In Re Young
The Crystal Evangelical Free Church (hereinafter the church) appeals from a final order entered in the District Court for the District of Minnesota affirming an order entered in the Bankruptcy Court for the District of Minnesota that required the church to turn over to trustee Julia A. Christians certain funds debtors Bruce and Nancy Young had contributed to the church as tithes during the year preceding the filing of their petition for bankruptcy. In re Young, 148 B.R. 886 (Bankr.D.Minn.1992), aff‘d, 152 B.R. 939 (D.Minn.1993). For reversal, the church argues that the contributions were not avoidable under
BACKGROUND FACTS
The facts are not disputed. The debtors are active members of the church. For several years, as part of their religious belief and practice, the debtors voluntarily contributed certain funds as tithes to the church; they did not receive money or tangible property in exchange for their contributions. Tithing is a spiritual and financial practice. Believers traditionally give a tithe, or tenth, of their income to a religious organization such as a church. See Lev. 27:1, 30, 32 (New International Version) (“The Lord said to Moses.... A tithe of everything from the land, whether grain from the soil or fruit from the trees, belongs to the Lord; it is holy to the Lord.... The entire tithe of the herd and flock--every tenth animal that passes under the shepherd‘s rod--will be holy to the Lord.“). The church teaches that Christians should offer regular contributions to support the work and message of the church. However, the church does not insist on a particular amount or require payment of membership or attendance fees. Members and non-members are welcome at worship services and other church services whether they tithe or not. It is not disputed that the debtors are sincere in their religious faith.
In February 1992 the debtors filed a joint Chapter 7 bankruptcy petition. During the year preceding the filing of their Chapter 7 petition, and at a time when they were insolvent, they contributed a total of $13,450.00 to the church. The trustee filed this adversary proceeding against the church in order to recover those contributions as “fraudulent transfers” under
DECISION OF THE BANKRUPTCY COURT
The bankruptcy court granted the trustee‘s motion for summary judgment and denied the church‘s motion. The bankruptcy court held that the debtors’ contributions to the church were avoidable transfers under
The bankruptcy court also concluded that the contributions were not economically beneficial to the debtors. 148 B.R. at 893. In the bankruptcy court‘s view, any benefit was strictly religious and thus merely incidental and enjoyed by the debtors individually and not by either their pre-petition or post-petition estate. Id. at 893-94 & n. 10. The bankruptcy court also noted that the judicial system cannot differentiate between “religious” benefits and “secular” benefits, much less put a value on those benefits, and that any value calculation would be “fraught with the sort of entanglement that the Constitution forbids,” and that the debtors’ contributions to the church were thus avoidable as fraudulent transfers under
The bankruptcy court also determined that, even assuming the debtors received value, that value had not been received “in exchange for” their contributions because no exchange took place. Id. at 895-96. As noted by the bankruptcy court, the church made available worship services and religious programs to all members, including the debtors, without in any way linking those services to financial contributions. Id. at 894 (noting that debtors could not have received property in exchange for their contributions for purposes of
DECISION OF THE DISTRICT COURT
On appeal, the district court affirmed the bankruptcy court‘s statutory interpretation and analysis of
On appeal in the district court, the church argued for the first time that applying
The district court also held that
Finally, the district court held that
CERTIFICATION OF CONSTITUTIONAL QUESTION
On November 13, 1993, after the district court had filed its decision and while this appeal was pending, President Clinton signed the Religious Freedom Restoration Act (RFRA),
While preparing for oral argument, this court recognized, albeit belatedly, that certification under
Following certification, the United States decided to intervene in the case and filed a brief supporting the position of the trustee and defending the constitutionality of
STANDARD OF REVIEW
We review the grant of summary judgment de novo. The question before the district court, and this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
In the present case, there are no genuine issues of material fact in dispute because the parties stipulated to the relevant facts and because the issues raise only questions of law.
