Nonprofit Law Prof Blog

More on Churches and Politics

Interesting article on the ABC News web site about certain church pastors openly defying the 501(c)(3) prohibition on intervention in a political campaign. Though I don't necessarily agree with the political activity ban in general, I find it exasperating that certain pastors apparently believe that tax-exemption is a natural (I'd say "God-given," but perhaps that's pushing the pun a bit far) right and that they should be immune from government regulation on this issue. If churches want to be active in politics, there's an easy way for them to do that: give up tax exemption under 501(c)(3) and the accompanying right to receive tax-deductible contributions. Ah, but the "let's eat the cake and have it, too" syndrome appears alive and well in certain churches (not all, mind you: there are many folks in the religious world who shun political participation as antithetical to their religious mission).

Looks like it's going to be a long five months for the IRS . . .

JDC

Virginia Mosque Reaches Out to Immigrant Community

Today's Washington Post reports on an amazing transformation taking place in Falls Church, VA.  According to the Post article,

[F]or years the Dar al Hijrah mosque was an isolated, slightly mysterious presence in Falls Church -- a stark stone building hidden behind a row of trees, rarely visited by non-Muslims in the multi-ethnic Culmore neighborhood, and known mostly for traffic jams on Leesburg Pike as worshipers arrived for Friday prayers.

In fact, in 2001 the mosque came under official suspicion amid reports that a man linked to the terror attacks of September 11 had visited there. 

Today, things are different:

[T]he mosque bustles with visitors chattering in Spanish and Vietnamese as well as Persian and Urdu. Immigrants from a dozen countries gather there each Thursday, many with toddlers and baby strollers, to pick up donated chicken, bread, fruit and vegetables.

On weekends, the doors are thrown open for community blood drives or mental health fairs. At night, mosque officials often attend meetings at nearby churches, synagogues or social agencies, including a monthly brainstorming session called Culmore Partners.

Abdulkareem Jama, a network engineer from Somalia who serves as president of the mosque's board, is pleased with the transformation.  "The average person here has had no interaction with Islam. They may even think we are the enemy, especially after September 11th," he says.  "The more we open up and interact, the more we demystify things and seem normal to each other."

The Washington Post article sees an even deeper demystifying of the mosque -- and Islam in general -- and an acceptance of Muslims as part of the Falls Church community:

The mosque's coming out also reflects the growing cooperation between area Muslim institutions and the largely non-Muslim immigrant communities that surround them. In Culmore, the trend has brought many groups together to help immigrants who struggle with poverty, discrimination and legal problems.

Something good is happening in Falls Church, VA!

To read the entire article, see "Va. Mosque Reaches Out, Joining Immigrant Fabric" in the June 13, 2008, Washington Post.

VEJ

Texas Church Wins Seven-Year Land Use Struggle

Yesterday, Judge Royal Furgeson, a federal judge in San Antonio, Texas, issued a consent decree that ended seven years of litigation between Castle Hills First Baptist Church and the City of Castle Hills, Texas.  The consent decree essentially handed victory to the church.

According to a release issued by the Becket Fund for Religious Liberty, in the late 1990s, Castle Hills, a  San Antonio suburb,

repeatedly denied the church permission to expand its church and school buildings, as well as the use of its adjacent property it owned for parking.  The city also went on a ... rampage against the church, calling the church a “cancer, feeding on homes in much the same way as a cancerous tumor feeds on healthy cells,” and enacting parking regulations that forbade parking near the church — but only on Sunday mornings.

Delighted with the outcome, Eric Rassbach, National Litigation Director at the Becket Fund reacted as follows: “Good things come to those who wait, but it sure would have been better for all concerned if the city had realized it was wrong to discriminate against the church in the first place.  We’re pleased that our client was persistent enough to finally receive justice.”

Castle Hills First Baptist filed suit against the city in 2001.  After seven years of litigation, yesterday's consent decree allows the church to add on the fourth floor it had requested permission to build and to use its adjacent property for overflow parking and other purposes. 

To read consent decree, click here.

VEJ

New York Times: Evangelicals Wary of McCain

As this year's election campaign shifts into higher gear, today's New York Times (McCain Extends His Outreach, but Evangelicals Are Still Wary) reports that one of Senator John McCain’s biggest challenges in the current presidential campaign is this: a continued wariness toward him among evangelicals and other Christian conservatives, a critical voting bloc for Republicans that could stay home in the fall or at least be decidedly unenthusiastic in their efforts to get out the vote.

The Times article compares the relationship between President George Bush and the evangelical community with that of the community and Senator McCain, noting that in 2004, President Bush's openness about his personal faith and stances on social issues earned him a following among evangelicals, who represented about a quarter of the electorate that year.  Indeed, exit polls found that 78 percent of white “born again” or evangelical Protestants voted for President Bush. 

On the other hand, article states, Senator McCain’s relationship with evangelicals has long been troubled.  For example, in 2000, when he was running against President Bush for the Republican nomination, the Arizona Senator castigated evangelical ministers Pat Robertson and Jerry Falwell as “agents of intolerance.”  The article continues:

In a sign of the lingering distrust, Mr. McCain finished last out of nine Republican candidates in a straw poll last year at the Values Voter Summit in Washington, a gathering for socially conservative activists.

James C. Dobson, the influential founder of the evangelical group Focus on the Family, released a statement in February, when Mr. McCain was on the verge of securing the Republican nomination, affirming that he would not vote for Mr. McCain and would instead stay home if he became the nominee. Dr. Dobson later softened his stance and said he would vote but has remained critical of Mr. McCain.

The wariness Senator McCain faces among evangelicals is summed up in the words of Tony Perkins, president of the Family Research Council:

“For John McCain to be competitive, he has to connect with the base to the point that they’re intense enough that they’re contagious.  Right now they’re not even coughing.”

