"(Churches are blatantly and deliberately flaunting (sic, 1) the electioneering  restrictions..." Freedom From Religion Foundation.  (2)

The Foundation, representing atheists and agnostics, has  filed a federal court suit claiming that the IRS  has not enforced the laws that restrain charitable organizations from electioneering.  In particular, the Foundation points to  Pulpit Freedom Sunday  (October 7) in which 1,500 clergymen endorsed a candidate from the pulpit. Is the Foundation right?

Clearly, anyone has the right to make any statement anywhere under the First Amendment.  The  entire dispute is about the tax deductibility of contributions  to entities  (such as churches) that endorse  candidates or political parties.   The Freedom From Religion Foundation seeks to require the IRS to revoke the  tax-exempt status of  those entities that do so.

Although "church and state" should be separate,  in practice people's  views  on public affairs  (such as legislation and military service) are  often derived from their religious  opinions.  For example, the great struggles of the  Nineteenth Century against slavery and alcohol  were  both derived from religious perspectives, and churches were major players in both controversies.  In the mid-Twentieth Century  the struggles for integration  and civil rights were launched through  black churches, and it is no coincidence that the greatest leader of these struggles was Rev. Martin Luther King, Jr., a Baptist minister.  The earliest opposition to the War in Vietnam came from  pacifist churches, whose members enjoyed legal exemption from the draft.  Nearly all the opposition to legalization of abortion has also come from the churches, both Catholic and  Protestant.  

The US Supreme Court has ruled that every valid law  must have a secular purpose, but in truth the driving force behind passage of some valid laws is  the  religious belief of  the legislators.  For example, the federal Defense of Marriage Act, which limits federally-recognized marriages to those between a man and a woman, reflects the widespread  (faith-based) belief that homosexual activity is morally wrong.  Yet the law can be defended on the secular grounds that benefits  provided under the Social Security Act were  intended  for heterosexual  couples, and  it would cost the government  many millions of dollars to provide these benefits to same-sex couples.  

 So a line must be drawn between moral advocacy, which is the absolute right of every  person and  group in America, including those holding tax-exempt status under the IRS code, and  political action, which  is just grounds for revocation of tax-exempt status.  In my view, merely endorsing a candidate from the pulpit makes insignificant  use of  the money and other resources of a church or synagogue,  since the physical facilities are no more than a setting for the endorsement and are not depleted in any way by the words of the minister or priest.  Therefore, I  disagree with the objection  of  the Freedom From Religion Foundation to the Pulpit Freedom endorsements.  Such recommendations, by themselves, should have no bearing on the tax-exempt status of a church or other religious institution.

However, if a church  mails campaign literature, displays political posters or allows its  building to be used  (free of charge) for a political rally, then the church has  provided an in-kind  contribution to a political cause, and the contribution has been funded by  tax-exempt donations. (3)  That is over the line between advocacy and electioneering, and such activities should be grounds for revocation of tax-exempt status.

I contend that the Federal Court will rule that the Foundation has no standing to sue the Government,  since the interpretation of federal laws is  an executive function, and  the Foundation and its members  are not materially adversely affected by the policies that IRS enforces.  This would be consistent with previous rulings  against  tax-payer suits brought by  people against  wars and other federal activities and policies.

Gerald S Glazer

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 (1) They mean "flouting."

(2) Scott Bauer of the Associated Press, Nov. 16, 2012. 

(3)  Unlike a sermon,the right to displaly a poster  has a monetary value, which can be determined by the rent charged by commercial   billboards for similar space.