The church‘s principal argument on appeal is that requiring the church to return these contributions violates the free exercise clause of the first amendment. The church relied on Smith in its main brief but also raised a RFRA compelling governmental interest argument in its supplemental brief. The church also argues that the district court erred in applying
“FRAUDULENT” TRANSFERS UNDER 11 U.S.C. § 548(a)(2)
The section of the bankruptcy code under which the trustee recovered the contributions at issue,
The term “fraudulent” in the caption of
In order to find a fraudulent transfer, or, more accurately, an avoidable transfer, has occurred under
On appeal the church argues the district court erroneously defined “value” to include only tangible property and ignored how the debtors valued what they received from the church. The church argues that “value” includes indirect economic benefits and that the debtors received “value” in the form of tax deductions for charitable contributions, church membership and spiritual counseling, and, more concretely, access to church facilities because contributions from the debtors and others helped pay for the church‘s operating expenses. The church also argues that the district court erred in concluding that the contributions were not made “in exchange for” the indirect economic benefits the debtors received in the form of church services. The church argues a nexus existed between the contributions and those benefits because the debtors made the contributions during the same time period they received the benefits.
Title
Unlike the bankruptcy court, however, the district court did not define “value” only in terms of tangible property or marketable financial value. The district court correctly examined “all aspects of the transaction and carefully measure[d] the value of all benefits and burdens to the debtor, direct or indirect,” including “indirect economic benefits.” 152 B.R. at 945. The district court required only that the indirect economic benefits be “fairly concrete.” Id., citing In re Minnesota Utility Contracting, Inc., 110 B.R. 414, 420 (D.Minn.1990) (MUC ) (bank required corporation to grant bank a security interest in its assets to extend additional line of credit to a second corporation owned by same shareholders; indirect economic benefit to first corporation could be “reasonably equivalent value” as long as indirect economic benefit was “fairly concrete“; no evidence that first corporation received any indirect economic benefits). What “fairly concrete” means is not clear. However, the district court clearly did not define “property” in general, or “indirect economic benefit” in particular, only in terms of legal or equitable rights or ownership interest. Compare 148 B.R. at 891 (bankruptcy court arguably limited “property” to legal or equitable rights and things subject to ownership) with id. at 893-94 (value requires transfer of economic benefit to debtor‘s estate); cf. In re Newman, 183 B.R. at 247 (noting that tithing does not give debtors enforceable property right, contract right or equitable right to attend or partake in services offered by church).
In any event, in the present case, whether the debtors received any economic benefit from the church services is beside the point. Even assuming that the debtors received “reasonably equivalent value,”4 the stipulated facts in the present case precluded any finding that the debtors made their contributions “in exchange for” the church services. 152 B.R. at 949, 148 B.R. at 893. Section 548 contemplates a quid pro quo. In the present case the parties’ stipulations are inconsistent with a quid pro quo. The debtors stipulated that they made the contributions out of a sense of religious obligation and not in order to attend church (or receive a tax deduction). The parties also stipulated that the church services were available to all regardless of whether any contributions were made. In other words, the debtors’ contributions were purely voluntary and in no way linked to the availability of church services. Similarly, the church conducted worship services and provided other services independent of the debtors’ contributions. Under the stipulated facts, there was no quid pro quo, no exchange of contributions for church services.5
Because the debtors did not receive the church services “in exchange for” their contributions, the contributions were avoidable transfers and were recoverable by the trustee under
FREE EXERCISE OF RELIGION
Having concluded that the debtors’ contributions were avoidable transfers and recoverable by the trustee under bankruptcy law, we turn now to the church‘s first amendment arguments. The parties’ arguments on the merits are related and, to a certain degree, repetitive. Because we hold that requiring the church to return the debtors’ contributions violates the RFRA, we do not reach the merits of the constitutional issues.
As noted above, even though the church did not raise any constitutional arguments in the bankruptcy court and raised them for the first time on appeal in the district court, the district court exercised its discretion to consider the constitutional arguments on appeal. The trustee argues that this is not the kind of extraordinary case that warrants an exception to the general rule that a reviewing court should not consider issues raised for the first time on appeal. E.g., United States Trustee v. Harris, 960 F.2d 74, 78 (8th Cir.1992). We hold that the district court did not abuse its discretion in considering the constitutional arguments raised by the church for the first time on appeal. The constitutional arguments raised by the church for the first time on appeal involved purely legal issues. No additional evidence or argument would have affected the outcome of the case. E.g., Universal Title Insurance Co. v. United States, 942 F.2d 1311, 1314-15 (8th Cir.1991).