Notwithstanding the wariness among evangelicals, the Times reports that a small group of McCain staff members and surrogates have begun stepping up -- largely behind the scenes -- his outreach to evangelicals and other social conservatives.  Additionally, about a dozen people, including staffers and socially conservative leaders who are advising the campaign, have reportedly begun a weekly conference call to plot strategy on reaching the evangelical/social conservative voting bloc for Senator McCain.

VEJ

Pope Benedict Speaks Out on Global Hunger

At last week's "High-Level Conference on World Food Security: the Challenges of Climate Change and Bio-energy" held at FAO headquarters in Rome, the Vatican's Secretary of State, Cardinal Tarcisio Bertone, S.D.B., read out a message from Pope Benedict XVI in which the head of the Roman Catholic Church stated that

...hunger and malnutrition are unacceptable in a world which has, in fact, levels of production, resources and knowledge sufficient to put an end to such dramas and their consequences.  The great challenge of today is to 'globalise', not just economic and commercial interests, but also the call for solidarity, while respecting and taking advantage of the contribution of all components of society.

The Pope went on to call on the 50 heads of State and government officials attending the conference to "collaborate in an increasingly transparent way with ... organisations committed to closing the growing divide between rich and poor" and to "continue with the structural reforms which, at the national level, are indispensable in order to face the problems of underdevelopment, of which hunger and malnutrition are direct consequences."

The Pope also stated that

Poverty and malnutrition are not a simple fatality, provoked by adverse environmental situations or by disastrous natural calamities, [and that] purely technical and economic considerations must not prevail over the duties of justice towards people suffering from hunger.

Referring to the current problem of rising prices of agricultural products, the Pope called for the drawing-up of "new strategies to fight against poverty and to promote rural development, ... through structural reform processes which enable the challenges posed by security and by climate change to be faced".

According to the Pope, modern technologies are not enough to meet shortfalls in food.  Rather, he stated, there is a global need for "political action which, inspired by those principles of natural law written in man's heart, protects the dignity of the individual. ... Only by protecting the person, then, is it possible to combat the main cause of hunger."

The Pope concluded his message by calling on the delegations gathered for the conference "to take on new commitments and set themselves to pursue them with great determination."

VEJ

Religion and Politics

In today's St Louis Jewish Light, Rabbi Robert Cohn describes a workshop led by Rabbi David Saperstein:  "Social Justice: The Use and Abuse of Religion in the 2008 Elections."  At the workshop Rabbi Saperstein discussed what he calls the "ten commandments of politics."  The article includes examples from different religious backgrounds of how several of the commandments should be applied.  The article provides the following list of seven commandments:

* Thou shalt not offer an explanation to the electorate about how your religious beliefs shape or alter your views on the issues.

* (Candidates) shalt discuss their views on political and legal issues that directly affect religion.

* (Candidates) shalt feel free to use religious language to explain how their beliefs or practices would affect their ability to perform as President or in another office.

* (Candidates) shalt feel free to discuss the role religion plays in shaping his or her values.

* (Congregations) shalt NOT seek to organize partisan support in houses of worship.

* (Religious organizations or clergy) shalt not use authority or threats of religious discipline to coerce decisions or actions by American citizens.

* (Congregations) shalt not endorse or oppose candidates.

Thanks to Ellen Aprill of Loyola Los Angeles for sending this link.

sng

IRS Clears UCC of Tax Exempt Law Violation Charges

On May 21, 2008, the United Church of Christ announced on its website that the IRS has clear it of charges that it violated U.S. tax laws "when U.S. Sen. Barack Obama addressed the denomination's 50th anniversary General Synod in Hartford, Conn., in June 2007."  Here is an excerpt from the announcement:

The IRS determination outlined several steps taken by the UCC that indicated compliance with the law. The letter said the UCC's invitation to Obama came "well before he announced his candidacy and that [he] was invited to speak … in a non-candidate capacity, on how his personal faith intersected with his public life."

"You further established that the United Church of Christ had verbally communicated to those in attendance that Senator Obama was there as a member of the church and not as a candidate for office, that the audience should not attempt to engage in any political activities, and that the church's legal counsel had advised Senator Obama's campaign on the ground rules for the speech," the IRS determined.

To see the full announcement, see "Concluding its UCC inquiry, IRS offers complete vindication" on the UCC website.  For a copy of the IRS determination letter, go here.

Hat Tip to our sister blog TaxProf Blog for this lead.

DAB

Blaine Amendments Under Attack: Should State Tax Dollars Be Used to Fund Religious Education?

As we just blogged, in addition to the tax swap proposal, Florida voters will consider in November a constitutional amendment that will eliminate its so-called "Blaine Amendment" law.  According to an article in the May 15, 2008, issue of the Washington Post, 37 states across the country enacted Blaine Amendments about one hundred years ago when the "Protestant majority" wanted "to block government support for catholic schools."  It appears that the stakes in Florida are huge considering the potential loss of funding for a myriad of social service activities that many consider critical.  here is an excerpt from the article:

Patricia Levesque, the commission member who pushed to add the measure, said she acted because a 2004 appeals court decision cited the Blaine Amendment while striking down then-Gov. Jeb Bush's effort to allow students in failing schools to enroll in parochial and other private schools at public expense.

Levesque said the 2004 decision, as well as a lawsuit recently filed against state prison chaplains, could endanger millions of dollars in state contracts that go to faith-based organizations running substance abuse programs, HIV education services, foster care programs and pre-kindergarten programs.

* * *

Opponents of the measure say that Levesque, Jeb Bush's former education policy chief and the current head of Bush's independent education organization, Foundation for Florida's Future, is using alarmist language as a way to revive his voucher program.

The warnings are a "scare tactic" said Mark Pudlow, spokesman for the Florida Education Association. "It's Governor Bush's attempt to get vouchers for all." A coalition of education organizations has combined with Americans United for Separation of Church and State and the Anti-Defamation League to contest the measure.

For the entire article, "Fla. to Consider Key Church-State Question: Funds Ban for Religious Groups at Issue," in the May 15, 2008, issue of the Washington Post.

