Risky Business: Religious Right Attorney Tells Christian Pastors To Defy The IRS

Fundamentalists like Barber have a habit of seeking exemptions from laws they don’t like – or flat out ignoring them – but the First Amendment simply doesn’t give anyone the right to do as they please all the time in the name of religion.

Some far-right Christians have a hard time obeying the law. Among them is Religious Right attorney Matt Barber, who really dislikes the idea of church-state separation and particularly has a bone to pick with the Internal Revenue Code’s prohibition against pulpit politicking by houses of worship.

In a recent column, Barber spouted the tired, old line that “the words ‘separation of church and state’ are found nowhere in the U.S. Constitution….”

While that is technically correct in the sense that the phrase does not appear verbatim, the spirit of that idea is absolutely enshrined in America’s governing document. As famed church-state lawyer Leo Pfeffer once explained: “It is true, of course, that the phrase ‘separation of church and state’ does not appear in the Constitution. But it was inevitable that some convenient term should come into existence to verbalize a principle so widely held by the American people….”

In other words, church-state separation is a summary of the Constitution’s religion clauses. That doesn’t mean it doesn’t exist.

Barber, who has a degree from Pat Robertson’s Regent University and teaches at Jerry Falwell Jr.’s Liberty University School of Law, claimed separation is a lie that is part of “a decades-long religious cleansing campaign.” Of course no such campaign actually exists in the United States, but Barber cited an 1800 letter from Thomas Jefferson as “proof” that Jefferson intended only to prevent “Congress from affirmatively ‘establishing,’ through federal legislation, a national Christian denomination (similar to the Anglican Church of England).”

Jefferson certainly sought to prevent an established church from taking hold in the United States. But if that was his only goal, why, then, did he write famously two years later that “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”

That statement shows Jefferson was not content with simply preventing the establishment of an official church in the United States; he didn’t want government and religion to mix at all.

From there, Barber goes on to attack “hard-left anti-theist groups like the [American Civil Liberties Union], People for the American Way… and Barry Lynn’s Americans United” for our supposed attempts to “employ a cynical disinformation scheme intended to intimidate clergy into silence on issues of morality, culture and Christian civic involvement….”

Barber wrote that he specifically does not like Americans United’s Project Fair Play, which we started in 1996 to ensure that houses of worship would play by the rules when it comes to politics. As part of that effort, we send thousands of letters to houses of worship explaining that while they are permitted to discuss candidates and issues, they must refrain from endorsing or opposing individual candidates or parties seeking elected office.

Barber does not care for that one bit.

“AU, for instance, annually sends tens-of-thousands of misleading letters to churches across the nation warning pastors, priests and rabbis that, ‘If the IRS determines that your house of worship has engaged in unlawful intervention, it can revoke the institution’s tax-exempt status.’”

Continued Barber: “In reality, there is no legal mechanism whatsoever for the Internal Revenue Service to take away a church’s tax exemption. Churches are inherently tax-exempt, or, better still, ‘tax immune,’ simply by virtue of being a church. Churches do not need permission from the IRS, nor can the IRS revoke a church’s tax immunity.”

Once again, Barber is wrong. The IRS can, and has, punished houses of worship that endorsed candidates. The most famous incidence is the Church at Pierce Creek, which lost its tax exemption in 1995 for running newspaper ads that told people not to vote for Bill Clinton in 1992. But that isn’t the only case. In 1993, Jerry Falwell’s “Old Time Gospel Hour” lost a portion of its tax exemption and paid $50,000 in taxes for political activities in 1986 and 1987. Another Falwell group, Liberty Federation, also lost its tax exemption in ’93 because it did not operate purely for religious or charitable purposes.

Barber closed out his missive by encouraging Christian clergy to defy the tax code.

“Pastors, this election season follow the lead of Christ. Speak moral/political truths, in love, fearlessly. Remain undaunted by the threat of government intervention or punitive action by the state. And encourage your congregation to vote for candidates who sincerely reflect, in both word and deed, a biblical worldview and biblical principles.”

As a lawyer, Barber should know better than to encourage anyone to poke the IRS. And while there is nothing wrong with clergy speaking “moral/political truths,” the fact remains that the tax code does not permit partisan pulpit politicking that is designed to get a candidate elected or defeated.

Fundamentalists like Barber have a habit of seeking exemptions from laws they don’t like – or flat out ignoring them – but the First Amendment simply doesn’t give anyone the right to do as they please all the time in the name of religion. Barber and his allies may one day have to learn that lesson the hard way.