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Ministry aims to push 1954 tax law to Supreme Court
Question of the Day
“I think it’s a risk well worth taking,” said the pastor of the nondenominational church of about 150 members. “We would be delighted to be sued and have the opportunity to defend ourselves — in front of the Supreme Court, if necessary.”
Mr. Walker was one of more than 1,600 pastors — up from 33 five years ago — who risked their tax-exempt status to preach politics on “Pulpit Freedom Sunday” this month, challenging the 1954 tax law that prohibits nonprofits from politicking. For many of the protesting pastors, the law violates their Constitutional rights, and challenging the rule is a fight they welcome. Many of the participating pastors mailed recordings of their sermons to the Internal Revenue Service.
Despite the risks involved in thumbing their noses at the tax man, more pastors each year participate in the event. The brainchild of the Alliance Defending Freedom, a legal ministry that advocates for religious freedom, Pulpit Freedom Sunday was created as an attempt to provoke a test case that would force a court challenge to the 1954 law, known as the Johnson Amendment.
The IRS, however, is declining to take the bait.
“The IRS has been silent since we started this back in 2008,” said Erik Stanley, legal counsel for the Arizona-based alliance who is helping to oversee the initiative. “They’ve been very good at enforcing the Johnson Amendment through intimidation in such a way that they don’t have to go to court. In the process, the First Amendment rights of churches and pastors are sacrificed.”
Mr. Stanley said he expects involvement in Pulpit Freedom Sunday will keep growing until the IRS acts.
The IRS declined repeated requests to comment on the protest, except to refer The Washington Times to the segment of the federal tax code that states tax-exempt organizations are “absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.”
The tax code also warns that violations could get a nonprofit’s tax status revoked and make it vulnerable to excise taxes.
One sign that the federal government may not be eager to tackle the church protests — especially in an election year — was the announcement this week that the IRS will not conduct any church audits until the Treasury Department clarifies which officials have jurisdiction over the churches. The tax agency was forced to rethink its jurisdictional rules after a federal district court tossed out a case against a Minnesota church accused of promoting Republican Rep. Michele Bachmann from the pulpit in 2009.
Three years later, no work has begun on the jurisdictional rules. That delay may be the real roadblock stopping the IRS from cracking down on the Alliance Defending Freedom and churches, said John Pomeranz, a lawyer who specializes in lobbying and election-related activities by tax-exempt organizations.
“We have wondered whether or not the IRS is hamstrung at the moment,” said Mr. Pomeranz, who works at the Washington firm Harmon, Curran, Spielberg & Eisenberg LLP. “I think there is a fundamental question about the ability of the IRS to audit churches, and they need to address that before they can get to the question of whether they’re going to audit these Pulpit Freedom Sunday churches.”
The pastors who participated in Pulpit Freedom Sunday on Oct. 7 aren’t alone in their frustration. There is growing concern that if the IRS keeps turning a blind eye, it could lead to an influx of political opportunists in the nonprofit sector.
“Whether the IRS is simply giving churches a free pass or deciding that the entire melange of partisan activity by [nonprofit groups] and their religious equivalents is beyond their capacity to police, the result is really bad news,” Rick Cohen wrote on the Nonprofit Quarterly website. “If the nonprofit sector becomes seen by donors and politicians as yet another tool in the ever-expanding pool of dollars diverted to the ravenous appetite of political campaigns, good luck to all of us.”
Politics and the church
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By Michael P. Orsi
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