STANDING
The trustee also argues the church lacks standing to raise the free exercise rights of the debtors, who were not parties in the adversary proceeding in bankruptcy court or on appeal in the district court (or on appeal in this court). We hold that the church has standing to raise the free exercise rights of the debtors. See In re Newman, 183 B.R. at 249. This issue involves the concept of third-party standing. Standing is a jurisdictional prerequisite, and in general parties must raise their own legal rights. However, a litigant can raise the free exercise rights of a third party if the third party cannot effectively assert those rights. McGowan v. Maryland, 366 U.S. 420, 430, 81 S.Ct. 1101, 1107-08, 6 L.Ed.2d 393 (1961) (department store challenging Sunday closing law could not raise free exercise rights of patrons). We agree with the district court that the debtors could not have effectively asserted their free exercise rights. The trustee, representing the debtors’ estates, and the church were the parties in this adversary proceeding; the debtors were not. As noted by the district court, there was no indication that the debtors were able to assert their free exercise rights in another forum. In addition, the interests of the church and the debtors, who are members of the church, were sufficiently similar so that the church would be an effective representative of the debtors’ free exercise rights.
RETROACTIVE APPLICATION OF RFRA
Although the RFRA was enacted after the district court‘s decision, the RFRA provides that it “applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.” RFRA § 6(a),
RFRA
On the merits the church argues that requiring the return of these contributions unfairly discriminates against religion in general and, more specifically, against religions (and the members of those religions) that believe in tithing. The church argues that exempting a personal residence or tools of a trade or household goods, see
For the reasons discussed below, we hold that the recovery of the contributions substantially burdens the debtors’ free exercise of their religion and is not in furtherance of a compelling governmental interest and therefore violates the RFRA. In light of this holding and because the RFRA is more protective of the right of free exercise than Smith, see, e.g., Flores v. City of Boerne, 73 F.3d at 1361 (describing RFRA as “a substantive expansion of First Amendment doctrine” and in effect “an assignment by Congress of a higher value to free-exercise-secured freedoms than the value assigned by the courts--that is, strict scrutiny versus a form of intermediate scrutiny“), we need not consider whether the recovery of the contributions violates Smith. The parties did not raise the question of the constitutionality of the RFRA, and we do not consider the constitutionality of the RFRA. See id. at 1356-64 (holding Congress has authority under § 5 of fourteenth amendment to enact RFRA and RFRA does not usurp judiciary‘s power to interpret the Constitution). This circuit has applied the RFRA in other cases without questioning its constitutionality and thus has at least implicitly held that the RFRA is constitutional. But cf. Hamilton v. Schriro, 74 F.3d at 1557 (McMillian, J., dissenting) (arguing that the RFRA is unconstitutional because Congress does not have power under § 5 of the fourteenth amendment to enact RFRA); Tessier, 190 B.R. at 405-07 (holding RFRA is inconsistent with Smith and violates the separation of powers doctrine).
In Smith the Supreme Court held that the first amendment‘s free exercise clause does not bar application of a facially neutral law of general application to religiously motivated conduct. 494 U.S. at 881, 110 S.Ct. at 1601. In Smith two members of the Native American Church claimed that the state unfairly denied them unemployment compensation because their religious use of peyote was determined to be misconduct. The Court held that the free exercise clause did not bar the state from prohibiting sacramental peyote use and therefore denying unemployment benefits to Native Americans discharged for using peyote. Id. at 890, 110 S.Ct. at 1606. The Court expressly rejected the application of the compelling governmental interest and least restrictive means test set forth in cases like Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), as unworkable and unnecessary in free exercise analysis. 494 U.S. at 885, 886-90, 110 S.Ct. at 1603-04, 1604-06. Justice Scalia explained that whereas application of the compelling governmental interest test in fields such as equal protection or free speech produces constitutional norms, in the free exercise context it produces a “constitutional anomaly,” that is, a private right to ignore generally applicable laws. Id. at 886, 110 S.Ct. at 1604 (footnote omitted). Justice Scalia emphasized that ” ‘[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.’ ” Id. at 887, 110 S.Ct. at 1604, citing Hernandez v. Commissioner, 490 U.S. at 699, 109 S.Ct. at 2148. Justice Scalia cautioned that “courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” 494 U.S. at 887, 110 S.Ct. at 1604.