DAB

Politics from the Pulpit

Suzanne Sataline of the Wall Street Journal online reports today that a conservative legal-advocacy group, Alliance Defense Fund, a Scottsdale, Arizona nonprofit, is enlisting ministers to use their pulpits to preach about election candidates this September, defying legal prohibitions that bar churches from engaging in politics.

According to the report, the group is hoping that at least one sermon will prompt the IRS to investigate, sparking a court battle that could get the tax provision declared unconstitutional. The action marks the latest attempt by a conservative organization to help clergy harness their congregations to sway elections. The protest is scheduled for Sunday, Sept. 28, a little more than a month before the general election, in a year when religious concerns and preachers have been a regular part of the political debate.

The report notes that the section of the tax code barring nonprofits from intervening in political campaigns has long frustrated clergy. Many ministers consider the provision an inappropriate government intrusion, blocking the duty of clergy to advise congregants.

In recent years, attempts by members of Congress to change the law have failed. Rob Boston, a spokesman for Americans United for Separation of Church and State, a nonprofit that has filed more than a dozen complaints in the past year with the IRS accusing nonprofits of tax code violations, takes the position that tax exemption is a benefit and comes with conditions. He is reported as saying that any pastor who feels gagged  should forgo the tax exemption and say what he or she wants.

In 1954, Congress made it illegal for nonprofits, including churches, to endorse or publicly oppose political candidates or to intervene in candidates' elections, although they are free to take sides on issues. Only one church has challenged this, unsuccessfully. The U.S. Court of Appeals in the District of Columbia ruled in 2000that the IRS didn't violate constitutional rights when it revoked the tax-exempt status of Branch Ministries of Binghamton, N.Y., which had bought newspaper ads opposing Bill Clinton's candidacy.

Apparently, some legal scholars are hoping for a new test case. Lloyd Hitoshi Mayer, a law professor at the University of Notre Dame, is reported as saying that a church might make a successful claim that the federal government is burdening the free exercise of religion and cannot do so without a compelling state interest.

ss

Bush Building Ties With Catholics

Today's Washington Post reports that President Bush and first lady Laura Bush will this afternoon greet Pope Benedict XVI, leader of the Roman Catholic Church, after the latter's plane lands at Andrews Airforce Base.  This will be the first time in his seven years in office that the President will leave the White House to receive a visiting foreign dignitary.  Tomorrow, President Bush will host Benedict for a private 45-minute meeting.  The meeting will be preceded by an elaborate official arrival ceremony featuring soprano Kathleen Battle singing "The Battle Hymn of the Republic." About 9,000 invited guests are expected to attend this ceremony.

The President's warm welcome for the Pope results from his goal to build strong ties with Roman Catholics.  According to the Washington Post report, in an interview last week with the Eternal Word Television Network, a Catholic news outlet, President Bush opined that Pope Benedict is a significant religious and moral leader. "I [also] subscribe to his notion that . . . there's right and wrong in life, that moral relativism has a danger of undermining the capacity to have more hopeful and free societies," Bush said. "I want to honor his convictions."

The Washington Post article continues:

Building strong ties with Catholics in general -- and Benedict and his predecessor, Pope John Paul II, in particular -- has been a major element of the president's agenda since the 2000 political campaign. Former aides say his "compassionate conservative" agenda and emphasis on a "culture of life" have been shaped by the teachings of the church, while his political advisers have seen an opportunity to wrest Catholic voters from the Democratic Party.

VEJ

 

Scalia: Wall of Separation Between Church and State Not Inviolable

According to a report published in last Friday's Daily Progress (Charlottesville, VA), Supreme Court Justice Antonin Scalia on Thursday told an audience at the University of Virginia School of Law that the wall separating church and state is not inviolable. 

According to Justice Scalia, the judicial system has too often gone overboard in its interpretation of the First Amendment’s establishment clause (which forbids any “law respecting an Establishment of Religion”).  Justice Scalia told his audience that the courts' "guiding light" in many religious freedom cases is the neutrality principle: government cannot favor one religion over another and also cannot favor a religious group over a secular group or vice versa.  Accordingly, said the Supreme Court Justice, court rulings that seek to totally separate religion and government run counter to the Constitution’s meaning.
“If you want to enact a statute that says the president can never say ‘God bless America,’ then I have no problem with that,” he said. “Just don’t tell me that the Constitution prohibits it.”

VEJ

Grassley's Press Release Re: Church Inquiries

MEMORANDUM

To: Reporters and Editors
Fr: Jill Gerber for Sen. Grassley, 202/224-6522
Re: Ministry responses
Da: Monday, March 31, 2008

On March 11, Sen. Chuck Grassley, ranking member of the Committee on Finance, and Sen. Max Baucus, chairman, wrote follow-up letters to four ministries that had not provided information in response to Grassley's letter of Nov. 5, 2007, inquiring about various issues related to tax-exempt policy. The senators encouraged the ministries to cooperate and asked for a response by today. The latest accounting is:

On Friday, March 28, the Benny Hinn/World Healing Center Church delivered a second submission of information on cd and in hard copy form. This was the ministry's second submission in a "rolling production" of documents.

Also on Friday, March 28, Senator Grassley's tax staff spoke with a lawyer for Randy and Paula White, who indicated that the Whites' first batch of answers has been FedExed to Senator Grassley. The material was scheduled for delivery today but may take some time to get through Senate mail security screening.

The Eddie Long ministry said last week that it would be providing information in response to the March 11 letter on April 15. Senator Grassley plans to continue dialogue with the Creflo Dollar and Kenneth Copeland ministries. The committee is beginning its review of the material that has been received, as well. Senator Grassley made the following comment on the status:

"It's good to see the majority of the ministries offering information. They receive generous tax breaks as non-profit organizations. In general, the federal Treasury forgoes billions of tax dollars a year to tax-exempt groups. The ministries' sharing of material with the Senate committee in charge of tax policy shows an interest in accountability for their special tax status."

dkj

Lieberman Defends Obama Speech, Requests Explanation of IRS Investigation

Here is the full text of Senator Joe Lieberman's letter to the IRS regarding IRS' investigation of Obama's June speech before the United Church of Christ.

