Federal Attacks

Muzzling Christian Pastors and other IRS Suppression of Christian Expression

It's no surprise that extreme separationists would object to the public expression of religious views by Christian public officials. But how about the reverse situation: pastors offering their political opinions from the pulpit? Does the so-called separation of church and state require pastors not to engage in the political arena? Is it improper for them to touch on subjects involving politics? Of course not-the U.S. Supreme Court held in McDaniel v. Paty (1978) that ministers may serve in state legislatures and hold public office-but that doesn't keep zealots from fighting for that result through other means.

Since our moral views are so intertwined with our political views, it is difficult to imagine how pastors or priests could be expected to be silent on such matters. It is their business to lead on moral issues, and if we limit their ability to speak on political issues, we necessarily restrict them from influencing society on certain moral issues, not to mention their freedom of speech and religion. Should they keep their opinions to themselves, for example, on such issues as the life of the unborn because these questions are also political matters? Shouldn't they have a right to speak out against same-sex marriages, homosexual adoption, or polygamy if they choose to? You can see the absurdity of going down this road, and yet the Internal Revenue Service (IRS), through manipulation of Congress's tax exemption for religious organizations, has sometimes exerted a chilling effect upon the political speech and religious expression of pastors from the pulpit.

IRS Targets Free Expression Rights of Clergy

In the years following an amendment offered to a revenue bill by then-Senator Lyndon B. Johnson in 1954, the IRS has selectively used Section 501(c)(3) of the United States Code as a weapon against pastors, priests, and rabbis to inhibit them from speaking out on political matters, even when these matters are highly relevant to their faith messages. That the free speech and free exercise rights of the clergy can be so casually disregarded is a bad portent for religious freedom in this nation. It's especially troublesome if, as some have charged, the IRS applies these rules selectively against certain churches and not others. Former IRS commissioner Don Alexander made that very charge in an interview with Insight Magazine. "I think," said Alexander, "there was selective enforcement during the Clinton years, when a church against Clinton was audited and its exemption revoked, but Clinton and Gore making speeches from the pulpits ... has been ignored."

The accusation of selective enforcement came up again with the 2002 federal congressional elections. Catholic League president William Donohue charged that many churches (mostly AfricanAmerican) in numerous states permitted political candidates to campaign in their churches. One pastor, according to Donohue, actually instructed the congregation to vote for a named Democratic candidate for office. "Not all those who stumped in the churches were candidates," said Donohue. "Bill Clinton and Al Gore campaigned for Democratic candidates in several churches. And Donna Brazile of the Democratic National Committee went so far as to admit that 'we have our literature for our churches: This kind of rank electioneering in black churches would never be tolerated in Catholic churches. That the zealots who worship at the altar of separation of church and state have gone mute only proves how utterly unprincipled they are." If, indeed, we have deliberate selective enforcement, then it is the IRS, more than those it is selectively investigating, that is engaging in partisan politics rather than trying objectively to enforce the law with respect to 501(c)(3) organizations.

Section 501(c)(3) prohibits churches and other section 501(c)(3) organizations from taking part in partisan political activity. While churches may, along with other 501(c)(3) organizations, engage in lobbying activities, churches may not endorse or oppose candidates for political office. Some experts say that churches should think twice before distributing partisan voter guides, and that churches that try to influence the outcome of elections are in jeopardy of losing their tax-exempt status along with the ability to receive tax-deductible contributions.

For example, the IRS revoked the exemption status of the Church at Pierce Creek in Binghamton, New York, for publishing newspaper ads attacking Bill Clinton in 1992. But, as Mathew Staver of Liberty Counsel noted, this action was somewhat misleading. While the Church at Pierce Creek did have its tax-exempt letter ruling revoked, that revocation was largely symbolic, in that a federal court of appeals ruled that churches don't need a tax-exempt letter to be tax-exempt. Staver pointed out that, although churches may not endorse or oppose political candidates, they may "educate their members and the public regarding their core values and beliefs." Churches are also free to distribute non-partisan voter guides that "objectively" compare the candidates' respective positions on issues.

While Staver is correct, not all churches are aware of their rights, and separationist groups, such as Americans United for Separation of Church and State (AU) and the ACLU, are always waiting in the wings to pounce at any opportunity. For example, in December 1998, AU boasted that it had reported eight churches to the IRS for distributing Christian Coalition Voter Guides during the November elections. Even if these reports didn't ultimately result in the loss of tax-exempt status for the churches, they probably did cast a chill upon the churches' expression. It's simply not a healthy thing to have the IRS, with all its awesome power, investigating churches in this manner. In addition, AU went after the Christian Coalition itself and eventually succeeded in convincing the IRS to revoke the coalition's taxexempt status for electioneering activities.

Kevin J. Hasson, president of the Becket Fund for Religious Liberty, claimed that, just before the November 2002 elections, AU asked the IRS to investigate three cases of what AU called "improper partisan political activity by a church." Hasson contended that the fear of such investigations caused a chilling effect on free speech and free exercise rights. Hasson cited the Becket Fund's efforts on behalf of military chaplains in Rigdon v. Perry (1997), in which a federal court in Washington, D.C., said that the government could not bar chaplains from discussing in their sermons President Clinton's veto of the partial-birth abortion bill. Hasson admitted that, while all legal issues in this area are not settled, it is "certainly clear... that, when it comes to regulating political speech from the pulpit," (quoting the Rigdon court) "'any attempt to impinge on the [chaplains'] constitutional and legal rights is not acceptable."

Some groups, including the Concerned Women for America (CWA), indeed view the IRS's application of the law as potentially chilling on religious expression. CWA's Michael Schwartz rightly noted, "If a church could be put out of business by the adverse decision of an IRS official, then the state has the power to suppress a church. This is something that should be of grave concern to all citizens, especially those who are church members. Even worse, the event that might trigger the suppression of a church by the government is an otherwise legal exercise of free speech, and that speech becomes punishable because it is deemed politically undesirable by officials of government. Governments should never have this much power, and churches must never be this much at the mercy of state officials."

That the IRS claims only to enforce this provision of the law when it receives a complaint from third parties is little comfort to its opponents. They envision a situation where the clergy, for fear of losing their tax-exempt status, might hold back on spiritual issues that arguably have political overtones. As a result of the law, pastors have precluded pro-life groups from holding meetings on church property, prohibited pro-family political candidates from circulating campaign fliers in their parking lots, and sometimes recalibrated their sermons to avoid forbidden subjects. As Michael Schwartz concluded, "A free people, whose nation was dedicated to religious liberty at its foundation, should never tolerate such a subordination of church to state."

Concerned about this trend, in 2002 some members of Congress proposed a measure called the Houses of Worship Political Speech Act, which was aimed at removing the authority of the IRS to revoke a church's tax-exempt status for engaging in "partisan" political activity. The bill failed resoundingly, but its proponents were not discouraged. Beyond targeting the free expression rights of the clergy, the IRS has also challenged the housing tax exemption it has enjoyed since 1921.

IRS v. Christian Publishers

The IRS has also been known to set its sights on Christian publishers. It challenged Christian Service Charities' (CSC) deduction of Sunday school materials for overseas use, saying they are religious and have no real value. CSC's Joel MacCollam said the IRS "claims that faith-based material (in this case, Sunday School and Vacation Bible School publications) has no intrinsic impact on human lives or development programs to warrant a corporate donor claiming tax deductions because the material is religious in content." The IRS's position, essentially is that gifts-in-kind of religious items are not deductible. Reverend Louis P. Sheldon, chairman of the Traditional Values Coalition, denounced this as "religious bigotry," saying the challenge against allowing "tax deductions for charitable Christian materials is a direct attack on faith-based charities and the work of spreading the Gospel of Jesus Christ. It is a First Amendment violation."

FCC Targets Religious TV

In 2000, the Federal Communications Commission (FCC), in a decision to approve a transfer of licenses between certain TV stations, established new, very strict standards for "educational" programming that non-commercial educational stations are required to air in order to retain their licenses. Religious broadcasters and station owners were concerned that the new rules targeted Christian programs because they were not generally "educational" and that the FCC decision could force stations to drop all faith-based programming. In its written opinion, the FCC stated that "not all programming, including programming about religious matters, qualifies as 'general educational' programming." And then the FCC took direct aim at religious programs. "For example," said the commission, "programming primarily devoted to religious exhortation, proselytizing, or statements of personally held religious views and beliefs generally would not qualify as 'general educational' programming Thus, church services generally will not qualify as 'general education' programming under our rules."

Brandt Gustavson, president of the National Religious Broadcasters (NRB), said the FCC was trying to draw a difficult line between programs teaching about religion (which are acceptable to the FCC) and those involving religious exhortation or statements of personal religious belief, which are forbidden. "The order," said Gustavson, "contains a disquieting implication that the government may restrict certain strains of religious speech-disfavoring more passionate and emotional expressions of faith-while not constraining others that are more intellectual' and drained of human emotion.

Although paragraph 44 of the order said the FCC would not "disqualify any program simply because the subject matter of the teaching or instruction is religious in nature," it added language that made religious broadcasters wonder. "We reiterate that the reserved television channels are intended 'to serve the educational and cultural broadcast needs of the entire community to which they are assigned,' and to be 'responsive to the overall public as opposed to the sway of particular political, economic, social, or religious interests."' Two commissioners, Harold Furchtgott-Roth and Michael Powell, strongly dissented, criticizing the ruling as approaching "unacceptable content regulation" They specifically addressed the majority's assertion that church services would not qualify as general educational programming. "We ask, however, why such programming might not qualify as 'cultural' programming, just as a presentation of an opera might?"

Following the ruling, a number of commentators strenuously objected. The Wall Street Journal editorial page described the decision as establishing "a new litmus test for speech that targets religious expression." Christian evangelist Chuck Colson wrote, "The longterm implications of the ruling are grave, not only for Christians but for anyone who values free speech. The ruling puts the FCC in the position of determining which religious expression is acceptable and which is not Think about it. Does this mean, for example, that the Pope's Christmas Mass would be prohibited? And how about discussion of abortion or homosexuality? Where does the censorship end? ... Have no fear, this will not mean that PBS would have to reconsider airing Bill Moyers' attack on evangelicals in politics, programs celebrating alternative lifestyles, or New Age spirituality. That's 'education: But an interview with me presenting a biblical woridview would be forbidden." Congressman Michael G. Oxley, a member of the House Commerce Subcommittee on Telecommunications, protested the ruling in a letter to FCC Chairman William E. Kennard. Oxley said he would introduce legislation to nullify the objectionable portion of the ruling.

Perhaps in response to the public outcry or to Congressman Oxley's threatened legislation, or both, the FCC reversed itself less than a month after its original controversial decision by voting 4-1 to rescind the "additional guidelines" concerning religious programming. In its press release explaining its reversal of the earlier ruling, the FCC said that "widespread public confusion" over the ruling was "causing considerable misunderstanding." The commission said it would return to handling broadcast programming judgments on a case-by-case basis. The lone dissenter, Commissioner Gloria Tristani, accused the majority of surrendering to "an organized campaign of distortion and demagoguery."

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