Concerned that Smith did not adequately protect free exercise rights, in 1993 Congress passed the RFRA expressly in response to Smith. Congress intended “to restore the compelling [governmental] interest test” as set forth in Sherbert v. Verner and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), “to guarantee its application in all cases where free exercise of religion is substantially burdened” and “to provide a claim or defense to persons whose religious exercise is substantially burdened by government,”
The threshold inquiry under the RFRA is whether the governmental action in question “substantially burdens” a person‘s religious practice. This is a question of law which we review de novo. Hamilton v. Schriro, 74 F.3d at 1552. The individual has the burden of establishing the existence of substantial burden.
For purposes of analysis, we can assume that the recovery of these contributions would substantially burden the debtors’ free exercise of religion. Even though the church encourages but does not compel tithing, the debtors consider tithing to be an important expression of their sincerely held religious beliefs. In other words, in the present case, tithing is religiously motivated, but not religiously compelled, practice. Permitting the government to recover these contributions would effectively prevent the debtors from tithing, at least for the year immediately preceding the filing of the bankruptcy petitions. We do not think it is relevant that the debtors can continue to tithe or that there are other ways in which the debtors can express their religious beliefs that are not affected by the governmental action. It is sufficient that the governmental action in question meaningfully curtails, albeit retroactively, a religious practice of more than minimal significance in a way that is not merely incidental. Cf. In re Tessier, 190 B.R. at 403-04 (debtors testified that even though church would not sanction them for failing to tithe, their faithful exercise of their religion is “contingent” upon their continuing to tithe; holding that not allowing debtors to tithe under Chapter 13 plan substantially burdens free exercise right; however, noting that Chapter 7 trustee may attack religious giving by bringing a fraudulent transfer action against the religious institution under
The next question is whether there is a compelling governmental interest. Once the individual has shown that the governmental action substantially burdens his or her free exercise right, the government must demonstrate that the substantial burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.
In the present case the question is whether the bankruptcy code in general and
In comparison, the bankruptcy court in In re Tessier, 190 B.R. at 405, found no compelling governmental interest. However, In re Tessier arguably interpreted the compelling governmental interest requirement more narrowly than In re Newman to include in the free exercise context “only those interests pertaining to survival of the republic or the physical safety of its citizens.” Id. In re Tessier is procedurally distinguishable from the present case because it involved a Chapter 13 trustee‘s objection to the debtors’ reorganization plan. Nonetheless, it is substantively similar to the present case because the trustee objected to the debtors’ charitable contribution of $100 per month to their church, in other words, a tithe. The Tessier court acknowledged that “the government clearly has interests in ... providing the debtor with a fresh start, efficiently administering bankruptcy cases, [and] protecting the interests of creditors,” but concluded that such interests fell “short of direct national security and public safety concerns.” Id. The Tessier court concluded that these interests, although “rational, and even important,” were “not sufficiently grave to deserve the ‘compelling’ label when balanced against a parishioner‘s free exercise of religion.” Id., citing Sherbert v. Verner, 374 U.S. at 406, 83 S.Ct. at 1795 (the key compelling governmental interest case which rejected the government‘s claim that preventing fraud in unemployment compensation was a compelling governmental interest). The Tessier court then held that the RFRA was unconstitutional, and thus had no effect on the bankruptcy code, because its restoration of the substantial burden/ compelling governmental interest test was inconsistent with Smith ‘s “valid and neutral law of general applicability” test for free exercise claims and violated the separation of powers doctrine. 190 B.R. at 405-07.
