Pastors for Politicians?

September 23, 2008 | | Comments Off on Pastors for Politicians?

The Alliance Defense Fund is calling for Christian pastors to begin endorsing political candidates on September 28, 2008—which has been illegal since 1954. The issue stems from the First Amendment’s Free Speech Clause potentially trumping the IRS tax code 26 U.S.C § 501(c)(3), which exempts religious organizations from income tax so long as those organizations do not endorse specific political candidates.

The ADF’s plan is to regain the right of religious organizations to both announce political candidates they support and continue their tax exempt status. The ADF is hoping the IRS will take away the tax-exempt status of those churches participating in the September 28 rally. The churches, and thus the ADF, will then have a cause of action against the IRS. The ADF hopes for a ruling by the courts that declares such tax codes against religious organizations as unconstitutional.

The most notable group against the ADF’s goals is Americans United [for Separation of Church and State]. The AU is in full support of the tax provision, and even has an online “Report a Violation” form to stop “potentially illegal electioneering by religious leaders or groups.”

Although the battle in court has not begun—if it ever will begin—inferences can be made fairly easily from free speech to the Free Exercise Clause, and the IRS tax code to the Establishment Clause as potential strategies by the ADF and AU, respectively.

The ADF seeks to encourage pastors to exercise their right to freedom of speech. This free speech will force the IRS to remove the churches’ tax-exempt status. The churches, in turn, will have a claim under the Free Exercise Clause of the First Amendment because the government will be taxing those various political churches. Almost certainly, the view the ADF will endorse is that any tax on a religious organization is a restriction on the practice of religion, which is blatantly unconstitutional. Supporting specific political candidates is part of the pastor’s duty as written in the Bible, the ADF claims, and taxing specific religious duties is against the Free Exercise Clause.

The AU and IRS will most likely respond by giving an alternative view: the tax code is simply intended to prevent political lobbyist organizations from qualifying under the tax-exempt status of 501(c)(3). The AU will probably push the notion that people should not use religion to interject their political beliefs on others. It can be argued that this restriction is really derived from the Establishment Clause of the First Amendment, as allowing religions to back specific candidates will eventually evolve into state and federally established religions.

The common question regarding conflicts between the Establishment and Free Exercise Clause arises in this case as well: which is the greater evil? Will allowing religion a greater voice in political elections be better, or worse than, restricting the freedom to practice religion?

The IRS Tax Code, when implemented in 1954, clearly had large effects on religious organizations at the time. Prior to 1954, religious leaders routinely endorsed political candidates and often pressed their followers to take up the same endorsement. Pastors’ fears of losing their exempt status obviously played a role in how they conducted sermons.

Before the tax code, religion was not thought to be too intrusive on government affairs. In other words, there was not an Establishment Clause issue, which weakens the AU’s concern about Establishment Clause conflicts. However, that is not to say voiding the tax code would not cause an Establishment Clause problem today. Allowing pastors to endorse political candidates may be seen as in conflict with the Establishment Clause now. The endorsements may also have a greater effect on elections today.

The ADF has a strong case for two reasons: First, the ADF’s position is also tied to free speech concerns; this is not just a Free Exercise Clause issue. This twist may give the extra “boost” in Constitutional authority necessary to push the Free Exercise Clause over the Establishment Clause in this particular situation. Second, the history of the tax code tends to speak to the unrealistic concerns of Establishment Clause conflicts.

Although the tax code may not eventually be ruled unconstitutional, the case may potentially be heard by the Supreme Court—which should bode well for further clarification on First Amendment conflicts.

Photo courtesy of Flickr user Vaguely Artistic.

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