A quick background on Pulpit Freedom Sunday: on July 2, 1954, Lyndon Johnson proposed that Section 501(c)(3) (the Internal Revenue Code section that exempts, among other things, churches, universities, and the NCAA from tax) be amended to prevent exempt organizations from campaigning on behalf of or against candidates for office. [fn2] There’s no legislative history, and, in fact, no record of the voice vote on the amendment. But it passed. Note, though, that the prohibition wasn’t particularly aimed at churches; in fact, most people seem to think Sen. Johnson was worried that (non-religious) nonprofits were trying to unseat him.
Since 2008, the Alliance Defense Fund has sponsored Pulpit Freedom Sunday. The basic idea is that pastors flout the prohibition, deliberately supporting or opposing a candidate for office in their sermons. Which they record. And send to the I.R.S. The idea seems to be to “bait” the I.R.S. into attempting to revoke at least one church’s tax exemption, then challenge the revocation to the Supreme Court, in an effort to have the prohibition overturned as unconstitutional.
Will the I.R.S. take the bait? Probably not. In 2006, the I.R.S. released a study it had done of its 2004 Political Activities Compliance Initiative. Basically, it looked at 82 cases in which it the non-profit allegedly violated the prohibition.[fn3] It determined that 18 of the public charities had not, in fact, violated the prohibition. Of the 64 violators, 53 received a (maybe nasty) letter, 3 were fined, and 4 (none churches) lost their exemption. This in spite of the fact that the penalty for violation is loss of exemption, with a fine in certain circumstances.
And if the I.R.S. did revoke an exemption? The church might be out of luck. There’s only one court case that I know of addressing the I.R.S.’s authority to revoke a church’s exemption. In Branch Ministries v. Rossotti, the Court of Appeals for the D.C. Circuit held that the revocation of a church’s exemption as a result of violating the prohibition met the constitutional muster. Among other things, the church did not contend that not participating in politics would violate its beliefs; moreover, the worst thing that would happen would be the church would have less money to work with. This, the court held, was not “constitutionally significant.”
Would the Supreme Court follow the same analysis as the D.C. Circuit? I don’t know; that precedent is out there, though.
On a personal level, I’m conflicted. On the one hand, I like the manner of protest. The participants are not trying to be sneaky—they are willing to risk the loss of exemption in order to stand up for their (political) beliefs. On the other hand, I like Church as a more-or-less politics-free zone. And I generally agree with the court’s reasoning in Branch Ministries.
Either way, though, another year, another Pulpit Freedom Sunday. I hope you enjoyed yours.
[fn1] Actually, we also missed the Blessing of the Animals, in honor of St. Francis of Assis. But frankly, that’s a much cooler tradition than Pulpit Freedom Sunday (shhh!).
[fn2] The history actually goes beyond that: as early as 1919, the Treasury Department was trying to determine how involved exempt charities could be in politics.
[fn3] 57 percent of the charities were not churches, while 43 percent were.