Monday, September 12, 2011

Pastors and Decision 2012: Here We Go Again, Only More So

The Los Angeles Times reports that the vocal involvement in the 2012 election by pastors of local churches is expected to increase well beyond that which typified the previous decade.  According to the story, many pastors who traditionally have preferred to remain largely silent in public with respect to political candidates are deciding to speak up.  The story offers the following explanation:

The passion for politics stems from a collision of historic forces, including heightened local organizing around the issues of abortion and gay marriage and a view of the country's debt as a moral crisis that violates biblical instruction. Another major factor: Both Texas Gov. Rick Perry and Bachmann, contenders for the GOP nomination, are openly appealing to evangelical Christian voters as they blast President Obama's leadership.

Perpetuating the heightened interest in political engagement by pastors, says the story, is “a growing web of well-financed organizations that offer seminars, online tools and a battery of lawyers.”  And unlike previous eras in which political activism was inspired by large-looming personalities of national religious figures, the current movement “springs from the grass roots — small and independent churches — and is fueled by emails and YouTube videos.” 

The prospect of political activism by religious leaders of course raises the list of legal issues familiar to nonprofit lawyers and scholars.  The Times reports that the usual players are staking their territory in the terms that we have come to expect:

As pastors speak out on political matters, they've drawn admonitions from groups such as Americans United for Separation of Church and State, which warns that such activism could jeopardize their churches' nonprofit status. But the religious leaders are bolstered by well-funded Christian legal organizations supporting their cause.

The most prominent — the Alliance Defense Fund, a group based in Scottsdale, Ariz., that spent $32 million in fiscal year 2010 — is challenging a 1954 tax code amendment that prohibits pastors, as leaders of tax-exempt organizations, from supporting or opposing candidates from the pulpit. The group sponsors Pulpit Freedom Sunday, in which it offers free legal representation to churches whose pastors preach about political candidates and are then audited by the Internal Revenue Service.

To be sure, snippets about the law – including the language appearing in the excerpt above – do little to inform pastors of just what political speech is and is not consistent with maintaining the federal income tax exemption of their churches.  Pastors are perfectly free to speak strictly for themselves, without using church resources and without purporting to speak for their churches, on political matters, even to the point of explicitly supporting and opposing individual candidates.  Doing so does not jeopardize the federal income tax exemption of their churches.  However, speaking in favor of (or in opposition to) political candidates does jeopardize the federal income tax exemption of a church if the speech is properly viewed as having been made by the church.  The IRS has long considered endorsements in a sermon to fall within the latter (i.e., tax-disfavored) category.  Links to videos on church websites can also present problems in many circumstances.

For additional information on the IRS’s position on permissible and impermissible political speech by pastors, see Publication 1828, Tax Guide for Churches and Religious Organizations.


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My impression is that the purpose of Pulpit Freedom Sunday is to provoke the IRS into a revocation so that the church can appeal it to the Supreme Court. The hope then is that the restriction against political speech would be declared unconstitutional by a conservative-friendly court.

I don't think there's a good rationale for that (because there's no right to be tax exempt) but I think that line of thinking is driving this phenomenon, too.

Posted by: Gerrit Betz | Sep 13, 2011 6:48:55 AM

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