It’s Real Simple

Federal Tax Law Forbids Churches To Endorse Political Candidates

As I was checking out at the grocery store the other night, I spotted a magazine called Real Simple, a publication with the subhead “life made easier.”

What struck me was that it was 276 pages long. Perhaps it is just me, but life would start being easier if magazines like this were, say, 76 pages long. It is full of advertising for products I didn’t even know existed. (Who knew you could buy shoes with an air-circulation system built inside or that you could now add “black cherry streusel” flavoring to your coffee?) 

It also included articles on how to recycle everything you ever use, how to spend a day with the family picking apples, how to winterize your garden, how to buy new desk chairs, how to avoid over-cleansing or over-moisturizing your skin and even how to find out if your house is haunted. About 200 pages in, you also learn “10 Ways To Be Happier.” How about starting by buying a few apples at the store and ceasing to worry about whether your home is haunted until a ghost trips you down the stairs? Just a thought: simplify.

This magazine did make me think about how some lawyers have a habit of taking all kinds of simple things and encrusting them with layers of linguistic and technical mumbo jumbo combined with a complete suspension of common sense.

I don’t mean to knock lawyers too much. I am one, after all. But this tendency was apparent among Religious Right lawyers as AU labored prior to the election to stop illegal partisan politicking by churches and other religious charities.

The Internal Revenue Service says tax-exempt groups “are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.”

This doesn’t suggest a huge gray area. Endorsing or opposing a candidate isn’t something you do accidentally. Some do it on purpose: The Alliance Defense Fund (ADF), a Religious Right legal outfit, corralled 31 pastors into endorsing candidates from the pulpit on September 28. The ADF assumed somebody would report this activity to the IRS – which AU did – and then if the IRS penalized one or more churches with loss of tax exemption, fines or other actions, the ADF would swoop in and defend them in court.

ADF lawyer Erik Stanley and I were asked by the Los Angeles Times to do a back-and-forth set of online columns each day in the week preceding the so-called “Pulpit Freedom Sunday.” Over the week, Stanley set up all kinds of objections to the tax law, most of which have been used unsuccessfully in courts before. He charged that the language of the statute is too vague and that pastors don’t really know if they are crossing the line. (Remember, he doesn’t think there should even be a line.)

This vagueness argument is not persuasive, but it is being picked up by other conservatives. I have also discussed it with Jay Sekulow of the American Center for Law and Justice on our joint blog and debated it on Christian radio with Craig Parshall, the vice president of the National Religious Broadcasters Association.

A group of rabbis once asked me to speak on this topic, and one asked me how a religious leader would know if he had violated the law. I replied, “Ask yourself this question: Is what I am about to do or say with my congregation’s resources done for the purpose of helping somebody get elected? If your answer is ‘yes,’ then don’t do it.” This seemed like a reasonable suggestion to the assembled leaders.

The actions of the ADF’s pastors (and others we have reported) are so flagrant that there is no serious doubt about what they intended. Could anyone believe that a Catholic bishop who posted a letter on the diocese’s Web site noting that “the present democratic candidate for President” supports abortion and opposes the very concept of human freedom and comparing him to Herod Antipas, the Roman-era ruler who ordered the beheading of John the Baptist, is doing anything but opposing Barack Obama? 

Consider the New Mexico pastor who plastered two pictures on the side of his church. One is a picture of a smiling baby, with the word “McCain” beneath it; the other the remains of an aborted fetus with the word “Obama” under it. These are then capped off with the phrase “YOU WILL DECIDE.”

Were these gentlemen merely trying to start a dialogue? Of course not. They were telling people whom to vote for. They were using church resources and bringing the clout of an institutional endorsement right into the partisan political battlefield.

None of this activity is “vague.” It is a blatant violation of federal tax law. To be frank, we don’t have to worry about vague cases. There are plenty of the belligerent, stick-in-the-eye examples to be investigated. And they should be. No matter who has won the presidential election by the time you read this, the law needs to be enforced.

Barry W. Lynn is executive director of Americans United for Separation of Church and State.