Inside the First Amendment
By Charles C. Haynes
First Amendment Center senior scholar
During Sunday morning worship on Sept. 28, the Rev. Dan Fisher told his congregation at Trinity Baptist Church how to vote on Nov. 4 — an act of civil disobedience that he knew would endanger the church’s tax-exempt status.
The next day, right on cue, Americans United for Separation of Church and State called on the Internal Revenue Service to investigate the Yukon, Okla., church for violating the federal ban on political endorsements by tax-exempt houses of worship.
Pastor Fisher welcomes the challenge. He’s one of 31 Christian ministers from across the nation who participated in what organizers dubbed “Pulpit Freedom Sunday,” a campaign initiated by the Alliance Defense Fund, a conservative Christian legal group based in Arizona.
The goal is simple: Overturn through litigation the IRS regulation prohibiting partisan politics from the pulpit. ADF isn’t seeking to lift all IRS rules against electioneering by religious groups — just the restriction on what pastors can say from the pulpit.
Public opinion appears to support the pulpit rule. When asked if religious leaders should be allowed to openly endorse political candidates from the pulpit without endangering the tax-exempt status of their organization, 54 percent said no, according to the State of the First Amendment survey released last month by the First Amendment Center.
Legal restriction on political endorsements by religious groups is a relatively recent development in the United States. Early American history is replete with examples of politically charged sermons with highly partisan content. The current ban on electioneering by tax-exempt groups dates to 1954, when then-Sen. Lyndon Johnson pushed an amendment to the tax code through Congress with little debate.
Proponents of the IRS rule argue that tax exemption is a privilege, not a right — a government benefit extended to charities, including religious groups, to serve the public good, not partisan politics. If churches want freedom from IRS restrictions, they can forgo tax exemption. But if houses of worship take sides in elections, don’t ask taxpayers to subsidize the message.
Opponents counter that tax-code restrictions on what is said from the pulpit violate both freedom of speech and religion as protected by the First Amendment. Moreover, empowering the IRS to parse what is and isn’t “partisan” in sermons undermines the very principle of church-state separation that advocates of the IRS rule say they are anxious to uphold.
Note that this debate isn’t about the freedom of religious leaders to preach from the pulpit about social and political issues. Both sides agree: Nothing in the tax code prohibits sermons that address public-policy questions of concern to people of faith. The IRS draws the line only when clergy take sides in political campaigns by endorsing (or opposing) political parties or candidates when speaking from the pulpit.
Pastor Fisher and his fellow protesters seek to erase that line by defying the law. Past accusations of pulpit partisanship have usually involved ambiguous sermons that tell people how to vote without naming names. But these 31 pastors proclaimed outright endorsement of one candidate (John McCain) and/or attacks on another (Barack Obama). Now the IRS has little choice but to investigate. That process will likely end in a test case challenging the pulpit restriction.
I confess I have no idea how Jesus would vote — and I wouldn’t attend a church where the pastor turned the pulpit into a partisan platform. At the same time, however, the question of when a sermon becomes too political should be determined by worshipers in pews — not bureaucrats in Washington.
There’s nothing wrong with the broad IRS prohibition on electioneering by tax-exempt religious groups (and all other nonprofits). Churches are supposed to be places of worship and prophetic witness, not political-action committees.
But in the spirit of the First Amendment, maybe it’s time to consider a “pulpit exception” to that ban in the tax code: When preaching from the pulpit, pastors should be left to follow the dictates of conscience – not the regulations of government.
Charles C. Haynes is senior scholar at the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: firstamendmentcenter.org. E-mail: [email protected].