religiously-affiliated organizations such as Catholic universities and hospitals) has drawn the condemnation of every American bishop who heads a diocese as well as the Assembly of Orthodox Bishops in North America which represents all 53 Orthodox bishops in the United States. (1) These current events have led even left-leaning periodicals such as the New York Times to characterize Catholic/Government relations as involving a "growing sense of siege" and the HHS mandate as the equivalent of "Pearl Harbor." (2)

In response to government actions like the HHS mandate, which they see as interfering with religious liberties, the Catholic bishops have taken unprecedented steps to influence the political process. One clear example was the benediction given by Timothy Cardinal Dolan at the closing of the 2012 Democratic National Convention, where Dolan made numerous references to pro-life and pro-religious liberty positions. (3) Indeed, many examples of "semi-political" activity by Catholic bishops have recently been reported in the popular press. (4) On several occasions, the actions of Catholic bishops have called into question whether or not the ban on political activity by religious organizations under 26 U.S.C. [section] 501(c)(3) (5) has been violated. (6) Such arguably political activities increased greatly in the run up to the 2012 Presidential election, sparking a lawsuit against the Internal Revenue Service by the Freedom from Religion Foundation for failure to enforce the electioneering ban in 26 U.S.C. [section] 501(c)(3). (7)

While much has been written both in support and in opposition of the ban, (8) the currently available literature was written at a time when churches were less engaged in potentially political speech. Additionally, this body of scholarship appears to overlook an important Free Exercise argument that the courts have implied might be sufficient to overcome a Section 501(c)(3) challenge to church speech. In this Note, I intend to: (1) Survey the history of the electioneering and substantial lobbying ban on tax-exempt organizations found in 26 U.S.C. [section] 501(c)(3); (2) Explain the appropriate Free Exercise tests to 26 U.S.C. [section] 501(c)(3) under both the First Amendment and the Religious Freedom Restoration Act (RFRA); (3) Demonstrate that Catholic doctrine morally obligates the bishops to actively oppose legislation containing, or political candidates espousing, clear moral evils--including through the use of political means which would violate the political-prohibitions in 26 U.S.C. [section] 501(c)(3); and (4) Show that alternatives to directly engaging in political activity--such as the use of derivative lobbying organizations formed under 26 U.S.C. [section] 501(c)(4)--do not sufficiently alleviate the substantial burden placed on Catholics by the electioneering and substantial lobbying ban.

Taken together, these four sections will explain how a litigant could mount a colorable Free Exercise challenge to the political restrictions on Section 501(c)(3) organizations under RFRA. These claims will be constructed using theories that the Courts themselves have suggested may be sufficient to overcome the substantial burden hurdle to a successful RFRA challenge.

While the legal principles discussed in this Note are equally applicable to religious non-profits of all faiths, this Note draws primarily upon Roman Catholic teachings and organizations because of the doctrinal unity and recent political activity of that organization. …

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