Using the Tax Code to Silence Churches

Late last month the Internal Revenue Service settled a lawsuit filed in 2012 by the Freedom from Religion Foundation.  The lawsuit was brought because the FFRF said the IRS ignores complaints about churches violating their tax-exempt status.   The FFRF says that many churches promote candidates, political issues and legislation and they claim these activities are violations of the 1954 Johnson Amendment, which requires that non-profits not endorse candidates. 

The IRS website describes the Johnson Amendment thusly:

Under the Internal Revenue Code, all section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office. Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity. Violating this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes.

Certain activities or expenditures may not be prohibited depending on the facts and circumstances. For example, certain voter education activities (including presenting public forums and publishing voter education guides) conducted in a non-partisan manner do not constitute prohibited political campaign activity. In addition, other activities intended to encourage people to participate in the electoral process, such as voter registration and get-out-the-vote drives, would not be prohibited political campaign activity if conducted in a non-partisan manner.

On the other hand, voter education or registration activities with evidence of bias that (a) would favor one candidate over another; (b) oppose a candidate in some manner; or (c) have the effect of favoring a candidate or group of candidates, will constitute prohibited participation or intervention.

The Internal Revenue Service provides resources to exempt organizations and the public to help them understand the prohibition. As part of its examination program, the IRS also monitors whether organizations are complying with the prohibition.

In a press release, FFRF Co-President Annie Laurie Gaylor said, “This is a victory, and we’re pleased with this development in which the IRS has proved to our satisfaction that it now has in place a protocol to enforce its own anti-electioneering provisions.  Of course, we have the complication of a moratorium currently in place on any IRS investigations of any tax-exempt entities, church or otherwise, due to the congressional probe of the IRS. FFRF could refile the suit if anti-electioneering provisions are not enforced in the future against rogue political churches.”

What the FFRF won’t be talking about, however, is what the real target of the lawsuit was.  It’s no secret that for years, Democrats have campaigned heavily in black churches, with some candidates even delivering ‘sermons’ to the congregants.  Pastors in black churches regularly shill for the Democrats and urge their members to support Democrat candidates and leftist issues.  A 2012 Pew Research Center study showed that black churchgoers are eight times more likely to hear about political candidates at church than white churchgoers.  The FFRF has been unsurprisingly quiet about these activities.  What brought them out of the woodwork was a movement called Pulpit Freedom Sunday, which was started by the Alliance Defending Freedom in 2008. 

Pastors taking part in Pulpit Freedom Sunday preach a sermon that purposefully violates the Johnson Amendment in an attempt to generate test cases to overturn it.  Pulpit Freedom Sunday is on October 5th and there were approximately 1,100 church leaders participating last year. 

LifeSiteNews – Erik Stanley, senior legal counsel for Alliance Defending Freedom and head of the Pulpit Initiative, told LifeSiteNews that “the IRS has no business censoring what a pastor preaches from the pulpit.”

According to Stanley, his organization is “attempting to bring the era of IRS censorship and intimidation to an end by challenging the Johnson Amendment, which imposes unconstitutional restrictions on clergy speech.”

The tax-exempt status of churches is not an even trade-off to give up free speech, he said. “No one would suggest a pastor give up his church’s tax-exempt status if he wants to keep his constitutional protection against illegal search and seizure or cruel and unusual punishment,” he said.

Stanley insists that not only is the trade-off unequal, but “churches are automatically tax exempt out of recognition that the surest way to destroy the free exercise of religion is to begin taxing it.”

“Churches are constitutionally entitled to a tax exemption and that exemption cannot be conditioned on the surrender of constitutional rights.”

The Johnson Amendment came about because of Senator Lyndon Johnson, later to be president after the Kennedy assassination.  After winning his Senate seat in 1948 by only 87 votes he found himself being opposed by some non-profit groups when running for reelection six years later.  In response, he enlisted the help of a Democrat in the House, John W. McCormack, and changed a section of the tax code to bar charitable groups from endorsing or opposing a candidate.  By using the tax code to preserve his Senate seat he changed 178 years of preachers standing in their pulpits and saying anything they cared to about candidates or political issues.  The change has remained ever since.  The Alliance Defending Freedom group believes the Johnson Amendment to be unconstitutional and started Pulpit Freedom Sunday in an attempt to take on the Amendment in court and have it voided. 

The settlement that was reached between the FFRF and the IRS has a troubling aspect, that being the agreement that was reached has not been released.  What did the IRS agree to that was apparently enough to satisfy the FFRF?  Neither side will say.  Alliance Defending Freedom’s Litigation Counsel, Christiana Holcomb, said, “Secrecy breeds mistrust, and the IRS should know this in light of its recent scandals involving the investigation of conservative groups.  We are asking the IRS to disclose the new protocols and procedures it apparently adopted for determining whether to investigate churches.  What it intends to do to churches must be brought into the light of day.”

Under President Obama the IRS has already been unleashed on conservative groups in order to help ensure Obama’s reelection in 2012.  It should come as no surprise that a leftist group now wants to unleash the IRS on churches.  Should there ever be a test case come from Pulpit Freedom Sunday, I am not as confident as those at ADF that the courts would throw out the Johnson Amendment as unconstitutional.  Religious freedom has taken a beating in recent times and that’s certainly going to continue.  The recent Supreme Court decision in the Hobby Lobby case, which ruled that closely held corporations have the right to exercise religious freedom, was decided on a five to four vote.  If a Johnson Amendment case was to go before the Supremes today it would likely also be decided on a five to four vote.  But what about after the next Justice retires or dies?  Can anyone honestly believe that Barack Obama or the next president, if Democrat, would appoint a justice who would be likely to protect the First Amendment right to religious freedom?  We already have four justice who aren’t; one more wouldn’t be surprising in the least.  Once that happens, this Johnson Amendment test case the ADF is hoping for might backfire on them with the Amendment being upheld.  The IRS would then have carte blanche to go after churches with impunity.   As a result of Congressional inquiry, the IRS is already on record as having asked groups about the content of their prayers.  Having a new-found freedom and the blessings of the court to pursue “rogue political churches” would mean many more outrageous lines of inquiry and investigation.

Churches should not be using the Lord’s Day for political stunts like Pulpit Freedom Sunday.  Pastors should be preaching the Word of God and allowing their congregants to apply it to their lives and to their selection of political candidates.  Pastors should be more concerned about the spiritual health of church members than telling them who to vote for or what issues to support or oppose.  People should be hearing a message from God while in His house, not listening to a political advertisement.   But even refraining from becoming deliberately political in church might not be enough to hold the IRS at bay, should circumstances result in their aggressive enforcement of the Johnson Amendment.  The left has already proven they have no compunction about using the IRS to target their opponents.  With society converting biblical issues such as gay marriage, abortion and charity into political issues, this gives opportunity to the left to claim pastors are being political when they speak about such issues.  A pastor preaching about the sin of homosexuality could find his church in the crosshairs of the IRS. 

Erik Stanley of the ADF is correct when he says the surest way to destroy the free exercise of religion is to begin taxing it.  If the FFRF gets their way, it will happen.