March 14, 2008

Dear Acting Commissioner Stiff:

On February 20, 2007, the Internal Revenue Service (the "Service") sent the United Church of Christ (the "UCC") national office a letter, stating that, based on Sen. Barack Obama's June 23, 2007, speech at the UCC's 50th General Synod in Hartford, Connecticut, the Service has formed a "reasonable belief" that the UCC violated the Internal Revenue Code's ban on partisan electioneering by churches. I write to express my concerns about that letter and to ask the Service to (1) explain the specific process by which it establishes the statutorily required "reasonable belief" of improper activity and (2) clarify its public guidance on the permissibility of candidate appearances at churches.

Under Section 7611 of the Internal Revenue Code, the Service may initiate a church tax inquiry only if "an appropriate high-level Treasury official reasonably believes (on the basis of facts and circumstances recorded in writing)" that a church may not qualify for tax exemption or may be engaged in taxable activities. As I understand it, before sending the February 20 letter, the Service at no point contacted the UCC to seek any information concerning Sen. Obama's speech. But as has been widely reported in the Connecticut media, the UCC took significant precautions to ensure that Senator Obama's appearance at the Synod satisfied all legal requirements. For instance, UCC leaders told Synod attendees, on several occasions and in advance of Senator Obama's speech, that the UCC had invited him before he launched a presidential campaign, and also that Senator Obama was invited to speak on a topic of interest, rather than his candidacy. UCC leaders also directed attendees to refrain from bringing signs and campaign paraphernalia into the Synod facility. Based on those precautions, I would expect that had the Service contacted the UCC before sending its letter, the Service's concerns would have been addressed. This absence of communication with the UCC is what spurs my request that you explain, in detail, the Service's procedure for satisfying its statutory obligation of forming a "reasonable belief" that a church has engaged in improper political activity.

Moreover, I find the Service's inquiry especially troubling because of the Service's inadequate guidance in this area. Publication FS-2006-17, which the Service issued in February, 2006, and posts on its website, states that candidates may be invited to speak at churches in their individual capacity, and that depending on the circumstances, such invitations can be granted "without jeopardizing its tax-exempt status." A subsection of that publication elaborates that:

Candidates may . . . appear or speak at organization events in a non-candidate capacity. For instance, a political candidate may be a public figure who is invited to speak because he or she: (a) currently holds, or formerly held, public office; (b) is considered an expert in a non political field; or (c) is celebrity or has led a distinguished military, legal, or public service career. A candidate may choose to attend an event that is open to the public, such as a lecture, concert or worship service. The candidate's presence at an organization-sponsored event does not, by itself, cause the organization to be engaged in political campaign intervention.

This guidance implies that an individual who is well-known to be a candidate can become a "non-candidate" for the purpose of a church appearance. But the guidance does not explain how such a candidate can be transformed into a non-candidate for purposes of the appearance. Therefore, I ask you explain to me, and to the public, how this transformation occurs. In the context of the UCC Synod, it appears that inviting a well-known member of a denomination to speak satisfies standards (a) and (c). A logical inference to the issuance of your letter, therefore, is that if a speaker, invited in a non-candidate capacity, slips into "candidate" mode, then the Service will still hold the sponsoring church liable -- even if the church took significant precautions to prevent political discourse. I request that you confirm whether this inference accurately characterizes the Service's position.

Throughout my career in the Senate, I have supported the strong and fair enforcement of our nation's tax laws, including laws applicable to religious institutions. But I am concerned about the chilling effect on legitimate activity by religious organizations that results from initiating a church tax inquiry without first satisfying the reasonableness standard, and I am further concerned by the lack of clear guidance in this area.

I look forward to your prompt and thorough reply.

                                  Sincerely yours,

                                  Joseph I. Lieberman
                                  United States Senator

For prior stories on this topic see here, here, and here. 

dkj

Senate Finance Committee Sends Follow-Up Letter to Mega-Churches

On March 11, 2008, the Senate Finance Committee sent out follow-up letters to four megachurches.  The letters once again request financial data.  Various news reports suggest that the second batch of letters is an indication that the Finance Committee may soon rachet up the pressure by issuing subpoenas.  For previous coverage of this issue see this report.  One observer, quoted in the news reported linked to above, suggested that Senate Finance Committee is wasting its time and that donors should take more responsibility for the lifestyles of a visible minority of church leaders: 

Bill Keller, founder of liveprayer.com, an interactive Christian Web site, said . . . it's incumbent upon all nonprofit agencies – religious ones as well – to be transparent about their finances, and for donors to take more responsibility. "There's only a small fraction of ministers out there who own private jets and drive Bentleys," he said. "But this investigation is creating a public mistrust of all of us." He conceded there is "absolutely abuse of funds" going on among some ministries, but it's an IRS issue, and not one that Grassley can do anything about unless he intends to change the law. "If people want to buy into this Lotto mentality in hopes of hitting the big religious jackpot, and giving blindly to someone who is a self-appointed messiah, then have at it," he said. "You can't legislate stupidity."

dkj

Aprill and Tobin Weigh In on Obama Speech in WSJ Article

Two prominent nonprofit tax prof experts Ellen Aprill and Donald Tobin, weighed in today on the Barack Obama's speech before the United Church of Christ last June.  A story in today's Wall Street Journal states:

Ellen Aprill, an associate dean at Loyola Law School in Los Angeles and a former adviser to the Treasury Department on matters including nonprofit tax law, says she believes those sermons are "clearly a violation. They're naming names.'' Donald Tobin, an associate dean at Ohio State University law school, who formerly worked for the Justice Department on nonprofit tax matters, adds that nonprofits cannot make endorsements or engage in a "pattern and practice that is designed to support one candidate over another." After being read sections of the Trinity sermons by the Journal, he said, "There does seem to be a pattern of attempting to tip the scales in a way for Barack Obama. And churches shouldn't be doing that."

