A Stitch in Haste

To review (and, with the California gay marriage decision, to preview): The Internal Review Code requires all tax-exempt institutions to abstain from endorsing candidates for office as a condition of their preferential status. The restriction does not apply only to churches and does not apply to issue advocacy generally. Only endorsing particular candidates for particular offices is proscribed.

So how is this anything other than a disingenuous stunt aimed at the misinformed?

The Alliance Defense Fund announced a new initiative Friday that will challenge the tactics of groups that use the Internal Revenue Service to intimidate churches and pastors into silence on important issues of the day.

"Pastors have a right to speak about biblical values from the pulpit without fear of punishment. No one should be able to use the government to intimidate pastors into giving up their constitutional rights," said ADF Senior Legal Counsel Erik Stanley. "The government can't demand that a church give up its right to tax-exempt status simply because the pastor exercises his First Amendment rights in the pulpit. Groups like Americans United intentionally trigger IRS investigations that will silence churches through fear, intimidation, and disinformation."

The new initiative will equip, protect, and defend pastors who wish to exercise their First Amendment right to openly discuss the positions of political candidates and other moral and social issues from the pulpit. Participating pastors across the country will deliver a sermon along these lines in their own churches Sept. 28.

Read that again: "The government can't demand that a church give up its right to tax-exempt status simply because the pastor exercises his First Amendment rights in the pulpit."

To use the theocrats' favorite jurisprudential stunt: Where in the Constitution does it say anything about a "right to tax-exempt status"?

"The First Amendment" is not an answer. The tax-exemption in no way unfavorably* singles out churches relative to other civic institutions. Any assertion to the contrary is an un-Christian lie. Nor does it force any such institution, religious or otherwise, to do anything or refrain from anything. Any assertion to the contrary is an un-Christian lie. Any church or cleric is free, at any time, to say anything they want about any candidate they want. All they have to do is give up their tax-exempt status (which, recall, Congress could simply abolish any time it wished). Any assertion to the contrary is an un-Christian lie.

The theocrats (whose Bibles seem to have been miraculously redacted of that pesky "render unto Caesar" passage) appear perfectly willing to completely misrepresent the First Amendment, the Internal Revenue Code, the case law**, and the nature of their record of flagrantly illegal (and un-Christian) abuse of the tax-exempt status that allows them to suck so shamelessly at the taxpayer teat.

Some have suggested that the true purpose of this stunt is to generate a test case in the courts. Yeah right, good luck with that. There is simply nothing to test — because, again, there is absolutely no theory of constitutional interpretation, by anyone of any political orientation, that would dare suggest that there is a First Amendment "right to a tax break." It is beyond absurd.

More thoughts at Americans United, Religion Clause, Wall of Separation.

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*Indeed, some elements of the tax code actually treat churches more favorably than other civic institutions:

Although most organizations seeking tax-exempt status are required to apply to the Internal Revenue Service ("IRS" or "Service") for an advance determination that they meet the requirements of section 501(c)(3), a church may simply hold itself out as tax exempt and receive the benefits of that status without applying for advance recognition from the IRS.
...
The unique treatment churches receive in the Internal Revenue Code is further reflected in special restrictions on the IRS's ability to investigate the tax status of a church. The Church Audit Procedures Act ("CAPA") sets out the circumstances under which the IRS may initiate an investigation of a church and the procedures it is required to follow in such an investigation.
--Branch Ministries v. Rosotti, 40 F. Supp. 2d 15 (D.D.C. 1999)

**Especially Regan v. Taxation With Representation, 461 U.S. 540 (1983):

Congress has not infringed any First Amendment rights or regulated any First Amendment activity. Congress has simply chosen not to pay for ... lobbying. We again reject the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State.