We agree with In re Tessier that the interests advanced by the bankruptcy system are not compelling under the RFRA. Although we would not necessarily interpret compelling governmental interests as narrowly as the Tessier court did, we agree that bankruptcy is not comparable to national security or public safety. We also agree that allowing debtors to get a fresh start or protecting the interests of creditors is not comparable to the collection of revenue through the tax system or the fiscal integrity of the social security system, which have been recognized as compelling governmental interests in the face of a religious exercise claim. See, e.g., Droz v. Commissioner, 48 F.3d at 1122-24. Moreover, we cannot see how the recognition of what is in effect a free exercise exception to the avoidance of fraudulent transfers can undermine the integrity of the bankruptcy system as a whole; its effect will necessarily be limited to the debtor‘s creditors, who will as a result have fewer assets available to apply to the outstanding liabilities, and not all creditors or even all debtors. This is not to say that the recognition of a free exercise exception under these circumstances may not have adverse economic consequences for both creditors and debtors; for example, creditors may be more cautious in doing business with those who tithe or make contributions to religious organizations.
Because we hold that allowing debtors a fresh start and protecting the interests of creditors are not compelling governmental interests under the RFRA, we need not reach the question of whether the governmental action is the least restrictive means of furthering the compelling governmental interest.
In sum, we hold that because the substantial burden on the debtors’ free exercise of religion is not furthered by a compelling governmental interest, the RFRA provides a defense against the order of the district court permitting the trustee to avoid the debtors’ contributions to the church under
Accordingly, the order of the district court is reversed.
BOGUE, Senior District Judge, dissenting.
While I agree with the majority‘s holding that the debtors did not receive reasonably equivalent value in exchange for the debtor‘s financial contributions to the church, I cannot agree with the decision on the merits under RFRA1-1, and therefore respectfully dissent.
The first step in RFRA analysis requires the plaintiff to establish that the challenged government action “substantially burdens” their free exercise of religion. If there is no substantial burden, the inquiry ends and the challenger‘s petition must fail. In re Newman, 183 B.R. 239, 251 (Bankr.D.Kan.1995) (“If there is no substantial burden, RFRA does not apply.“). Courts have articulated various standards required to make a showing of substantial burden.
I agree with the majority that RFRA does not compel the church to show that tithing is “required” by the church in order to prove a substantial burden. It is enough if the allegedly impinged conduct is motivated by a sincerely held religious belief. Sasnett v. Sullivan, 908 F.Supp. 1429, 1444 (rejecting a “religiously mandated” test in favor of a “religiously motivated” test for purposes of determining substantial burden).2-1 That being said, it is important that the substantial burden step in the RFRA analysis is not reduced to a perfunctory determination or foregone conclusion. A searching inquiry is required to “protect[ ] the government from having to justify its regulations under a compelling interest standard if the burden on the asserted practice is incidental or de minimis.” Id.
As stated by the majority, the governmental action must “significantly inhibit or constrain conduct or expression that manifests some central tenet of a [person‘s] individual [religious] beliefs; must meaningfully curtail a [person‘s] ability to express adherence to his or her faith; or must deny a [person] reasonable opportunities to engage in those activities that are fundamental to a [person‘s] religion.” Op. at 1418. Although it is undisputed that the debtors sincerely believe in tithing and that tithing is central to the religion they practice, I would conclude that the trustee‘s action of recovering monies tithed during the year the debtors were insolvent does not substantially burden the free exercise of their religion.
In coming to this conclusion, I note that the act of tithing by the debtors in the year preceding their filing for Chapter 7 protection was in fact executed, i.e., regardless of the eventual outcome, they were given the opportunity to practice their religion as they chose during the year they were insolvent. There was no “constraint of conduct or expression” respecting a central tenet of their belief, nor a curtailment of their ability to “express adherence ” to their faith, nor were they denied reasonable opportunities to “engage in those activities ” that were fundamental to their religion. They engaged in the conduct and activity of tithing and fully expressed adherence in their sincere belief in tithing to the church. Unfortunately, the debtors were insolvent during the year preceding February 1992 when they filed a joint Chapter 7 bankruptcy petition. As such the trustee properly sought to recover that for which the debtors did not receive reasonably equivalent value in exchange for their contributions to the church.
