As citizens we are called to work toward a just society. It should be no surprise, then, that people of faith have been engaged in virtually every social reform movement throughout American history. Religious individuals and houses of worship have the right and responsibility to take part in important public debates. While the Constitution and other laws protect that right, tax regulations that govern nonprofit entities, including houses of worship, bring legal restrictions.
Religious organizations, like other nonprofits that receive special tax treatment under Internal Revenue Code Section 501(c)(3) allowing donors to deduct donations, are restricted from dedicating a substantial part of their activities to attempting to influence legislation and intervening in political campaigns. That does not mean that they cannot speak out on the social, moral and ethical policy issues of the day. It would be hard to imagine otherwise. Churches may not, however, support or oppose candidates for office without jeopardizing their tax-exempt status. This restriction includes a prohibition on statements of endorsement or opposition for a candidate from the pulpit.
In recent years, the Internal Revenue Service has increased enforcement and issued improved guidance to help tax-exempt organizations avoid implicit endorsements. These efforts are meant to protect the integrity of nonprofit organizations designated under Section 501(c)(3) of the Internal Revenue Code, including churches. According to the Code, such organizations are allowed to receive tax-deductible contributions. They may not "participate in or intervene in any political campaign on behalf of any candidate for public office." Of course, individual ministers can endorse candidates, and churches may be involved in various educational and civic activities. The organizations, however, cannot be used to tell people for whom to vote. A whole other body of law governs entities that are engaged in promoting political candidates.
Despite IRS efforts, some preachers continue to direct their parishioners in the voting booth, including some who proclaim that a political party or particular candidate is the choice of God. Each year the issue grabs a larger spotlight partly because of a campaign, coordinated by a consortium of attorneys known as the Alliance Defense Fund (ADF), to get pulpit endorsements and provoke a fight with the IRS. This year, that effort culminates on September 26. While the results of this effort will not be known for some time (82 churches ultimately participated in 2009, according to ADF), the flaws of this campaign and its aim are readily apparent.
Factually, the campaign rests on a false premise. ADF greatly exaggerates the impact of the current rule, claiming ministers are muzzled. Preachers are perfectly free to interpret and apply Scripture as they see fit, speak out on moral and ethical issues of the day, and urge good citizenship practices, such as registering voters and encouraging them to vote. In exchange for the most favored tax-exempt status, they just can't use their nonprofit entity to tell the faithful for whom to vote.
Legally, the campaign relies on a flawed theory that is unlikely to succeed. Despite claims to the contrary, tax exemption is not a constitutional right but a reasonable regulation. The Supreme Court has held that tax exemption for churches, along with other nonprofits, is constitutionally permitted by the First Amendment's Establishment Clause. The Court has never held that it is constitutionally required by the Free Speech or Free Exercise Clause. Reasonable and evenhanded taxation simply is not a "substantial burden."
Historically, the campaign incorrectly frames the issue as one of regulatory overreach. Though critics of the IRS rule say it dates back to an effort by then-Sen. Lyndon B. Johnson to quiet his opponents in the nonprofit sphere and was not intended to target churches, it is not clear that churches had long been engaged in the partisan electoral fights. The idea that churches, in order to be able to perform their prophetic role, must remain independent from political parties and capable of holding the government accountable has been around for much longer.
Ethically, the campaign raises a number of concerns. Should pastors be writing sermons with a purpose of provoking a legal challenge? Should lawyers sworn to uphold the law be organizing a campaign to get ministers to break it? Surely churches, no more than other entities that are organized for religious and charitable purposes, should not act as political committees without complying with laws that govern those entities.
Practically, the campaign urges unwanted change. Polls show that a large majority of those surveyed do not want their churches to endorse candidates. In fact, avoiding even the appearance of partisanship has been a major theme for many churches that are active in the public square. Many evangelical leaders have decried the politicization of faith and emphasized the need to avoid equating religious ideas with political labels.
With all these problems and an asserted interest in promoting religious freedom, it seems a consortium of Christian lawyers could find a greater cause to serve. Protecting religious freedom for all is a matter of conscience and conviction. It is a matter of preserving the legacy of our forebears and protecting the vital role of religion in our society. That freedom is not served -- and may be jeopardized -- by using religious institutions to promote political campaigns.