09/26/2012 05:32 pm ET Updated Nov 26, 2012

Pastors vs. IRS -- Do You Want to Pay for Right-Wing Lobbying?

Some pastors in San Diego are making the news with their plans to intentionally defy the IRS on October 7, and send the IRS videos of their defiance, in a supposed stand for freedom of religion. The "Freedom Pulpit Sunday" has been going on annually for some time now, at least since 2008. Tax-exempt organizations, including churches, are not allowed under 26 U.S.C. 501(c)(3) to "attempt to influence legislation or campaign for or against political candidates." Some churches consider this an unconstitutional restriction on their freedom of religion. For some reason -- must be just a coincidence -- the churches that feel this way all seem to support Republicans.

The First Amendment guarantees that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..." It is very well established that the Free Exercise clause does not mean you can do anything you want just because it's part of your religion. The first case ever to interpret the Free Exercise clause, 134 years ago, was Reynolds v. United States, 98 U.S. 145 (1878). The Court decided that polygamy was illegal even if you're a Mormon. The Court was worried that, if it allowed polygamy due to religious practice, there would be nothing stopping it from someday having to allow human sacrifice if it was for religious purposes.

The Supreme Court has interpreted the Free Exercise clause more or less restrictively over the decades since. It has often held that generally applicable laws can apply to people even if the laws do affect their religious practice. For example, in Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court upheld laws against peyote, even when used as part of a religious ritual. If the law had been passed specifically to persecute members of a religion, it would have been unconstitutional. But it was not an anti-religious law; it was a generally applicable anti-drug law that happened to affect religious practice. So it was held not to violate the Free Exercise clause.

What about taxes? Taxes are generally applicable laws. The government does not specifically tax churches because it wants to discriminate against them. In fact, if a church meets certain tests (that all tax-exempt organizations must meet), the government will even allow them avoid paying taxes. But the church does have to abide by certain restrictions. Among these: (1) the organization must be organized exclusively for exempt purposes; (2) earnings may not go to any individual; (3) it may not attempt to influence legislation or campaign for or against political candidates. Again, 501(c)(3). And if a church does not abide by these restrictions, then it is taxed just like any other organization. It's not discrimination to treat a church like anyone else.

Removing a church's tax-exemption does not prevent the church or its members from practicing their religion. It just means they'll have less money. The taxes are not discriminatory; they are the same taxes everyone else pays. Churches can still do plenty. They can, for example, invite political candidates to speak from their pulpits; and those candidates can speak freely without any fear of the church losing its tax-exempt status. They even get a subsidy (in the form of tax-deductions) from me, and every other taxpayer, to practice their religion. But not to lobby for or against candidates.

So why these pastors have this persecution complex is beyond me. They think that they should not have to pay taxes, their members should be able to deduct contributions they make to the church, and that the church should then be able to use the money for lobbying. Unlike anyone else in the country. Where do they get this stuff? Why in the world do they think that all of us should subsidize their lobbying efforts with our tax dollars?

The Supreme Court has already addressed this directly. It's not often that I get to quote William Rehnquist to support my arguments, but he wrote (in a unanimous opinion) that "Congress is not required by the First Amendment to subsidize lobbying." Regan v. Taxpayers With Representation, 461 U.S. 540, 546 (1983). I couldn't have said it better myself.