The trustee‘s act of recovering the tithes from the church under
there is no evidence that section 548(a) prevents the debtors or any other church member from tithing. Indeed, the present record certainly does not suggest that section 548 prevented these debtors from tithing. Equally important, the church has no records which might show that other members did not tithe because of section 548 since no one ever checks to see if members actually do tithe. The funds the trustee seeks to recover have already been tithed to the defendant. The debtors, in all likelihood, continue to tithe to the defendant. The debtors fulfilled their religious obligation by tithing in the year prior to their bankruptcy filing. The statute, by its own operation, does nothing to prevent the debtors’ fulfillment of their personally held religious obligation to tithe and, therefore, does not place a “substantial burden” on the debtors’ practice of their religion.
In re Newman, 183 B.R. at 251 (emphasis added).3-1
Further evidence of the lack of substantial burden is the uncontroverted fact that tithing is not required to fully participate in church services. As noted by the majority, the parties have stipulated that church services were available to all persons regardless of whether any contributions were made. The fact that the debtors’ purely voluntary tithes were ordered retroactively recovered by the trustee does not change the fact that the debtors can attend church services, participate in church programs, and worship and believe as they choose. They can continue to tithe as has been their custom, assuming no additional bankruptcy filings. Given these facts, I cannot conclude the debtor‘s free exercise of religion was substantially burdened.
In my view, the church‘s failure to demonstrate a substantial burden would end the inquiry and would require affirmance. Yet even if section 548 worked a substantial burden on the debtors’ religious practice, I would conclude that the statute serves a compelling governmental interest and is the least restrictive means of achieving said interest.
Although stated in dicta, I agree with the district court‘s view that the bankruptcy code and
It can be fairly said that our nation‘s economy depends extensively on the availability of credit to individuals and businesses. Bankruptcy is an extraordinary remedy for insolvent debtors and oftentimes harsh on creditors. One of the creditor‘s few protections are recovery statutes like section 548, which as of today includes a free exercise exception for religious giving in the year preceding filing for bankruptcy.
The majority may be correct when it admonishes that today‘s decision may not, by itself, undermine the integrity of the bankruptcy system as a whole. But I share the majority‘s apprehension that credit transactions involving persons with views similar to the current debtors may hereinafter involve a more probing and delicate inquiry. Given today‘s holding, are cautious potential creditors (including government or government-sponsored creditors) now expected to question applicants in depth regarding the highly personal activity of religious giving? And what if said application is denied on the grounds that the applicant‘s religious giving makes extending credit an unwarranted risk? Pragmatic issues aside, it is enough that all of society has a compelling interest in maintaining the balance between debtors and creditors in its current state.
Finally, I would find that
The portion of the statute at issue in this case only allows for recovery those transfers of the debtor‘s property which occurred within one year of the bankruptcy filing, occurred while the debtor was insolvent, and that were not given in exchange for reasonably equivalent value. Clearly, the statute was drawn in such a way as to balance the ability of the debtor to dispose of property with the need to protect unsecured creditors. For example, if in this case the debtors had not been insolvent on the dates that the transfers to the defendant took place, then the transfers would not be recoverable. Only when all of the requirements of § 548(a)(2) are met is the trustee able to recover the transfer.
In re Newman, 183 B.R. at 252.
The statute contains four specific elements, all of which are satisfied by the trustee in this case. The statute is narrowly tailored, and the trustee closely followed the proper procedures set forth in the Bankruptcy Code for avoiding and recovering the donations, and took no action against these debtors which would not be taken against any other transferee in the same factual situation.
In conclusion, I would hold that the trustee has satisfied the requirements of RFRA and would affirm the district court.
Notes
(a) The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily--
....
(2)(A) received less than a reasonably equivalent value in exchange for such transfer or obligation; and
....
(B)(i) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation.
Given the statute‘s dubious constitutionality, I believe we should have requested supplementary briefing and hearing, along with certification to the Attorney General, on the constitutionality of RFRA.
(a) IN GENERAL--Government shall not substantially burden a person‘s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b) EXCEPTION--Government may substantially burden a person‘s exercise of religion only if it demonstrates that application of the burden to the person--
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
For purposes of analysis, we have also assumed that the contributions and the church services were reasonably equivalent and thus need not take up the constitutionally suspect and difficult task of attempting to value the church services.