The story seems clear in indicating that it was the separate sermons of a United Church of Christ Pastor at a different church in Illinois -- not Obama's talk at the UCC 50th Anniversary Synod in Connecticut  -- that may have constituted unlawful campaign intervention.  It also makes clear that nonprofits can invite candidates to speak so long as they do not discriminate and, through their discrimination, engage in campaign intervention.  In a press release, Americans United for Separation of Church and State, take credit for the IRS's more aggressive policicng of the prohibition.  I still say this is much ado about nothing and will give better than even money that this too will go the way of dial-up internet.  The watchdog group notes, however, that  “the IRS has indicated,” Lynn continued, “that public officials can appear at religious gatherings to address issues even if they are candidates. However, the sponsoring group may not use the occasion to officially endorse or otherwise support the candidate’s campaign.”   Perhaps Hillary and John should request equal time.

Hat tip to loyal reader "Drew" for the link to the WSJ article.

dkj

NPR Report on Obama Speech to United Church of Christ: Just in Case You Haven't Heard Enough!

In case you have not already read or seen enough about the faux controversy regarding Barack Obama's speech last June at the United Church of Christs 50th Anniversary General Synod, here is the NPR report on the topic, including excerpts from the speech and an interview with Church officials.  So now I have finally done it.  I have written a story critical of the media, of which I have become a part, for continuing to report on a non-story, of which my own reporting is part and parcel.  Yes, I am now a real reporter!  Ahh, but there is one redeeming quality to this report.  A spokesperson for Americans United for Separation of Church and State -- the virtual pit bulldogs growling about houses of worship and campaign intervention -- even admits in the NPR report that the story is a non-story.  In summary, this report is about a story that is a non-story!  Have a great weekend.

dkj

Kentucky Judge Rules Appropriation to Religious University for Pharmacy Building Violates State Constitution

In PennyBacker v. Beshear, a Kentucky Circuit Court Judge ruled on March 6, 2008 that the Kentucky legislature's appropriation of $10 million to the University of the Cumberlands violated the state's ban on direct support of religous organizations.  The University of the Cumberlands is a private university affiliated with the Kentucky Baptist Convention, but the appropriation was for the construction of a pharmacy building.  Simliar to the arguments in support of the Faith and Community Based Initiative, the defendants argued (according to aMarch 7, 2009 Inside Higher Education Article) "that as long as Cumberlands pledged to keep the pharmacy school secular, there were no church-state implications, and that Kentucky legislators needed the flexibility to use private religious colleges, as well as public ones, to advance state [secular] goals."  In rejecting that argument, the Kentucky Court stated, "there is no question that the appropriation of $10 million tax dollars to the University to construct a pharmacy building is a direct payment to a non-public religious school for educational purposes. This type of direct expenditure is not permitted by the Constitution of Kentucky." 

I can't tell from the opinion whether the judge rejected the legal argument -- that appropriations to religious [nonprofit] groups are permissable for secular purposes -- or whether he concluded as a matter of fact in this particular case that the government appropriation violated First Amendment type restrictions against church-state entanglement.  The former interpretation seems more likely and would, if applied on a national level, call into question direct grants to religous nonprofits for secular purposes.  A comment posted to the Inside Higher Education website captures the church-state concerns relating to direct grants to religious organizations:  "do you really think this university could keep the pharmacy school secular? I am sure they would indoctrinate students into not dispensing birth control or the morning after pill because that is what God told them to do."  On the other hand, sentiments like those expressed in the Amherst Student Newspaper suggest that it is possible and efficient to provide government funding to religous organizations in support of their secular activities.

Another interesting point about this case is that there is usually not sufficient opposition to whatever social service the religious organization is providing to force a judicial confrontation.  But in this case, according to the Inside Higher Education Article, the Kentucky Fairness Alliance, a nonprofit that argues against discrimination based on sexual preference, brought suit only after the University expelled an openly gay student. 

dkj

Another Day Another Church Political Activity Complaint

The Fort Worth Star-Telegram reports that Americans United for Separation of Church and State has filed a complaint with the IRS regarding Pastor Steve Riggle's letter endorsing Shelley Sekula Gibbs to fill Tom DeLay's former congressional seat.  Pastor Riggle is the Senior Pastor of Grace Community Church in Houston, which has 12,000 members.  Dr. Sekula Gibbs is in an April runoff to determine the Republican Party nominee for the congressional seat. 

Pastor Riggle responded to the complaint by stating that the letter did not violate any law as he wrote it on his personal stationary, he did not discuss his endorsement in the church, and the church did not distribute the letter.  The letter states it was paid for and authorized by the Shelley Sekula Gibbs for Congress Campaign Committee.  The only apparent connection to the church is that the letter identified Pastor Riggle as the Senior Pastor of Grace Community Church.  Americans United stated in its press release regarding the complaint that it is exactly this aspect of the letter that it found problemmatic, noting that the letter twice identifies Pastor Riggle in this fashion without any indication that he is speaking solely as a private citizen.

lhm

UCC Explains Why Obama Speech Was Not Campaign Intervention

In an March 2 op-ed piece in the Hartford Courant, the United Church of Christ explained why Obama's June speech to the 50th anniversary UCC General Synod did not constitute campaign intervention:

What do Sen. Barack Obama, commentator Bill Moyers, actress Lynn Redgrave, Nobel Prize-winning scientist Charles Townes and novelist Marilynne Robinson have in common? All are members of the United Church of Christ, and all spoke to the UCC General Synod last June in Hartford. Now the presence of one of those speakers, Sen. Obama, has resulted in the Internal Revenue Service investigating the tax-exempt status of the denomination.

So what is going on here? As a condition for tax exemption, the IRS expects nonprofits to abstain from endorsing candidates for office. This we accept, and this we did. The United Church of Christ bent over backward to ensure that we did not violate the regulations.

