September 2008 Archives

Barry, I am sympathetic with the frustration felt by many pastors who try to fully articulate their religious worldviews during the election season while having to censor themselves due to the IRS gag rule. As I have stated before, I believe that the best way to restore unfettered freedom of speech for pastors is to call on Congress to repeal the IRS restrictions on pastors' speech.

 

Our law firm does not counsel our church clients to violate the 501(c)(3) rules; we do not have our first contact with them until after they have already been threatened by an IRS letter or a letter from a liberal "watchdog" organization. We represent churches and religious institutions in proceedings initiated by the IRS and, in doing so, raise statutory and constitutional arguments in their defense.

 

Without getting into privileged attorney-client discussions from the Pierce Creek case, I can say that we thought the court of appeals' decision provided a blueprint for churches to express their beliefs in a political context through the formation of a separate 501(c)(4) entity. And I can't say how the Supreme Court would rule in a future case if one gets there (although I doubt one will); it's always tough to predict, especially without seeing how the law is being applied to the facts of a particular case. The uncertainty of litigation is another reason why a legislative repeal of the IRS gag rule is needed.

 

In addition, the IRS rules for political speech are different for churches and other religious non-profit organizations than they are for some non-profit organizations, such as labor unions, whose leadership is free to endorse or oppose any political candidate in their official capacity. The rationale for the difference is that religious organizations are subsidized because the contributions they receive are tax-deductible by the donor. But by that explanation, labor unions are just as subsidized because union dues are deductible as an employee expense.

 

Barry, this is not a conservative or liberal issue - all religious leaders should be able to speak freely about the intersection of faith and government if they desire to do so. Religious leaders of all faiths have a right to speak up for the unborn, the weak, the defenseless, and the unwanted, and they should be able to encourage their congregations to support candidates for office who do the same.

 

In addition, religious Americans have the same right to voice their opinions and support government actions that are consistent with their beliefs that is enjoyed by other Americans. It is simply offensive to imply that religious believers should just keep their ideas to themselves and let everyone else deal with elections and public policy. The next President and Congress will make countless important decisions on a broad range of issues that will affect every American, and religious leaders should be able to weigh in, if they so choose, on how various candidates will deal with those issues.

Well, about 35 pastors, most with the aid of the Alliance Defense Fund, have issued a challenge to the Internal Revenue Service's statutory authority to prohibit preachers from endorsing or opposing candidates from the pulpit using church resources. 

Barry, we both agree that our constitutional tradition continues to recognize the freedom to speak from the pulpit about the moral issues of the day. We obviously disagree, however, on whether "Big Brother" government surveillance, investigation, and punishment of churches due to the content of their speech should be stopped once and for all. The thought of Washington bureaucrats sifting through sermon recordings should be unsettling for all people of faith.

 

For the first century and a half of our nation's history, "election sermons" were commonplace in which pastors appealed to their congregations to support or oppose particular candidates based on their positions on issues. Religious leaders did not merely speak about moral principles alone - they called church members to take specific action in the voting booth to support those principles. That all changed in the 1950s after a disgruntled politician, then-Senator Lyndon Johnson, sought to silence some of his critics by introducing the provision that bars tax-exempt groups, including churches, from participating in political activity.

 

Religious leaders are muzzled by the IRS law. While they can speak out for themselves in their individual capacity, they are barred from either supporting or opposing a political candidate in their role as head of a tax-exempt organization. On one hand, the IRS says it's permissible for religious leaders to discuss important issues of public policy (as they should), but they are prohibited from supporting or opposing a candidate who takes positions on those issues. That's absurd. The prohibition makes no sense and has far-reaching implications. It censors pastors and it turns the IRS, which was originally designed to collect revenue for the general treasury, into the "speech police."

 

Barry, I know about the Pierce Creek case - we litigated it. That's why a legislative repeal of the burdensome IRS provisions is needed to restore unbridled free speech to religious leaders of all faiths. I strongly support H.R. 2275, a bill sponsored by Congressman Walter Jones (R-N.C.) designed to "restore the Free Speech and First Amendment rights of churches and exempt organizations by repealing the 1954 Johnson Amendment."

 

What's clearly needed is a legislative remedy, and this bill would help to get the government out of the church-surveillance business.

