November 2011 Church & State | Featured

The Rev. Jim Garlow, senior pastor at Skyline Church in La Mesa, Calif., wants you to know that he is a big fan of Texas Gov. Rick Perry (R).

“Rick Perry has created more jobs in Texas, in one state, than the other 49 states combined, for five years in a row,” Garlow said Oct. 2.

“The fact is, when [Texas] ran a deficit, they addressed it straight on like every state is supposed to do, and has to do,” he said.

After gushing over Perry, Garlow went on to praise (albeit less glowingly) several other candidates seeking the Republican Party presidential nomination, including Rep. Michele Bachmann (Minn.), Rep. Ron Paul (Texas), former Massachusetts Gov. Mitt Romney and former Sen. Rick Santorum (Pa.).

When Garlow made these comments regarding the race for the GOP presidential nomination, he raised a major question: Did he violate the 501(c)(3) prohibition against campaign intervention? The Alliance Defense Fund (ADF), for one, hopes the answer is “yes.”

Garlow made his remarks, 15 minutes of which are available on YouTube, during a sermon before his congregation as part of “Pulpit Freedom Sunday.” This year marked the fourth edition of Pulpit Freedom Sunday, an event organized by the ADF that encourages pastors to give sermons “that present biblical perspectives on the positions of electoral candidates.”

According to the ADF, more than 475 pastors from 46 states plus Puerto Rico participated this year, up from about 100 participating pastors in 2010 and from 33 in 2008.

Beyond encouraging pastors to speak about political issues and candidates, Pulpit Freedom Sunday has another purpose, one with which Garlow seems happy to comply. The ADF wants at least some of those participating pastors to endorse or oppose a candidate for public office in violation of the Internal Revenue Code prohibition against political intervention by organizations described in section 501(c)(3).

This provision of the code says applicable organizations cannot “participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.” It was established in 1954 by an amendment introduced by then-Sen. Lyndon Johnson as a reaction to non-profits that attacked him during a tight race for his Senate seat. Today, it serves as an important factor in preventing the politicization of tax-exempt houses of worship.

The ADF opposes the Johnson Amendment and hopes Pulpit Freedom Sunday will goad the IRS into fining a church or even revoking the tax exemption of one, thus setting up a legal challenge in which the ADF would try to overturn the law on free-speech grounds.

Americans United for Separation of Church and State put Pulpit Freedom Sunday participants on notice before the event this year, warning churches that their involvement would be a violation of the tax code and it could land them in front of IRS auditors.

“Church electioneering is illegal, and the people don’t support it,” AU Executive Director Barry W. Lynn said in a statement days before the event. “It’s time for the Religious Right to stop trying to drag churches into backroom politics.”

Despite efforts by AU and others to report rogue churches and pastors that violate the tax code, the IRS has yet to take any public action to discipline any of the churches that have participated in Pulpit Freedom Sunday since the initiative’s inception in 2008. Part of the explanation for the inaction is a procedural glitch in the IRS’s church tax-auditing process, which was exposed in early 2009 by a ruling in a case unrelated to Pulpit Freedom Sunday.

The IRS in 2008 attempted to initiate an audit of the Living Word Christian Center in Brooklyn Park, Minn., but the church challenged that audit on the grounds that an inappropriate Treasury Department official had authorized it.

A judge in the U.S. District Court for the District of Minnesota sided with the church, ruling that the IRS director of exempt organizations examinations, who had authorized this audit and others, was not a high enough ranking Treasury official. The exempt organizations examinations director, the court held, did not have the range of responsibility of a regional commissioner, the official who had been authorized to approve church audits before the IRS was reorganized in 1998.

That decision meant that the IRS could no longer audit churches until its procedures were revised. The IRS issued a draft of revised regulations in 2009, but has still not completed the project, according to Marcus Owens, who was director of the IRS division that oversees exempt organizations in the 1990s.

Owens, who is now a partner with Caplin & Drysdale LLP, told Church & State that he is unaware of any examinations of churches by the IRS after early 2009 and that until the regulations are revised “the IRS has no choice except to ignore all complaints about church behavior.”

At least one IRS official recently expressed a different view. In a Sept. 30 New York Times article, Sarah Hall Ingram, the commissioner of the IRS division that oversees tax-exempt organizations and government entities, said: “We have churches under audit.”

Another IRS official said the Service’s first course of action with non-profits is to educate rather than to audit.

“Education has been and remains the first goal of the IRS’s program on political activity by tax-exempt organizations,” Lois Lerner, director of the IRS Exempt Organizations Division, told The Times.