Our purpose in inviting Sen. Obama in the spring of 2006 — long before he was a candidate for the presidency — was to ask him to address the connection between his Christian faith and his public service, to speak to us of the challenges for people of faith in the public square today. And he did so with eloquence. As a prominent member of our church, his was a natural invitation, just as the others were.

The editorial goes on to explain what the Church did to avoid campaign intervention and why IRS investigations of houses of worship can have "chilling effects on the engagement of communities of faith with public officials."  Here is a bold prediction:  The IRS will wag its finger and send a "don't you dare do that again" letter to the UCC and all will be forgotten.  Though the Service will not admit it, the purpose of any such "investigation" is precisely to make houses of worship "chill out."  The intended effect is achieved merely by the publicity, further enforcement action is always unnecessary.  We do this dance every four years!

Though I disagree with the writer's sentiment, here is the full text of today's letter to the editor in response to UCC's op-ed:

The Rev. Davida Foy Crabtree laments that the Internal Revenue Service might be intruding on her free exercise of religion [Commentary, March 2, "IRS Investigation: A Test Of Church's Faith?"].

Perhaps the Rev. Crabtree would be willing to abandon her church's tax-exempt status in order to freely invite selected political candidates to speak before her congregation. She certainly has the freedom to do so. All she need do is pay taxes on the money her church collects. Surely if the Rev. Crabtree feels strongly about presenting political candidates to her flock, she would be willing to pay her share of taxes like any other for-profit organization that would support a candidacy.

However, should the Rev. Crabtree choose to enjoy the monetary privileges of her church's tax-exempt status, her church, like any other nonprofit organization, must be willing to accept the provisions that come with the tax exemption, including that of not supporting the campaigns of political candidates.  The choice is hers, and she is free to choose.

dkj

Jack Siegel's Take on IRS Investigation of Obama Church Speech

Noted nonprofit governance expert Jack Siegel has written an objective and interesting analysis of the concerns relating to a recent speech given by Barack Obama at the United Church of Christ's 50^th anniversary General Synod in Hartford Connecticut on June 23, 2007.  The analysis notes the efforts made by the Church prior to Obama's speech in an effort to avoid campaign intervention.  Seigel concludes, nevertheless, that Obama crossed the line at certain points.  Here is the conclusion:

We do think Congress must step in and write a prohibition on political campaign activity that addresses the reality of how churches and other Section 501(c)(3) organizations interact with political candidates. In addressing this problem, we would like to see Congress take an approach akin to that taken by the intermediate sanctions in Section 4958. That is, rather than penalizing the innocent entity or the entity that can't control a speaker once the speech has begun, the sanctions should focus on the speaker's conduct, penalizing the speaker.  Many will argue that this raises First Amendment issues. We recognize that possibility, but are not convinced. Obviously, the speaker has a right to speak, but the speech in question is by invitation. Consequently, this is not silencing the speaker in terms of access to the public square.

I think Siegel hits the nail on the head when he states that Congress should address the reality of how churches interact with political candidates.  That reality, it seems to me though, inevitably leads to the conclusion that prohibiting stump speeches, even from the pulpit, is a futile waste of time.  I'm not even  sure its good policy.

dkj

The Diocese of Little Rock Asks Parishioners to Stop Donations to Komen Cancer Charity

USA TODAY reports that Catholics in the Diocese of Little Rock urged to stop making donations to the Susan G. Komen for the Cure Foundation, a 501(c)(3) charity, because the Foundation gave money to Planned Parenthood to hold breast exams and offer education to women in its clinics.  In a statement, the Diocese states that "[d]onors cannot control how an organization designates its funds."  As a consequence, "money donated to a specific service . . . directly frees up funds to support other areas of an organization's agenda."  The Diocese expressed concern that the freed up money would be used to support the abortions and contraceptive services Planned Parenthood offers to its clients.  A representative of the Komen Foundation said that less than one percent of the money raised by the Foundation went to Planned Parenthood, and the spokesperson further said, "I think it's just really unfortunate undue attention is being shed on organizations that are providing vital services in those communities."  See USA TODAY for full article.

amt

L.A. Times Reports that Obama Church Speech Probed

Today, the Los Angeles Times reports that "[t]he IRS is investigating the United Church of Christ over a speech Sen[ator] Barack Obama gave at its national meeting last year after he became a candidate for president."  The article further reports that Senator Obama is a member of the 1.2 million-member protestant group through his Chicago congregation, Trinity United Church of Christ.

The article also reports that the IRS said in its letter dated February 20 that it had concerns about articles posted on the church's website stating Senator Obama spoke to nearly 10,000 people at the event and that campaign workers staffed campaign tables outside of the event.

Last, the article points out that 501(c)(3) nonprofits are prohibited from endorsing candidates and providing support to campaigns.  Nevertheless, the IRS letter states that, while nonprofits are allowed to invite political candidates to address them, "if a candidate is invited in his or her capacity as a candidate, then other candidates running for the same office must also be invited to speak, and there should be no indication of support for, or opposition to, any candidate by the organization."  At the end of the article, a representative for Senator Obama states that he spoke in his personal capacity about his "personal spiritual journey" and that the "speech was not a campaign event."

