On Sunday, October 5, 2014, hundreds of religious leaders preached politics from the pulpit -- part of a now annual tradition and nationwide protest against the IRS’s ban on nonprofit involvement in political campaign activity. Known as “Pulpit Freedom Sunday,” the event is organized by the Alliance Defending Freedom. While tax practitioners, scholars, and religious leaders often question the IRS ban’s constitutionality, active violation of the ban warrants great caution and discretion. Believers need not – and should not be required to – cabin their faith, but they need to proceed carefully within the present legal, political, and cultural context.
A Short History Lesson. Long before Section 501(c)(3), or even the U.S. Tax Code itself, was enacted, our country’s religious institutions enjoyed religious liberty protection from government interference. As the U.S. Supreme Court observed in the landmark case of Walz v. Tax Commission (1970):
Few concepts are more deeply embedded in the fabric of our national life beginning with pre-revolutionary colonial times, than for the government to exercise at the very least this kind of benevolent neutrality toward churches and religious exercise generally, so long as none was favored over others and none suffered interference.
As U.S. Supreme Court Justice O’Connor further observed, the early American leaders “accorded religious exercise a special constitutional status,” with all agreeing that “government interference in religious practice was not to be lightly countenanced.” City of Boerne v. Flores (1997). Religious institutions may be subject to the state in limited ways (e.g., payroll taxes, health and safety regulations), but all such intrusions must be strictly scrutinized and limited so as to not overreach.
Muzzling Political Speech. In the 1950s, then U.S. Representative Lyndon Johnson reportedly became upset when a charity supported his opponent with tax-deductible contributions. As a result, Johnson pushed through an amendment to Section 501(c)(3), which bans all political campaign activity of public charities, including churches and other religious institutions. This restriction has been upheld as part of the price tag of such tax-favored status. (See, e.g., Branch Ministries v. Rossotti (D.C. Cir. 2000).)
Fast forward to 2010, when the U.S. Supreme Court decided the landmarkCitizens United case and upheld a Section 501(c)(4) nonprofit’s right to “speak” through politically related activity. Since that ruling, the IRS, the current Presidential administration, and others have sought to restrict free speech rights of such groups. Such efforts seem to be based on a perceived abuse of the political process through excessive spending. Several Congressional leaders have proposed an amendment to the First Amendment to restrict politically related speech.
Increasing Criticism of Religious Institutions. With that historical backdrop, the practice of political speech by religious leaders is even more potentially problematic, given the following three emergent factors:
First, the IRS has indicated its willingness to resume its previously dormant practice of auditing religious institutions. This news comes out of the recent settlement of a lawsuit filed by the atheist organization Freedom From Religion Foundation against the IRS. Due to outdated federal regulations, the IRS had essentially ceased all auditing of churches, including those that may have engaged in prohibited political campaign activity. This is no longer the case. According to settlement-related IRS correspondence, the IRS has its eyes on 99 churches that may be in legal trouble.
Second, religious institutions (as well as other nonprofits) are increasingly finding themselves mired in financial scandal involving mismanagement – even theft – of their charitable assets. But for First Amendment religious freedom reasons, and unlike all other public charities, they are not required to file the annual IRS Form 990s. Many political and other leaders have thus called for increased accountability, positing other interests above religious liberty values.
Third, enter the groundswell of legislative activity, court rulings, and debates over same-sex unions, sexual orientation, and gender identity. The result: an increasing clash between proponents of such beliefs and people with sincerely held theological and other opposing religious beliefs about human sexuality and our societal well-being.
Prudence. What does prudence warrant? Caution and discretion. This is not an ideal time to push for a judicial or IRS showdown on the political campaign prohibition for religious institutions. Recent 5-4 Supreme Court decisions on religious liberty and free speech demonstrate that protection of religious institutions’ First Amendment rights is by no means assured. (See, e.g., Burwell v. Hobby Lobby(2014); Federal Election Commission v. Wisconsin Right to Life (2007).) In addition, the IRS has demonstrated that it cannot be trusted to protect constitutional freedoms, particularly in light of the 2013 scandal regarding its improper handling of tax-exemption applications filed by conservative organizations. Further, with the apparently growing intolerance of religious liberty, this is not the time to thumb one’s nose at the political campaign prohibition.
What can and should religious institutions do? First, respect and obey the law, insofar as such obedience is consistent with one’s conscience. Second, preach one’s beliefs, doctrine, and values wholeheartedly and fully. Preach and teach from the Bible, the Koran, and other sacred texts about the key underlying issues: caring for the poor, sanctity of life, sexuality, the environment. This kind of communication can be done without reference to a specific political candidate or party. (Such approach may otherwise be quite practically prudent to avoid divisive partisanship.) Likewise, exhort listeners to follow religious doctrine and live out religious values. Such exhortation can be performed as sincere religious adherents, or simply as citizens.