Under federal law, it is illegal for churches and other so-called 501©(3) nonprofit organizations to “participate in, or intervene in … any political campaign on behalf of (or in opposition to) any candidate for public office.” But in recent years the Internal Revenue Service has failed to aggressively enforce the law, despite open defiance by religious groups that believe – erroneously – that they have a 1st Amendment right to endorse candidates without losing their tax-exempt status.
That soon may change. The Freedom From Religion Foundation, which had sued the IRS seeking to require it to enforce the law, says it has reached an agreement with the IRS under which the agency has adopted procedures for “reviewing, evaluating and determining whether to initiate church investigations.”
News of the agreement between the IRS and the Freedom From Religion Foundation already has led to overheated charges that the IRS is about to launch an assault on religious liberty. In a letter to Attorney General Eric Holder, Oklahoma’s elected attorney general suggested that the settlement jeopardized the right of religious organizations “to encourage their members to engage in the political process in a manner consistent with the core tenets of their religion.”
The notion that the ban on endorsements violates the 1st Amendment is mistaken. Congress is free to condition tax exemptions – which can be worth millions of dollars – on an agreement by churches and charities to refrain from speech that otherwise would be constitutionally protected.
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Granted, some sermons will fall into a gray area. That was the case with a sermon at All Saints Episcopal Church in Pasadena, Calif., on the Sunday before the 2004 presidential election. The retired rector who spoke didn’t explicitly endorse either George W. Bush or John F. Kerry, but he suggested that Jesus would have condemned Bush’s Iraq war strategy. (In 2007, the agency closed its investigation of All Saints but continued to maintain that the sermon was illegal.)
The IRS could avoid the problem of overreaching by applying to sermons the clear standard set forth by the Supreme Court in 2007 for evaluating political advertisements. Chief Justice John G. Roberts Jr. wrote that an ad should be construed as an endorsement only if it “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” What the IRS cannot do is ignore the law.