See Article for complete story.

amt

Senator Grassley Speaks Out Again on Church Ministries

The New York Times reports today that Senator Grassley, the senior republican on the Senate Finance Committee, and one known to speak out frequently on nonprofit compliance, recently spoke at Faith Baptist Bible College near Des Moines, Iowa to about 500 students.  He again targeted some televangelists for what, in his opinion, are lavish lifestyles, including high pay, perks and private jets.  He told the students that he sent letters to the ministries asking questions, and that he was awaiting their responses.  Some ministries were interviewed for the New York Times story and counter that Grassley's questions and tone are a violation of their constitutional rights.  The article quotes "Gary McCaleb, senior counsel at the Alliance Defense Fund, a religious liberty legal group," as saying, "From the get-go he's acted more like an investigator and not at all like a senator on this and that's unnerving."  Mr. McCaleb is further quoted as saying that, "[Senator Grassley] has the right to get facts, but this has looked, felt and smelled like an enforcement action."  See New York Times Article for full story.

amt

Board of Directors of Catholic Hospital in London Forced to Resign in Ethics Dispute

The head of the Roman Catholic Church in England and Wales, Cardinal Comac Murphy-O’Connor, recently ordered the resignation of all members of the board of directors of the St. John & St. Elizabeth Hospital in London, England.  The rift of the board of directors stemmed from an ethical dispute over the role Catholic beliefs should play in the dispensing of patient care at the Hospital.  According to the article, tension arose between the board and the Catholic church when the cardinal imposed a new ethics code on the hospital.  The cardinal urged the adoption of the new ethics code to ban perceived non-Catholic practices, such as, prescribing the morning after pill, referring patients for abortions, and performing sex-change operations. The cardinal, in 2005, wrote the then chairman of the board, Lord Bridgman, and said the following,

There must be clarity that the hospital, being a Catholic hospital with a distinct vision of what is truly in the interests of human persons, cannot offer its patients, non-Catholic or Catholic, the whole range of services routinely accepted by many in modern secular society as being in a patient’s best interest.

See Article for more information.

amt

Institute of Peace Releases Special Report on Religion in World Affairs

The United States Institute on Peace has released Special Report 201, Religion in World Affairs -- Its Role in Conflict and Peace.  In the report, the Institute describes itself as "an independent, nonpartisan institution established and funded by the United States Congress [aiming] to help prevent and resolve violent conflicts, promote post-conflict peacebuilding, and increase conflict-management tools, capacity, and intellectual capital worldwide."  The Institute maintains that it seeks to achieve these goals "by empowering others with knowledge, skills, and resources, as well as by its direct involvement in conflict zones around the globe."

The Special Report, prepared by the Institute's Religion and Peacemaking program, begins with the following summary of its contents:

• No major religion has been exempt from complicity in violent conflict. Yet we need to beware of an almost universal propensity to oversimplify the role that religion plays in international affairs. Religion is not usually the sole or even primary cause of conflict.
• With so much emphasis on religion as a source of conflict, the role of religion as a force in peacemaking is usually overlooked.
• Religious affiliation and conviction often motivates religious communities to advocate particular peace-related government policies. Religious communities also directly oppose repression and promote peace and reconciliation.
• Religious leaders and institutions can mediate in conflict situations, serve as a communication link between opposing sides, and provide training in peacemaking methodologies. This form of religious peacemaking garners less public attention but is growing in importance.
• Interfaith dialogue is another form of religious peacemaking. Rather than seeking to resolve a particular conflict, it aims to defuse interfaith tensions that may cause future conflict or derive from previous conflict. Interfaith dialogue is expanding even in places where interreligious tensions are highest. Not infrequently, the most contentious interfaith relationships can provide the context for the most meaningful and productive exchanges.
• Given religion’s importance as both a source of international conflict and a resource for peacemaking, it is regrettable that the U.S. government is so ill equipped to handle religious issues and relate to religious actors. If the U.S. government is to insert itself into international conflicts or build deeper and more productive relationships with countries around the world, it needs to devise a better strategy to effectively and respectfully engage with the religious realm.

VEJ

Huckabee Endorsement Results in IRS Investigation

According to a report published on the American Baptist Press ("ABP") Website and the Los Angeles Times, the IRS has opened an investigation of First Southern Baptist Church of Buena Park, California, for violating the political campaigning prohibitions of IRC § 501(c)(3).  The IRS charges that the church's pastor, Wiley Drake, violated the law by using church resources to endorse Republican presidential candidate, former Arkansas Governor Mike Huckabee. 

According to the ABP report, Pastor Drake made the endorsements in August 2007.  In a press release printed on church letterhead, Pastor Drake stated:

After very serious prayer and consideration, I announce today that I am going to personally endorse Mike Huckabee.  I ask all of my Southern Baptist brothers and sisters to consider getting behind Mike and helping him all you can.

Shortly after he released the written statement, Pastor Drake also endorsed Governor Huckabee on an Internet-based radio show the church sponsors.  On that show, the pastor stated:

Yes, I endorsed him personally and, yes, we use the First Southern Baptist Church.  Everything we do is under the auspices of the church.

The IRS announced its investigation after Americans United for Separation of Church and State filed a complaint alleging that Pastor Drake and the First Southern Baptist Church had violated the law.  When informed about the complaint, Pastor Drake reportedly told the Los Angeles Times that he was not worried about federal tax regulators.  “They don't scare me,” he said. “I don't give a rip about the IRS. I don't believe in the separation of church and state, and I believe the IRS should stay out of church business.”   

Pastor Drake's statements notwithstanding, his attorney told the Associated Press that his client did not violate federal tax law by endorsing Huckabee because it was a personal endorsement, not done on behalf of the church.  Said the attorney:

Our position on this is that ... churches and pastors have First Amendment rights just like anybody else, and that includes the right to speak out.  They can feel free to personally endorse candidates. It was not a church endorsement, and he made that very clear.

VEJ

Osteen Steers Clear of Politics

According to report appearing in Christian Post, Joel Osteen, best-selling author and pastor of the 47,000-member Lakewood Church in Houston, Texas, has a strict policy of not allowing any politician or government office holder to speak in his church about politics.  Osteen is reported as saying that while he would introduce from the pulpit any political candidate or office holder visiting his church, his comments would be limited to "only a brief introducion and a thank you for their service."

Pastor Osteen's view contrasts with those of many pastors across America who have allowed or invited the 2008 presidential candidates to speak in their pulpits.  The Christian Post report concludes that

In a presidential race where being religious is an emblem of honor, candidates in both parties will surely continue to knock on the doors of pastors and their churches, although perhaps not at Osteen’s church.

