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Church legal challenge: Civil disobedience or violation of law?

Robert W. Rucker

The Alliance Defense Fund (ADF), an advocacy and action alliance group in Scottsdale, AZ, which has the stated purpose of defending religious freedom, sponsored a project to challenge the 54-year-old ban on churches being allowed to participate in political activities. The project, called “Pulpit Freedom Sunday,” took place Sept. 28, 2008, and appealed to as many church leaders as possible to purposely violate the federal law by stating their views about scriptural teachings and how current political candidates may or may not be following those teachings. One report said that 33 churches signed up to participate and the organizers viewed it as a success.

It has also been widely reported that this planned violation of the law is being watched by various legal experts and interested parties. In particular, the Americans United for Separation of Church and State (AUSCS), a nonprofit organization that describes itself as one of the “foremost defenders of the separation of church and state.”

This organization has publicly criticized the “Pulpit Freedom Sunday” project as being partisan politicking. According to AUSCS, endorsing political candidates from the pulpit is not only against the current law, but threatens to divide congregations and communities and replace the theological mission of the church with one focused on partisanship and division.

Investigated by the IRS

Both sides of the argument agree that that it is against the law for a church or religious organization to engage in political activity related to endorsing or supporting a particular political candidate. But groups such as the ADF want to see that law changed. In their view, the law will not change until it is challenged and the Pulpit Freedom Sunday project would be an effective way to make that challenge. Presumably, the churches who allow their pastors to endorse a political candidate on Pulpit Freedom Sunday will have their tax exempt status investigated by the Internal Revenue Service (IRS).

The IRS has the responsibility to enforce the laws as they exist and any church found to have engaged in endorsing a political candidate should expect the IRS to revoke recognition of that church’s tax exempt status. Once that occurs, the church will then have the opportunity to take their challenge into the court system. While the ADF does not elaborate on their desired outcome, having an active court challenge to the law could have the effect of changing the law either by getting a higher-level appellate court to declare the law as being unconstitutional or by raising awareness of the dispute in order to stimulate public outcry that would lead to legislative reform.

In American history, the Dred Scott case, decided in 1857 was a case that essentially maintained the status quo of slavery, but that led to dramatic social and legislative change. In that case, the United States Supreme Court issued an opinion that supported slavery and required Scott to remain as a slave even though he had resided in several states that did not recognize slavery as a legal status. Northern critics were outraged at the court’s decision. The Dred Scott case was one of the watershed events that led to the American Civil War and a change in the laws to ban slavery.

To seek change in social justice

Our country has often recognized civil disobedience, that is, purposely violating certain laws in order to challenge them, as being a viable method to seek change in social justice. Henry David Thoreau is often credited with being the first American writer to clearly describe the concept. He wrote an essay entitled “Civil Disobedience” in 1849 that encouraged citizens to resist laws that were unjust.

He said that “[i]n a republic like ours, people often think that the proper response to an unjust law is to try to use the political process to change the law, but to obey and respect the law until it is changed. But if the law is itself clearly unjust, and the lawmaking process is not designed to quickly obliterate such unjust laws, then the law deserves no respect — break the law.” In modern times, Martin Luther King Jr., a Baptist minister, advocated civil disobedience as being an effective way to bring attention to the need for civil rights reform. On the other hand, churches and Christians are expected to follow the law. There are plenty of examples of scriptural teachings on obedience to civil authorities.

The prohibition against churches endorsing political candidates has been challenged in court before. In the notable Branch Ministries case, the Federal Court of Appeals for the District of Columbia ruled in favor of the IRS when it revoked the church’s tax exempt status due to participation in political activities. Four days before the 1992 presidential elections, The Branch Ministries, a New York church took out two full-page ads, one in USA Today and one in the Washington Post, encouraging Christians to not vote for candidate Bill Clinton based upon his views about certain social issues. The IRS notified the church that it was initiating a church inquiry based upon the ads.

Revoked tax exempt status

The church responded that it had not engaged in improper political activities and declined to provide the IRS with certain requested documentation. The IRS revoked the church’s tax exempt status and the church sued. During the appeal, the church argued, among other things, that the law against political involvement by churches was a violation of the First Amendment free exercise of religion. The court rejected that argument and held that if a church wants to engage in such political activities it could do so by establishing a separate Section 501(c)(4) civic organization. The court also said that the church’s free speech rights were not being violated because the restriction was “viewpoint neutral,” meaning the restriction did not create a situation where one candidate would be favored over another.

While the Branch Ministries case was decided by a federal appeals court, the ADF would probably argue that it is not the highest judicial authority, the United States Supreme Court. However, even if the ADF manages to create a court case to challenge the law, there is no guarantee that the case would be heard by the Supreme Court. That court has discretion as to which cases it will hear, and when it refuses to hear a particular case, the ruling from the lower federal appellate court stands.

The IRS has a growing concern that churches are becoming involved in political activities and in 2006 issued the findings of a study where it found that 72 percent of churches that had been reported to it as having violated the law did engage in illegal intervention. As a result, the IRS announced that it has created a dedicated enforcement program to investigate these matters.

Part of the continuing debate in these matters remains that churches benefit from having tax exempt recognition from the government.

Their available resources are increased by not having to pay taxes, and that tax break was not given so that the churches could use them in political campaigns, but to promote religious worship activities. By accepting the tax exempt status, many commentators argue that churches should accept whatever limitations come with it.

Robert W. Rucker is an attorney with Anthony and Middlebrook, P.C., in Irving, TX, which specializes in the practice of nonprofit law. [churchlawgroup.com]

For the most current information on what a pastor or a church can legally do politically without jeopardizing their tax status, click on the appropriate following link, courtesy of Focus on the Family: http://www.citizenlink.org/pdfs/PastorsGuidelines_summary.pdf

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