IRS to Churches: To Exercise Free Speech, Give Up Your Tax-Exempt Status

Erik Stanley | October 15, 2014 | 9:56am EDT
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So far this year, the Pulpit Freedom movement has seen more than 1,500 pastors nationwide preach sermons that analyze the positions of various political candidates—an exercise in free speech that dates back to the foundation of the church, yet, violates a flawed Internal Revenue Service rule known as the Johnson Amendment.

More than 3,800 pastors have been part of this movement in some form or fashion since its inception in 2008. The goal is to create a court case that will challenge the constitutionality of the Johnson Amendment in court.

The point of all this is not, as some detractors claim, to force politics into churches. It is precisely the opposite: to get the government out of the church. No matter what a person’s view is on what a pastor ought to preach, everyone should agree that the IRS is not an appropriate overseer. That’s precisely the kind of government involvement with churches that the authors of the Bill of Rights sought to prevent.

How can the free speech of pastors be relegated to a taxation issue when the government has never been allowed to condition any government-recognized status (such as tax-exempt status) on the surrender of a constitutionally protected freedom?  That’s why the IRS rule against free speech for pastors should be struck down as unconstitutional.

To illustrate, those who so easily say, “If you want to exercise your right to free speech, just give up your tax-exempt status,” don’t see the obvious problem with that line of reasoning. Are they also prepared to say, “If you want to exercise your right to be free from unreasonable search and seizure, just give up your tax-exempt status” or “if you want to maintain your right against cruel and unusual punishment, just give up your tax-exempt status”?

Just as with those other rights, free speech is a constitutionally protected freedom, not a privilege that the government can grant or revoke while dangling the tax-exempt status of the speaker’s church over his head.

And what about that status?  Does the federal government “subsidize” religion when the IRS grants tax-exempt status to a church? No. Tax exemption is not a government entitlement program. In fact, tax exemption is not a government subsidy at all, unless you believe that no one can actually have their own money and that it all belongs to the government—an idea that the U.S. Supreme Court rejected in an Alliance Defending Freedom case as recently as 2011.

In other words, the arguments against the Pulpit Freedom movement fail because the premise is all wrong. It’s not the case that the church has a bunch of the government’s money and must justify why the government can’t demand it back. No, the government has a duty to justify why it must take money that belongs to its citizens.

And since churches, like most charities, are non-profits that have been outside of the government’s legitimate tax base since the founding of the nation, the government has no automatic right to the church’s money just because its pastor won’t give up his constitutionally protected right to free speech.

Some point to the deduction individuals receive for their church contributions as a “benefit” that justifies suppressing the free speech and freedom of religion of churches. But individuals can also claim a deduction for contributions to other tax-exempt groups, such as veterans’ organizations, who are not subject to the Johnson Amendment. Why should churches be treated any differently?

Cynics and conspiracy theorists like to point to a handful of church excesses and demand that all churches be burdened with taxes. But the overwhelming majority of churches are far from “wealthy” and do tremendous good for their communities—often relieving the government and taxpayers of having to provide a whole host of community services. And that’s just one reason why the government has never done taxpayers and all citizens the disservice of taxing churches and charities. Reducing their ability to do good does no one any good whatsoever.

Most troubling of all is the ease with which some who oppose the Pulpit Freedom movement like to cite the so-called “separation of church and state,” while at the same time advocating that the state regulate the speech of the church. No, as America’s founders would have agreed, a pastor is the one who should determine what he says from the pulpit, not the federal government—and that is as it should be.

Erik Stanley is senior legal counsel with Alliance Defending Freedom and head of its annual Pulpit Freedom Sunday event, which began this year on Oct. 5 and continues through Election Day.

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