Wednesday, May 28, 2008

Free exercise

Although almost never enforced, there is a provision in the tax code that threatens the tax exempt status of churches that support or oppose political candidates. It is not based on interpretation of the First Amendment, and is, in fact, arguably in violation of it. Jill Stanek reports that the Alliance Defense Fund [ADF] is going to court:
ADF will challenge one specific part of the code, the prohibition of a pastor to speak from the pulpit about views on political candidates. ADF considers this a violation of a pastor's First Amendment rights. This has never been challenged in court.
Stanek explains where the standard originated:
Challenged will be a 1954 change in the code called the Johnson Amendment, after then-Sen. Lyndon Johnson.

Johnson proposed the amendment to silence opponents to his second Senate race. Two nonprofit foundations were pouring money into a publicity campaign calling Johnson soft on communism.

There is no legislative history for the Johnson Amendment. According to the scant Senate record, then-Democrat Minority Leader Johnson stood up on the floor and proposed it as an attachment to an existing bill. After Johnson said the bill sponsor was in agreement, the presiding officer simply called for a voice vote. There was no debate. ....

Prior to 1954, churches were free to evaluate political candidates' positions on moral issues without fear the IRS would revoke their tax-exempt status.

The ramifications to the Johnson Amendment have been sweeping and catastrophic to the mission of the Church.

The Rev. Barry Lynn and his Americans United for the Separation of Church and State rely on this amendment to intimidate churches and pastors from expressing any opinion on any political issues whatsoever.

Many churches and pastors, wanting to live the biblical principle of behaving "above reproach," have overreacted to avoid criticism or risk losing their tax-exempt status and are today silent on topics this amendment does not even implicate, such as abortion. ....

On May 16, the Palm Beach Post posted a good op-ed on ADF's plan, stating in part:
The government can regulate – and tax – not-for-profit political action committees, but tax-exempt status for religious institutions is based on the First Amendment, not on a law passed in 1954. Congress cannot overrule the First Amendment protection of the free exercise of religion in its effort to regulate other not-for-profits. ...

This Supreme Court may well find for the church regardless of the merits of its case. [more]
I would rather not hear a pastor's political views from the pulpit. I would much rather hear the gospel preached, and I think the congregants fully capable of working out the implications for themselves. But I am also inclined to think that regulating what the pastor says is the business of the congregation - not the government.

Revolt of the pastors