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Pastor tests IRS by endorsing candidate

Hopes to undo tax code rule

- The Washington Times - Tuesday, June 15, 2010

A South Dakota minister says he wants to do for religious freedom what the Rev. Martin Luther King Jr. did for civil rights.

The Rev. H. Wayne Williams, pastor of Liberty Baptist Tabernacle in Rapid City, last month endorsed GOP state Sen. Gordon Howie in the South Dakota governor's race, in defiance of the Internal Revenue Service and a federal court ruling and in hopes of producing a landmark constitutional test case.

At issue is an IRS regulation called the Johnson Amendment, enacted in 1954, that says that 501(c)(3) nonprofit organization, the section of the tax code under which most churches file, cannot endorse a specific political candidate and retain its nonprofit classification.

"Why is it that I cannot walk with my Master, my Lord, in speaking on government issues?" asked Mr. Williams, citing the example of other religious leaders such as King, John the Baptist and biblical prophets, all of whom involved themselves in political issues.

Mr. Howie's campaign, which had actively solicited support from the state's pastors, touted Mr. Williams' endorsement in a press release last month.

Mr. Williams said he will fight for his right to speak from the pulpit whatever he sees most fitting for his congregation, regardless of the consequences.

"I would welcome the history of my Baptist forefathers in going to jail over these issues," he said. "I will not be silenced by intimidation."

The state of Rhode Island, for example, traces its founding to Roger Williams' flight from Puritan Massachusetts and its official church to establish a colony with religious freedom. He set up the New World's first Baptist church in Rhode Island in 1639.

The Rapid City pastor is working with the Alliance Defense Fund, a conservative-leaning group that defends religious freedom.

Erik Stanley, an attorney for the organization, said the fund has been hoping that by encouraging pastors to break the federal tax code restrictions, they could get a test case to court and have the law declared an infringement of the First Amendment right to the free exercise of religion.

"This is your bread-and-butter civil rights case," Mr. Stanley said.

The court ruled on the Johnson Amendment in a 1992 case in which the U.S. Court of Appeals for the D.C. Circuit ruled that a church does not have a constitutional right to endorse a political candidate, but can speak on political issues.

Although the original idea was to prevent entanglement of church and state, Mr. Stanley said, the Johnson Amendment winds up giving the state oversight of the content of churches' political speech in order to determine whether it constitutes "endorsement" of a candidate.

The Rev. Barry W. Lynn, executive director of Washington-based Americans United for Separation of Church and State, said the question of whether the IRS can enforce regulation of a pastor's endorsement is not complicated given the 1992 ruling.

"I think the answer is 'Yes, you can,' and this is not a big ploy from Lyndon Johnson," he said.

After reports in the South Dakota press about the pastor's May 16 endorsement of Mr. Howie, Mr. Lynn wrote on June 10 to the IRS about what he called "a recent example of intervention in a political campaign by a church in South Dakota."

"Liberty Baptist appears to be in clear violation of federal law," Mr. Lynn wrote. "Accordingly I am asking the IRS to investigate this matter and enforce the law accordingly."

The IRS has not indicated whether it will pursue an investigation of the South Dakota church.

To the liberal-leaning Americans United, any political speech in religious meeting places should be monitored to keep churches away from politics; the Alliance Defense Fund, however, sees such heavy regulation as a further entanglement of church and state.

But Mr. Lynn called the Johnson Amendment "no more entanglement than giving a church tax exemption in the first place."

The issue of church politicking also excites partisan divide. Conservatives say evangelical and other churches sympathetic to the religious right have come under pressure about endorsing candidates under the watchful eye of left-leaning pressure groups. By contrast, liberal congregations, especially black churches, freely say what they want without shame or consequence, they argue.

Rick Garnett, a law professor at the University of Notre Dame, said there is a fine line between religious freedom and allowing nonprofits to become mouthpieces for political campaigns.

"The line between religion and politics has never been clear," he said. "Its a line between justice and just funneling candidates money."

That uncertainty is the reason the Alliance Defense Fund hopes to get a test case to court.

Mr. Garnett said he does not think such a case will return to court because the IRS does not like to aggressively enforce tax laws regarding pulpit speech.

"It's a really tricky business when church's sermons start getting too political," he said.

The ban on political campaign activity does not restrict leaders of organizations from expressing their views on political matters if they are speaking for themselves as individuals. Nor are leaders prohibited from speaking about issues of public policy. However, for their organizations to remain tax-exempt under section 501(c)(3), leaders cannot make partisan comments in official organization publications or at official functions of the organization.

Mr. Williams sees such a law, and Americans United's attempt to enforce it, as "shackling the hands of the churches" and using intimidation to prevent them from exercising their religious freedoms.

"A pastor is responsible for teaching his people - not controlling them, but informing them," he said. "A true shepherd informs his people and lets them make their own decisions."

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