While the IRS may or may not have its hands tied, at least one member of Congress is looking into a variety of issues concerning churches, including whether or not changes should be made to church politicking rules. Senate Finance Committee Ranking Member Chuck Grassley (R-Iowa) noted in January that he contacted six ministries in 2007 because those six had received negative media coverage or attention from watchdog groups, but four of those organizations provided no information or incomplete information, according to a press release.

Grassley said in the release that he has asked the Evangelical Counsel for Financial Accountability (ECFA) to prepare a report on the financial background of all six ministries.

“The challenge is to encourage good governance and best practices and so preserve confidence in the tax-exempt sector without imposing regulations that inhibit religious freedom or are functionally ineffective,” Grassley said in a statement Jan. 6.

ECFA said in September that its commission will consider several issues beyond possible changes to church politicking rules, such as whether church accountability to the federal government should increase and whether non-profits and their leaders should be subject to greater penalties for prohibited activities.

Pulpit Freedom Sunday is always notable for the sheer volume of passionate reactions it stirs up each year regarding the role of churches in the political process. In a Sept. 29 editorial, the Los Angeles Times warned pastors to “choose [their] words wisely” on Pulpit Freedom Sunday and called on the IRS “to remind the participants… that the law will be enforced — in a measured and consistent way.”

A recent editorial in The Christian Science Monitor went a step further, saying most religious groups don’t agree with the ADF.

“Most religious groups do not endorse candidates – many of their followers would heartily protest,” The Monitor observed. “And they avoid direct partisan politics – other than taking stands on issues, which is legal under the law – in order to not become entangled with political parties and the mudslinging that comes with them.”

That Sept. 30 editorial also raised the point that “people of faith do need to be involved in public affairs – to vote, to pray, and even to individually endorse candidates,” but if a religious organization wants to be mostly left alone by the government, including freedom from taxes, “it ought not morph into something else, like a political machine, come every election.”

Supporters of the ADF beg to differ, which is like saying that the sun is warm.

Garlow told The New York Times, “There should be no government intrusion in the pulpit. The freedom of speech and the freedom of religion promised under the First Amendment means pastors have full authority to say what they want to say.”

The Rev. Gus Booth, pastor of Warroad Community Church in Warroad, Minn. and a previous participant in Pulpit Freedom Sunday, told the Grand Forks Herald that the Johnson Amendment is “vague,” that “the Constitution holds more weight than the IRS statute” and “government should not tell houses of worship what they can and cannot say.”

As for the ADF itself, Erik Stanley, ADF senior legal counsel and Pulpit Freedom Sunday mouthpiece, attempted to explain his position Sept. 30 on “The Hugh Hewitt Show.”

“Pulpit Freedom Sunday has a very specific goal: to protect a pastor’s right to speak freely from the pulpit and to not be intimidated, or censored or punished by the government when he does so,” Stanley said.

AU’s Barry Lynn was also a guest along with Stanley on Hewitt’s show, and he quickly exposed the flaws in Stanley’s argument.

“Pulpit Freedom Sunday is a bit of a scam,” Lynn said. “There is enormous pulpit freedom in this country.”

Lynn went on to note that the Johnson Amendment has already withstood a legal challenge when the IRS revoked the tax exemption of a church that took out a newspaper ad denouncing then-presidential candidate Bill Clinton in 1992.

In 2000, the District of Columbia Circuit Court of Appeals in the case of Branch Ministries v. Rossotti “saw no violation of free speech, no violation of freedom of exercise, because tax exemption is not a right to anybody,” Lynn said.

“It’s a privilege,” he added.

Ultimately it is unclear what the outcome of Pulpit Freedom Sunday will be, in part because it’s unknown how many of its participants violated the tax code and how many simply discussed political issues or candidates, which is not a violation though the ADF would have you believe otherwise. A Maryland pastor exemplified the confused state of some clergy when he attacked Gov. Martin O’Malley (D) on Pulpit Freedom Sunday, which is not a violation because O’Malley is a lame duck.

Despite what Erik Stanley and the ADF would tell you, the true purpose of Pulpit Freedom Sunday is to mobilize the Religious Right into a single voting bloc.

“I know the Religious Right would like to forge fundamentalist churches into a partisan political machine, but the law doesn’t allow it, and the American people don’t want it,” Lynn said in a Sept. 28 statement. He also cited a recent study that found 73 percent of Americans don’t want religious leaders meddling in elections.

If the Religious Right were successful in its endeavor, it would create a voting bloc that could change the face of government in America. Fortunately, organizations like AU are always at the ready to report churches that violate their tax-exempt status and to defend the wall of separation.