IRS still dragging its feet on challenges to religious pulpit electioneering

Published: Tuesday, Dec. 11 2012 8:30 p.m. MST

In this Jan. 25, 2007 file photo, Freedom From Religion Foundation co-president Annie Laurie Gaylor stands in front of the door at the foundation headquarters in Madison, Wis. In the aftermath of November's election, the FFRF are arguing that the tax agency has been negligent in enforcing limits on tax-exempt churches directly engaging in electioneering.


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In May 2008 a pastor in Warroad, Minn. stood at the pulpit and told his followers how to vote. “If you are Christian, you cannot support Hillary Clinton or Barack Obama,” the pastor said, according to the local paper. “Both Hillary and Barack favor the shedding of innocent blood and the legalization of the abomination of homosexual marriage.”

The pastor emailed the article to Americans United for the Separation of Church and State, a liberal watchdog group, taunting its leaders to come after him.

Under current law, churches and other tax-free charities can engage in issue advocacy and even advocate for or against ballot propositions. But they cannot endorse a specific candidate. The pastor was out to test that limit.

“I am writing you to let you know that I preached a sermon in my church on Sunday, May 18, 2008,” the pastor wrote to Americans United. “As you can see from the attached newspaper article, I specifically made recommendations as to who a Christian should vote for.

“I have read in the past about how you have a campaign to intimidate churches into silence,” he continued. “I am letting you know that I will not be intimidated into silence when I believe God wants me to address the great moral issues of the day, including who will be our next national leader.”

This pastoral taunt was part of the first wave of “Pulpit Freedom Sundays,” sponsored by the Alliance Defending Freedom, an Arizona-based religious freedom group. Americans United took the bait, filing a complaint with the IRS, pointing out the church’s violation of electioneering rules.

Then they waited. And waited. Three years later, the IRS has still not responded to Americans United and remains frozen on the issue. Meanwhile, ADF repeated its project in 2010 and again in 2012, with ministers encouraged to campaign for candidates from the pulpit. In 2012, ADF claims, 1,500 church leaders signed up.

With three national campaigns now in the rearview mirror since 2008, ADF and Americans United have become unlikely allies. Both want the IRS to enforce the rule preventing tax-exempt churches from speaking out on political campaigns. Both groups expect the matter to end up in court. But until the IRS acts, everyone remains in limbo.

The controversy has deep implications for religious liberty, as churches and the state rub shoulders in the space where belief blends into advocacy and advocacy into politics.

“We have to wait for the law to be applied, which is why Pulpit Freedom Sunday is important,” said Erik Stanley, at ADF attorney behind the effort. “We can’t just go out and challenge it on its face right now.”

Where is the referee?

Is the electioneering restriction constitutional? The IRS is lying low, and the courts can't answer the question until someone gets in trouble. The fighters are ready to go. All they need is a referee.

In one corner is Stanley, ADF's senior legal counsel. “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,” Stanley said in a statement this fall. “Likewise, no one should be asking him to give up his church’s tax-exempt status to be able to keep his constitutionally protected right to free speech.”

In addition, Stanley argues the religions warrant special protection both under the constitution and under federal law. He points to the Religious Freedom Restoration Act, which sets a high bar against federal intervention with religion.

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