Does the IRS go too far with churches?

Today’s question: Has the IRS ever gone too far in pushing back against political speech by clergy? Previously, Lynn and Stanley discussed the Constitution’s position on pulpit politics, how far ministers can delve into politics without inviting federal scrutiny, whether churches should receive tax exemptions at all and if federal tax law muzzles free speech from the pulpit.

The IRS accepts too many excuses
Point: Barry W. Lynn

Frankly, the Internal Revenue Service has generally cut clergy too much slack when pastors and preachers become engaged in what certainly seems to be overtly partisan activity. It is important, though, to remember that in general the IRS is not required to disclose the resolution of every case it investigates. The public usually learns the result when the church under scrutiny itself reveals the result of IRS inquiries.

Americans United for Separation of Church and State is primarily interested in letting pastors know what the rules are. It is absolutely clear, most recently from a poll done by the Southern Baptist Convention, that most churchgoers want clergy to obey the law and, in fact, support the no-partisan-politicking rule.

When a pastor violates the law, he or she often does so deliberately. Sometimes, the pastor tries to get clever about it -- but in his heart, he knows his purpose.

Let me give you an example of a case in which I think the IRS really blew it. We reported a Baptist church in northern Arkansas back in 2004 where the pastor has held a service on Independence Day. Part of the church’s service even included registering voters registration (no problem with that). However, the pastor gave a sermon while flanked by two large screens. As he would start talking about an issue, photographs of George W. Bush or Sen. John Kerry would be flashed on the screen. When he said “one candidate” is fighting terrorists, a very nice official White House photo of Bush was shown; he’d then note in a mocking tone that “the other candidate believes we are not at war at all but in a lawsuit.” An unflattering picture of Kerry in a crowd was shown. It went on like this for several issues. Bush was praised and Kerry was belittled.

When the Arkansas pastor and I appeared on the Fox News Channel, he said he had done nothing wrong because he hadn’t even named the candidates. To me, that was a jaw-dropping excuse. I responded by asking him if he had ever heard the old saying, “A picture is worth a thousand words.” Apparently, the picture “loophole” was enough of an excuse for the IRS to drop its investigation.

My own denomination, the United Church of Christ, was investigated recently for inviting Barack Obama (himself a church member) to speak at its 2007 meeting in Hartford, Conn. The IRS regulations do permit candidates to speak to nonprofits in their “non-candidate” capacity. Regrettably, Obama alluded to his run for the presidency in two phrases in his address. The IRS got a complaint from somebody and looked into it. The church was vindicated because the government noted that it had done everything possible to try to prevent any electioneering (there were no Obama signs in the hall and we got assurances from the candidate’s staff that he would not try to turn it into a pep rally, among other things) and that it couldn’t be held responsible for a few inappropriate words from Obama.

Erik, as I’ve mentioned before, the law is always about drawing lines to signify what is acceptable and what is not. The IRS takes its responsibilities seriously. It has been issuing clarifications of its policies and more examples of what is and is not activity that crosses the partisan line. Sometimes, it draws the line in a place that I think is wrong. But I’ll conclude where I started: My principal concern is that the IRS sometimes accepts pastoral “excuses” that, to me, don’t pass either the proverbial “laugh” test or the equally significant “smell” test.

P.S., Erik: I’ve enjoyed our debate this week. Now when are you going to send me the names of all the churches that will be willfully violating tax law this weekend?

The Rev. Barry W. Lynn is executive director of Americans United for Separation of Church and State. He is an ordained minister in the United Church of Christ and a longtime civil liberties attorney.

Let churches be churches
Counterpoint: Erik Stanley

Barry, you continue to miss the point: The IRS goes too far any time it attempts to censor a pastor’s sermon. The government is prohibited from excessively entangling itself with religion by parsing the words of a pastor’s sermon to determine whether it violates tax law, which it must do to enforce tax law. That’s why it’s unconstitutional.

What doesn’t pass my “laugh” test is the IRS’ attempts to “clarify” the rules governing a pastor’s sermon. Allowing government agents any control over a sermon is like allowing my cat to take control of a jet plane. Will you ever admit that the government is incredibly ill-suited to do this?

Even if you won’t admit it, the Supreme Court has. In 1943, it unambiguously stated that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in ... religion, or other matters of opinion.” The court didn’t say “except when pastors address the subject of electoral candidates.” I side with the Supreme Court on this one.

The example you cite of the Arkansas church illustrates the absurdity of the current rule. In that case, the IRS never sanctioned the church, but the church did have to endure a public excoriation by your organization. Barry, churches are not political hockey pucks to be slapped around by agenda-driven groups. The fact that the IRS code allows you to engage in such tactics demonstrates that the Pulpit Initiative is well worth the effort.

Barry, you have been arguing that the sky will fall if pastors are allowed to speak freely. In fact, your assertion Thursday that you do not engage in hyperbole doesn’t square with Americans United’s blog post today calling one of the Pulpit Initiative pastors a “hurricane” that poses a “category 4 threat to American democracy.” The reality is that for 166 years of American history, since the ratification of the Constitution, pastors spoke freely and even endorsed or opposed candidates from the pulpit. Sometimes they did so during very contentious elections. What is plainly evident during that time is that churches didn’t turn into political machines and the republic didn’t fall apart. Barry, the weight of history is against you and the IRS.

Besides, I reiterate what you seem to repeatedly ignore: The Pulpit Initiative doesn’t demand that anyone endorse any candidate. Our aims aren’t thwarted by religious leaders you cite who say they don’t believe in talking about candidates from the pulpit. That’s totally fine. Our point is this: Under the Constitution, it’s up to them, not the IRS. And the government doesn’t have the right to condition 1st Amendment freedoms on a tax-exempt status -- which is not, in fact, a government subsidy.

If your concern is campaign finance, Barry, it makes no sense to censor a pastor’s speech when campaign finance laws can address any abuses. Don’t cut the heart out of the 1st Amendment like a sacrificial ritual when laser surgery can correct any excesses. The 1st Amendment is best protected when government regulation is very precise.

Pastors have the right to freely speak from their pulpits without being intimidated by the government or by Americans United. The Pulpit Initiative intends to restore and protect that cherished constitutional right. Barry, let’s allow the church to be the church. We call on you to relinquish your efforts to be the church speech police.

Erik Stanley is senior legal counsel and head of the Pulpit Initiative for the Alliance Defense Fund, a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith.