STANLEY: Revenuers vs. religion?

By Erik Stanley | Thursday, September 25, 2008

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Churches do not turn into political action committees simply because their pastors want to preach about what the Bible says on a political candidate's positions. And that will be just as true when pastors participating in the Alliance Defense Fund's Pulpit Freedom Sunday do that kind of preaching this Sunday.

Despite what you may have heard, the Pulpit Initiative, of which Pulpit Freedom Sunday is a part, is not a demand that pastors endorse candidates. It is a plan to let churches decide for themselves how they will exercise their First Amendment rights without fearing the tax man.

Under the First Amendment, a pastor, not the Internal Revenue Service, determines what a sermon will say. It should seem obvious, but a pastor's duty to speak truth from the pulpit — about anything — is a duty owed to God, not the IRS.

Because pastors have a constitutional right to speak about biblical truths from the pulpit without fear of punishment, no one should be able to use the government to intimidate pastors into giving up that right.

Ironically, under current law, a pastor can talk about anything but the positions of electoral candidates. Yes, it's silly. Arguing that a tax agency should hold veto power over sermon content is like arguing that the Department of Transportation should decide a school lunch menu. But that doesn't stop organizations like Americans United for Separation of Church and State from using the IRS to intimidate churches into silence.

AU assumes any tax exemption is a government subsidy. That would be true if the government owned all property and income, but in America, it doesn't. Nonprofits are not tax exempt as some kind of compensation for their charitable work. They are exempt because they are outside the government's appropriate tax base.

And churches are, specifically, all the more tax exempt. Tax exemption of churches is not a benefit but a right enjoyed by churches under the Constitution. Churches were tax exempt long before the IRS even existed. As the U.S. Supreme Court has noted, "The power to tax involves the power to destroy," and churches are exempt from taxation under the principle that there is no surer way to destroy religion than to begin taxing it.

Regarding this claim, AU's Rob Boston recently wrote, "I can read, and I don't see any references to tax exemption anywhere in the Constitution." That's interesting reasoning coming from AU, considering "separation of church and state" doesn't appear anywhere in the Constitution either.

When groups like AU argue that the IRS has the right to monitor a pastor's sermon, they simply talk out of both sides of their mouth. The truth is that the pulpit is the first place the government should stay out of in order to maintain religious freedom.

In fact, for 166 years, churches freely preached directly on political candidates' qualifications for office. That was no problem when the Constitution was signed, or when the first commissioner of internal revenue was appointed in 1862, or when the federal income tax was authorized by the 16th Amendment in 1913. Nor were churches transformed into political machines. Churches simply spoke when their moral voice needed to be heard — even during election season — and decided for themselves how they wanted their pastors to preach.

When the IRS code was amended in 1954 to ban "intervention" in political campaigns, it was an act of political retaliation by then-Sen. Lyndon Johnson against two anti-communist groups. It had nothing to do with "church politicking," and scholars agree churches were not the target of the regulation.

That doesn't seem to matter to AU, which wrote, in another context, "constitutional violations do not get grandfathered in simply because of the passage of time." Well, the unconstitutional Johnson Amendment is an ax that has been around for a half century, but that doesn't make it constitutional. And neither does the feeling of power the AU enjoys in prodding the IRS to wield it.

It is time for churches to exercise their constitutional rights as they were guaranteed, not as they have been gutted by the tax code. That's not "civil disobedience." It's free speech and the free exercise of religion.

Erik Stanley is senior legal counsel and head of the Alliance Defense Fund's Pulpit Initiative (www.telladf. org/church). ADF is a legal alliance employing a unique combination of strategy, training, funding and litigation to protect and preserve religious liberty, the sanctity of life, marriage and the family.

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