89 B.U. L. Rev. 1137 (2009)
More than fifty years ago, Congress enacted a prohibition against political campaign intervention for all charities, including churches and other houses of worship, as a condition for receiving tax deductible contributions. Yet the IRS has never taken a house of worship to court for alleged violation of the prohibition through political comments from the pulpit, presumably at least in part because of concerns about the constitutionality of doing so. This decision is surprising, because a careful review of Free Exercise Clause case law - both before and after the landmark Employment Division v. Smith decision - reveals that the prohibition almost certainly would have survived a constitutional challenge.
Now, however, two changes to the relevant legal landscape may shift the balance toward houses of worship seeking to challenge the prohibition in the sermon context and generate new concerns for the federal government, even as the IRS begins to more aggressively investigate alleged violations. The first change was Congress' enactment of the Religious Freedom Restoration Act of 1993, which codified the substantial burden/strict scrutiny analysis articulated by the Supreme Court in pre-Smith Free Exercise Clause cases but rarely followed by that Court in practice. While no longer applicable to state and local laws, RFRA still applies to federal laws, including the prohibition. The second change is the growing support among both courts and scholars for an institutional approach to protecting constitutional rights, particularly in the context of religious organizations. This approach suggests that houses of worship challenging the prohibition may be able to argue successfully that the ability to speak to their 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.
Part I of this Article briefly describes the prohibition and its history. Part II reviews current and past Free Exercise Clause case law and explains why the prohibition almost certainly would have withstood constitutional challenge under those decisions. Part III examines the legislative history and application of RFRA, including the difficult question of what that Act actually restored, and then applies RFRA to the prohibition. This Part concludes that as applied to the specific context of a religiously motivated sermon the prohibition substantially burdens exercise of religion within the meaning of RFRA. Once that conclusion is reached, RFRA requires the government to demonstrate that the prohibition is the least restrictive means for furthering a compelling government interest. I argue that the government would find such a demonstration difficult if not impossible to make, even taking into account Establishment Clause concerns raised by creating a RFRA-based exception to the prohibition for houses of worship. Part IV explores the developing institutional view of free exercise and argues that a proper appreciation of that view would bar the government from applying the prohibition to not only sermons but also a broader range of internal communications from religious leaders to the members of their houses of worship on matters of religious importance, under both the Constitution and RFRA. Finally, Part V briefly addresses whether as a practical matter an exception to the prohibition could be appropriately defined and limited.
Mayer, Lloyd Hitoshi, "Politics at the Pulpit: Tax Benefits, Substantial Burdens, and Institutional Free Exercise" (2009). Journal Articles. 652.