Kristin Wernig, Staff Writer
On September 28, 2008, pastors all over the country took to the pulpit to protest the Internal Revenue Service (IRS) restriction on political activity by tax exempt organizations.1 Although the form of protest is new, the battle over the restriction has been waged since its inception in 1954.
Internal Revenue Code § 501(c)(3) restricts the political activity of certain tax exempt organizations by allowing them to retain their tax-exempt status so long as they do not “participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”2 Churches fall under the (c)(3) category along with other organizations “organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition . . . or for the prevention of cruelty to children or animals.”3 In 1987, the section was amended to clarify that the prohibition applied to activities in opposition to, as well as on behalf of, any candidate for public office.4 The political activity restriction is absolute; the IRS need not consider whether the activity constituted a substantial part of the church’s actions.5 The statute does not offer much insight as to what activities are prohibited. These organizations must rely on the guidance available in the various IRS revenue rulings and publications and cases.
Since its inception in 1954, churches have battled over the political activity restriction. Throughout history, because of the special roles churches hold in society, they have been accorded special treatment under the IRC. Proponents argue that this special treatment should continue to the political activity restriction. Numerous proposals have been introduced into the Congress to allow for this special treatment. However, a proposal has not yet received the necessary votes.
On September 28, 2008, dozens of pastors across the country took to the pulpit in an initiative dubbed “Pulpit Freedom Sunday”, in hopes of initiating a legal battle over the IRS’s restrictions on church involvement in politics.6 While actions ranged from expressly endorsing a candidate to urging the congregation to use the Bible as a voter’s guide and evaluate candidates and issues on the basis of Scripture, all were in hopes of placing the IRS restrictions in court to allow churches to test their constitutionality.7 Pulpit Freedom Sunday was initiated by the Alliance Defense Fund as part of their Pulpit Initiative.8 The Pulpit Initiative was created as a movement to return to churches the rights to free speech that it had prior to the 1954 “Johnson Amendment”.9
Not all churches agree with the Pulpit Initiative’s perspective, however. Americans United for Separation of Church and State was organized to defend the separation of church and state in the courts, educate legislators, and work with the media to inform Americans about religious freedom issues.10 They disagree with the ADF and believe that pulpit-based electioneering “corrupts the true mission of our faith communities”.11 The organization feels that the argument that clergy are afraid to speak out on issues is flawed because clergy
can and do address public policy concerns, ranging from abortion, gay rights and gun control to poverty, civil rights and the death penalty. They may support legislation pending in Congress or the state legislatures, or call for its defeat. They may endorse or oppose ballot referenda; discussion of public issues is a common practice in religious institutions all over America.12
As a result of the Pulpit Freedom Sunday, the Americans United organization has reported 8 violations to the IRS.13
Why did the Pulpit Freedom Initiative choose to protest the restriction in this way instead of lobbying? It is apparent at first, that churches are restricted by the lobbying limitation in § 501(c)(3). However, this may not have been a motivating factor in making the decision to protest. In hoping to place the IRS restriction in court, the churches have chosen a more certain way to affect change. Groups frequently turn to the courts as a “last resort” when their policy objectives have not been reached through Congress.14 The rejection of numerous proposals to amend the restriction that have been introduced to Congress in the last decade, may have been a motivating factor for churches to choose Pulpit Freedom Sunday as a form of protest. Also, lobbying Congress may be more effective long-term, but it could take years to affect change, whereas a court could rule on the validity of the IRC restriction almost immediately. Regardless of the motivation, it is clear that method chosen by the Pulpit Initiative exhibited exactly the right they were trying to regain. A pastor preaching a sermon that has a veiled (or express) political endorsement directly protests the restriction that would normally keep the endorsement out of the sermon. Pastors marching on Congress would say please change the restriction, where the unity of the pastors protesting from their pulpits seems to say we demand you change the restriction. With the 2008 election passed, church groups have remained seemingly silent on the issue. It appears that they are waiting to see how their protest will play out in the courts. However, should the protest fail and none of the cases reach the courts, it may be back to the drawing board, and the lobbying front, for the churches.
The fight is not over, and a long road still awaits the churches in gaining their pulpit freedom. While change may occur as a result of court proceedings or continuous proposals to Congress, it appears that no change will completely satisfy those who want to allow churches the freedom to engage in political activity.
1 Andy Birkey, Pulpit Freedom Sunday: Complaint Filed Against Churches That Endorsed McCain, Sept. 29, 2008, at http://minnesotaindependent.com/10955/pulpit-freedom-sunday-complaints-filed-against-churches-that-endorsed-mccain (last visited Apr. 20, 2009)
2 I.R.C. § 501(c)(3) (2008).
4 Omnibus Budget Reconciliation Act, Pub. L. No. 100-203, § 10711, 101 Stat. 1330, 1330-464 (1987).
5 Ass’n of the Bar of N.Y. v. Comm’r., 858 F.2d 876, 881 (2d Cir. 1988).
6 Birkey, supra note 1.
8 Alliance Defense Fund, Pulpit Freedom Sunday, Sept. 25, 2008, http://www.alliancedefensefund.org/news/story.aspx?cid=4690 (last visited Apr. 20, 2009).
9 Alliance Defense Fund, The Pulpit Initiative, http://www.alliancedefensefund.org/issues/religiousfreedom/churchandstate.aspx?cid=4485 (last visited on Apr. 20, 2009). The Johnson Amendment refers to the amendment which added the political activity restriction to IRC § 501(c)(3).
10 Americans United, About AU, http://www.au.org/site/PageServer?pagename=aboutau (last visited on Apr. 20, 2009).
11 Americans United, Our Issues, http://www.au.org/site/PageServer?pagename=issues (last visited on Apr. 20, 2009).
12 Americans United, Brochure: Religion, Partisan Politics and Tax Exemption, http://projectfairplay.org/brochure/ (last visited on Mar. 24, 2009).
13 Americans United, Religious Leaders Tell Pollsters That Their Churches Do Not Endorse Political Candidates, Oct. 31, 2008, at http://www.au.org/site/News2?JServSessionIdr001=t6q2c4fhk4.app1b&abbr=pr&page=NewsArticle&id=10107&security=1002&news_iv_ctrl=1241 (last visited Apr. 20, 2009).
14 Norman J. Ornstein & Shirley Elder, Interest Groups, Lobbying and Policymaking, Congressional Quarterly Press, 64 (1978).