 

While some pastors would choose to keep the Johnson-era status quo in their churches, others would use their restored freedom of speech to help their members reconcile their religious faith with their choice of political candidates. The claim that churches will transform into political machines by lifting the current gag rule is simply an unfounded scare tactic, as evidenced by the first century and a half of American experience. A pastor should be responsive to God, his own conscience, and his congregation for what is preached from the pulpit, not the government or the latest public opinion poll.

 

To hear some people tell it, this Sunday is one of the most important days in the history of the American church.  This is the day when the church pulpits of America will be freed from the bondage of the state.  This is the day the church will finally be free!

Wait a minute.  Isn't the church in America free now?  Isn't "pulpit freedom" what our forbears demanded?  Isn't this freedom what permits the late Reverends Jerry Falwell (on the right) and William Sloane Coffin (on the left) to speak from the pulpit about the moral issues of the day no matter how many people disapproved of their comments?  Isn't this the "pulpit freedom" that inspired the Rev. Jeremiah Wright, the Rev. Dr. Martin Luther King, and thousands of other bold, and sometimes wildly controversial, preachers to speak what they considered "truth to power"?

Well, yes.  However, a group called the Alliance Defense Fund (ADF), which raked in about $31 million last year, has decided that the pulpit is not free enough.  

They oppose a law passed in 1954 that  religious groups are prohibited by the Internal Revenue Code from using their resources--including preaching time on Saturday or Sunday--to "endorse or oppose candidates for public office."

Dale Schowengerdt, an ADF attorney working on the project, told the L.A. Times: "The bottom line is that churches and pastors have a right to speak freely from the pulpit.  They should not be intimidated into silence by unconstitutional IRS regulations or rules."

In other words, the one "limitation" on receipt of a tax exemption under Section 501(c)(3) of the tax code--the very valuable privilege of a tax exemption--is to not turn your church into a political committee to help any candidate in a partisan fashion.  This Sunday they want preachers to deliberately violate this prohibition.

To start this discussion, Jay, let me suggest three reasons why the Alliance Defense Fund ought to call off this stunt.  We both know its director Alan Sears.  Maybe we could offer to take him to church, lunch and a movie on Sunday instead of watching pastors at his direction preach sermons including pulpit endorsements and risk losing their tax exemptions?

First, they do not have the Constitution on their side.  Indeed, a congregation called the Church at Pierce Creek did have its tax exemption yanked in 1995 for expending $44,000 in church receipts on a full page ad in USA Today demanding that the public not vote for Bill Clinton.  They went to trial; they appealed to the federal appeals court for the District of Columbia and not one judge agreed they had a First Amendment case. 

In other words, they lost and had to start a new church.  Now, if churches were losing their exemptions every week and Christendom were threatened with extinction, the ADF might have a bit more credibility.  In fact, the IRS does take its responsibility seriously and does investigate and sanction some churches when they cross the line.  Frankly, I think they give too many churches "passes" they don't deserve.

Second, most pastors want nothing to do with this scheme.  A recent survey of evangelical leaders overwhelmingly showed that they do not want to endorse candidates in their official capacity nor divert collection plate receipts to their favored candidate. This deeply divides congregations when it occurs, and in one case from the last Presidential cycle, even caused a North Carolina congregation to fire its pastor. 

And most Americans don't want their churches to endorse political candidates, either. LifeWay Research conducted a poll asking whether "it is appropriate for churches to publicly endorse candidates for public office." Seventy-five percent said "no!"

Even more Americans (85 percent) disagreed with using church resources to campaign for candidates for public office.

Finally, were this law changed, it would create a giant loophole in campaign finance reform laws--allowing churches to collect money from anyone and then use it to influence voters.  Local churches in some areas have great power.  Mega-ministry television preachers like Pat Robertson have even greater power.  Use it to discuss issues; not endorse candidates.  

Jay, you are half right in discussing the reception (I'm not sure why you characterized it as a "celebration") to be given by 25 significant religious groups for Iranian President Mahmoud Ahmadinejad.  He is, of course, a revolting figure in so many ways.  He is the puppet of the most extreme clerics in Iran.  His comments about the Holocaust, about gay people (who don't exist in Iran, he noted to an audience at Columbia University earlier this year), the death penalty for heretical religious views, and so many other topics should shock the conscience of any thinking persons.  It was a mistake to offer him the opportunity to give an address on any topic, including "religious contributions to peace", a subject about which he has a monumental level of ignorance.

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