Jay Sekulow: 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.

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.

In an inexplicable move, some religious organizations will host a dinner reception on September 25 for one of the world's most renowned terrorist supporters, Iranian President Mahmoud Ahmadinejad. He has been asked to speak on the topic, "Has Not One God Created Us? The Significance of Religious Contributions to Peace." I stand with the United States Commission on International Religious Freedom in strongly condemning this move by the American Friends Service Committee, the Mennonite Central Committee, the World Council of Churches, and the Episcopal Church.

Ahmadinejad is a man who has repeatedly called for the annihilation of the Jewish state of Israel, rejects religious freedom, and embraces terrorism. It is well known that Ahmadinejad has called for Israel to be "wiped off the map" and is notorious for denying that the Holocaust occurred, saying of the West, "[t]hey have invented a myth that Jews were massacred."

Ahmadinejad has also warned that "[a]nybody who recognizes Israel will burn in the fire of the Islamic nation's fury."

Just recently, the Iranian Parliament voted in favor of a bill permitting the death penalty for "apostasy," i.e., voluntarily changing one's religious faith.

Under this law, "Christians, Baha'is, and even some Muslims would be vulnerable to arbitrary arrest and imprisonment. . . . [T]wo Christians from Muslim backgrounds who are currently in prison for apostasy--Mahmoud Mohammad Matin-Azad and Arash Ahmad-Ali Basirat--could be given the death sentence."

This law was enacted despite the fact that Iran voted in support of the Universal Declaration of Human Rights when it was adopted in December 1948. Article 18 of the Declaration states: "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief . . . ."

The United States Commission on International Religious Freedom recently sent a letter of protest to those who invited Ahmadinejad to speak which stated:

[W]e are convinced that this invitation and this platform will be counterproductive. President Ahmadinejad has manipulated such dialogues repeatedly into a platform for spreading hatred. He hosted some of the world's most notorious deniers of the Holocaust, racists and anti-Semites at a 2006 conference questioning the well-established facts of the Holocaust and calling for the destruction of a member-state of the United Nations. The only accomplishment of such an invitation would be to burnish the Iranian leader's legitimacy and cleanse his reputation as a purveyor of hate.

. . . [T]he invitation to President Ahmadinejad comes amid a rapidly accelerating deterioration of religious freedom and other human rights in Iran, including prolonged detention, torture, and executions often based on the religion of the accused.

. . . More than 20 Baha'is currently are in prison in Iran on account of their religious identity, and two Christian men were charged with apostasy earlier this month.

. . . Four women leaders of the One Million Signatures campaign, which is dedicated to ending discrimination against women in the application of Islamic law in Iran, have been jailed for six months for allegedly "spreading propaganda" against Iran's Islamic system by advocating for its reform.   

. . . Reformists and journalists are regularly tried under current press laws and the Penal Code on charges of "insulting Islam," criticizing the Islamic Republic, and publishing materials that deviate from Islamic standards.

. . . Inviting this leader undermines the legitimacy and seriousness of the "dialogue" termed "the significance of religious contributions to peace." Just today, the State Department issued its annual International Religious Freedom Report, which underlines the long history of human rights violations in Iran and the continued deterioration of religious freedom conditions under President Ahmadinejad. . . .

At a time when so many Jews and Christians around the world face persecution for their faith, including those in Iran, this "celebration" with a man who leads the charge against religious freedom is outrageous, unacceptable and should not be tolerated. I am opposed to this meeting and certainly would implore these religious leaders to demand that this new apostasy law be rescinded if they insist on a meeting with Ahmadinejad. Appeasement did not work in the lead up to World War II and appeasing Ahmadinejad will not work here either.

Barry, will you stand with me in condemning this event?

Barry, you can stop waiting for answers. It looks like you are just trying to put the worst-possible spin on the Values Voters Summit to detract from the serious issues of importance to evangelicals that were considered there.

I have no idea whether the remarks you claim were made were actually made there, and I generally don't comment on hearsay within hearsay. You were not at the event either. I have no idea what was said and in what context the comments you are reporting on took place. I was not at the event; I have been preparing a Supreme Court case in which you filed a brief in support of . . . in support of neither side.

Not having been there and not having heard what was said in its proper context, I can't pretend to speak on behalf of the speakers, or the vendors for that matter. I do know that Family Research Council Action said the following regarding the "Obama Waffles" vendor you mentioned:

We strongly condemn the tone and content of materials that were exhibited by one of the vendors at this weekend's Values Voter Summit. The materials represent an attempt at parody that crosses the line into coarseness and bias.

The exhibitor contacted our reviewer just days before the Summit by email and described material that sounded like it was devoted to political flip-flops on policy issues. When the content of the materials was brought to the attention of FRC Action senior officials today, they were removed and the exhibit was dismantled by the vendor at our insistence. It is our responsibility to fully vet materials that are offered at any event we cosponsor, but we are deeply dismayed that this vendor violated the spirit, message and tone of our event in such an offensive manner. . . .

Having said that, you have known me for a long time and certainly you know that racist or mean-spirited remarks are not the kind of comments I would make or support.

The bottom line here is that people have a right to voice their concerns about over-taxation and the problems with our public school system and how the candidates' positions will impact those issues. People have a right to say that they would rather have more of their money going toward charitable causes or providing for their families than going to the federal government which, under an Obama administration, would direct more of that money to supporting abortion. People have the right to come together and say that religion has a place in the discussion of public issues and that candidates for public office should have upright moral values and integrity.

This election presents a stark contrast of worldviews and ideologies, and events such as the Saddleback Forum and the Values Voters Summit provide an important way for people of faith to express their views on the key issues of the day and to hear what the candidates have to say.

As the Presidential campaigns enter the final seven weeks before the election, it will be interesting to watch how evangelical Christians, Catholics, and other religious voters respond to the outreach efforts of both sides.

The Obama campaign has taken a page from political playbooks of the past and is now preparing to roll out "a new line of 'faith merchandise'--the latest move in an ambitious effort to win over religious voters." The items include "Believers for Barack, Pro-Family Pro-Obama, and Catholics for Obama buttons, bumper stickers and signs."

On the Republican side, the selection of Governor Palin as the Vice Presidential nominee has energized many young evangelical Christians, a key group that both candidates are vying for. Here is what the Associated Press is reporting: "On the whole, evangelicals under 30 say Palin enthuses them because she's a fresh face with a compelling family story, a reputation as a reformer and a champion of conservative moral values." As one evangelical college freshman put it: "'Palin is fresh and new, but she is also rock solid on issues like abortion. A lot of young evangelicals would have a hard time supporting Obama' for his abortion rights stance."

Young evangelical voters are viewed as being more open to voting for a Democratic candidate in this election than older evangelicals, according to the AP report: "A Pew survey last fall showed under-30 white evangelicals are increasingly up for grabs politically: 40 percent identified as Republican, down 15 percent from 2005. Most who abandoned the GOP were becoming independents, not Democrats."

"'I think the jury is still out on young evangelicals,' said Cameron Strang, editor of Relevant magazine, an influential publication for this group. 'Both parties have the opportunity to address issues of deep concern for this voting bloc.'" Strang had accepted an invitation to give an invocation at the Democratic National Convention but later declined over concerns that he would be viewed by young evangelicals as endorsing Obama.

The question of how effective Sen. Obama's outreach to young evangelicals will be remains to be answered. When they look past the excitement and buzz of the Obama campaign, will young evangelicals really vote for an ardently pro-abortion candidate en masse? The answer to that question may help to decide the outcome of the election.

So Barry, what are your thoughts on the targeted outreach?