Debate: Keep the IRS Away From the Pulpit

(April 6) -- Pastors and churches shouldn't live in fear of being punished or penalized by the government. But in the ongoing discussion about whether church leaders can speak freely about electoral candidates from the pulpit, one argument frequently gets made: If a church wants to talk about the positions of electoral candidates, it can just give up the "gift" of tax-exempt status "bestowed" by the government.

That would be compelling -- if it wasn't so completely wrong.

That's because churches receive a tax exemption as a matter of constitutional right, not legislative grace. The U.S. Supreme Court stated decades ago that the power to tax involves the power to destroy, and no surer way to destroy the free exercise of religion exists than to tax it out of existence. Therefore, tax-exempt status for churches has existed independently of any special grant of privilege from the Internal Revenue Service.

Churches derive their tax exemption from the Constitution, and it is therefore not something the government can withdraw or condition without serious damage to the Constitution itself.

Indeed, the tax exemption of churches protects the proper relationship between church and state, making it one area where a strict separation of church and state is truly warranted. The Supreme Court noted this when it recognized that taxing churches would create much larger problems under the Constitution than leaving churches exempt from taxation.

And for almost the first 200 years of our country's history, that tax exemption of churches was recognized without any stipulations or conditions. Pastors spoke freely from the pulpit, both endorsing and opposing candidates for office, without anyone questioning whether they should be tax-exempt.

Then, in 1954, Sen. Lyndon Johnson found a clever way to silence some nonprofit groups in Texas who were opposing his candidacy for the Senate. The new tax rule he pushed through the Senate prohibited them from endorsing electoral candidates. Scholars attest to the fact that the Johnson amendment was not intended in any way to restrict the free speech of churches on the subject, but it has been used in that manner ever since. It is patently unconstitutional.

If one doubts the impact of this ill-advised piece of legislation, passed by Congress without debate or analysis, one only needs to take a peek at the activity of organizations like Americans United for Separation of Church and State to see how they wield it as a weapon to keep churches (at least the ones they disagree with) from having a voice. This "keep your opinions to yourself or else" threat has got to go.

The discussion about the extent to which pastors should speak about electoral candidates from the pulpit is a fine one to have. But it is a discussion for the church, not the IRS.

The reality is that the First Amendment provides protection for a pastor's right to speak freely from the pulpit. It is the job of the pastor, not the IRS, to determine the content of his sermon, and no government agency or official has the right to threaten a church's tax exemption simply because the pastor says something the IRS doesn't like. And this is only one attack on the church in America.

When we allow the government to step into the pulpits of America, the free exercise of religion is endangered, and the government plays the role of a religious monitor. As the Supreme Court stated in 1943, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in ... religion."

It is time to remove the IRS from its position as the orthodoxy police.

Erik Stanley is senior legal counsel and head of the Alliance Defense Fund's Pulpit Initiative. ADF is a legal alliance employing a unique combination of strategy, training, funding and litigation to protect and preserve religious liberty and the sanctity of life, marriage and the family.


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