VEJ

 

Mercer Professor Calls for Church to Engage World

In Care About Politics? Begin With the Church, Mercer University Professor of Christian Ethics, David Gushee, calls for the Church to engage the world, not withdraw from it.  Though arguing that "declining confidence in the church as the center of God's redemptive activity correlates directly with an exaggerated emphasis on worldly politics," Professor Gushee maintains that it would be erroneous to conclude that secular politics is unimportant or that the Church should withdraw from the world altogether.  Rather, the professor states,

A healthy church characterized by resurrection power will engage the world. It will do so through the moral witness of its own community life above all. And sometimes, yes, it will use words. It will speak to Obama and Hillary, to CNN and Fox. But it will do so with great care to protect the identity of the church, integrity of its mission, and independence of its message—and its messengers.

VEJ

 

Archbishop Addresses Church's Role in Civic Arena

Archbishop George H. Niederauer, head of the Roman Catholic Archdiocese of San Francisco, recently issued Religion and Politics - 2008, a statement intended to guide Roman Catholics on the proper relationship between religion and politics.  The statement reflects much of the advice contained in Faithful Citizenship, a document prepared by the United States Conference of Catholic Bishops.  According to Archbishop Niederauer, "'Faithful Citizenship' is not a voter's guide, nor does it endorse particular candidates or parties. Instead, it is intended to help Catholics recognize and understand the implications of their faith for their conduct as citizens of this country."

The Archbishop continues:

Religion and politics, church and state, should be independent of each other. However, both politicians and religious leaders rightly - and unavoidably - concern themselves with many of the same issues. Ethicists and moral teachers address the principles of right and wrong in human behavior, and those principles guide both believers and citizens. For instance, the question of how best to care for the poor and the homeless challenges religious and civil leaders alike, and it is only sensible that they communicate and even collaborate on the answers. A recent Vatican document makes the point that the political sphere has a "rightful autonomy . . . from that of religion and the Church - but not from that of morality."

Addressing the Catholic Church's opposition to Roe v. Wade and specifically answering the question whether the Catholic Church should now stop opposing "the settled law of the land," the Archbishop writes:

The United States Supreme Court is not infallible. It has handed down seriously flawed judgments in the past and can do so again. In 1856, in the Dred Scott decision, the Court found that a slave was property and hence had no personal rights. The Civil War and some Constitutional amendments corrected that mistake. Another example: In 1896, in Plessy v. Ferguson, the Supreme Court declared that separating school children by race was permissible according to the U.S. Constitution. After almost 60 years, the Court reversed itself in Brown v. The Board of Education (1954) . A third example: During the Second World War the Court declared constitutional the forcible internment in camps of American citizens of Japanese origin. Decades later Congress apologized for this action by the federal government and voted to indemnify the survivors of those camps.

With regard to Roe v. Wade, Catholics are not alone in questioning the Court ' s decision. The liberal political columnist Michael Kinsley has commented: "Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning, and an authentic example of judicial overreaching. "

VEJ

 

Church Asked to Pray for the Death of Those Who Dropped Dime to IRS

"The effectual, fervant prayers of a righteous man availeth much."  Leaders of Americans United for Separation of Church and State better hope certain prayers are either not effectual, not fervant, or not from righteous men.  Because according to a report in the Los Angeles Times, the pastor of a church that endorsed Mike Huckabee is now asking his church to pray for the death of two leaders of Americans United For Separation of Church and State (AU).  AU filed a complaint with the IRS after learning that Pastor Wiley Drake endorsed Huckabee.  Whether Drake did so in his personal capacity or in his capacity as Pastor of his church is still an open question.  But according to the Los Angeles Times article, "shortly after learning of Americans United's complaint, Drake called on his followers to pray for the deaths of two of the liberal group's officials, Joe Conn and Jeremy Leaming."  The article also reports that the IRS has sent a "notice of inquiry" to the church regarding the endorsement.

dkj

Article raises UBIT Issue with Regard to Churches

In Blurring the Line Between Prayer and Profit, the Hartford Business Journal raises questions about the "corporate" profit-making behavior of certain megachurches:

But while the First Cathedral pushes the power of prayer on its congregation, it isn’t leaving its own finances entirely up to God. T o support its size and mission, First Cathedral, a megachurch with upwards of 11,000 members, behaves less like a tax-exempt nonprofit and more like a full-fledged business — a national trend that’s raising gritty tax issues across the country.

The article makes the very sensible observation that current laws relating to 501(c)(3) organizations are ill-equipped to deal with houses of worship.  That is, houses of worship ought not to be lumped together with all the other charities and then regulated as though they were soup kitchens, museums, or other types of secular charities.  Someone must have made this point already.  Indeed, the de facto status quo ante probably admits that houses of worship are exempt under an unstated 501(c)(3).(5).  There is a palpable sense of "hands-off" that suggests that churches are exempt under a wholly different standard.  Anyway, here is another interesting excerpt from the article that suggests a different standard of unrelated business income likewise applies to houses of worship:

The church bookstore, The First Connection, is open seven days a week and is plugged repeatedly in the church service flyer, giving the word of God a shot of “act now” advertising.  Women are encouraged to buy the next book-of-the-month-club book at The First Connection “as soon as possible” because “this book will bless you.” Teens are “challenged” to read Martin Luther King Jr.’s autobiography, a copy of which can also be found in-house. And just in case anyone needs one, “all bibles are still 15 percent off!”  For those suffering from obesity, the church’s The Good Life Wellness Center pushes a weekly health tip in the flyer. But if turning to God instead of food doesn’t seem to help, the center offers health products for sale Sundays, Tuesdays and Thursdays.   The church’s in-house catering company, First Harvest, offers an after-service feast for church members but also caters to events outside the confines of the church.

I don't think this sort of behavior is unique to "mega-churches" by the way.  Even the small churches I've attended have looked for "mission-related" ways to regularly raise money.  I suppose the present uncomfortable truce between tax law and houses of worship works just as well as an explicit debate regarding the better articulation of separate tax exempt standards for house of worship.  Why open that pandora's box when, by and large, the present system seems to work (despite occasional dust-up's that suggest houses of worship are doing something illegal).

dkj