- The Washington Times - Thursday, November 15, 2012

An atheist organization is suing the Internal Revenue Service for failing to take action against churches that the group says have violated the tax code for nonprofits by engaging in politics.

The Freedom From Religion Foundation, a watchdog group based in Madison, Wis., filed a federal lawsuit this week that cited the Oct. 7 actions of 1,600 pastors who violated the tax code on “Pulpit Freedom Sunday” – a nationwide display of free speech. After weeks of silence from the IRS, the Freedom From Religion Foundation took the matter to court.

“This looks like the only way to get some action out of the IRS,” said Annie Laurie Gaylor, co-president of the foundation.

She said the foundation has written to the IRS about the issue for years, but Pulpit Freedom Sunday was the last straw.

“The tipping point would have been the braggadocio of [1,600] pastors claiming they endorsed from the pulpit. The number of complaints we’ve received has been escalating, and we have no explanation from the IRS. This is our way of finding out what is going on.”

The IRS media relations office declined to comment, saying it does not comment on court cases.

Erik Stanley, legal counsel for the Alliance Defending Freedom, said a lawsuit is exactly what his group was looking for when it launched the Pulpit Freedom Sunday initiative in 2008 to challenge the Johnson Amendment, the part of the tax code that requires nonprofit groups not to engage in political speech as a condition of that status.

Still, he doesn’t think this particular case will go far.

“I think the lawsuit itself really borders on frivolous. I don’t know how the FFRF can claim they’ve been harmed by the IRS’ refusal to enforce the Johnson Amendment,” Mr. Stanley said. “But, on the chance it does, then we will seek to protect those churches.”

The complaint from the Freedom From Religion Foundation says churches are getting “preferential treatment” over other nonprofits, including the foundation itself. The group pointed to other examples of political involvement from religious groups, such as full-page political newspaper ads placed by the Billy Graham Evangelistic Association.

If allowed to ignore the ban, Ms. Gaylor said, churches may become funnels for tax-deductible, unreported campaign money.

“If churches are allowed to keep their tax-exempt status and electioneer, it will be the downfall of our republic,” she said. “It isn’t just the power of the pastor; it’s the implication of the whole system.”

The Alliance Defending Freedom started Pulpit Freedom Sunday in order to provoke a response from the IRS. The initiative encouraged pastors to make candidate endorsements from the pulpit, record their sermons and send the tapes to the IRS. Churches can and often do speak out on public issues, host government officials and distribute voter guides, but these activities have not been considered as Johnson Amendment violations unless the church says “vote for Candidate X.”

“It’s basically in the hopes of generating a test case on the constitutionality of the Johnson Amendment itself,” Mr. Stanley said. “We seek to get the government out of the pulpits of America. When the chance comes to argue it in court, regardless of how or if, we’ll be ready.”

Weeks after the October demonstration, IRS spokesman Russell Renwicks said the tax agency had put a halt on all church audits. Although the IRS later repudiated that statement, there was speculation of a stalemate within the organization as a result of another lawsuit.

“In a recent case [it was argued] that the IRS was not proceeding properly,” said John Pomeranz, a Washington-based lawyer who specializes in election-related activities by tax-exempt organizations. “The court ruled against the IRS and blew up their process for auditing churches.”

This could explain the IRS inaction.

“We have wondered whether or not the IRS is hamstrung at the moment – if they are even able to audit churches right now,” Mr. Pomeranz said. “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 pastors.”

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