Hundreds of defiant pastors will be joining forces next month for “Pulpit Freedom Sunday,” an event intended as a “head-on constitutional challenge” to the rules prohibiting churches from endorsing or opposing political candidates.  Participation has grown every year since 2008 when the movement began.  Pastors participating in this October 7th event will be speaking unequivocally for and/or against specific presidential candidates, risking revocation of their 501(c)(3) tax-exempt status.  A risk they welcome, apparently.  They will be recording each sermon and sending it in a care package to the IRS.  They are hoping the IRS takes action against one or all of the pastors so they can then litigate and (eventually) take it all the way up to the Supreme Court.

I’m not sure churches will have a leg to stand on in challenging the constitutionality of this 58-year-old tax code provision.  It would be one thing if the federal government were unilaterally restricting what church representatives can and cannot say over the pulpit, but what about the tax relief offered to non-profit organizations!?  Its a dual tax subsidy for churches: (1) their income is not taxed, and (2) donations to them are tax-deductible.

Sounds like a fun event though — a real American kind of thing to do.  Constitutional law lawyer, tax lawyer,  and interested citizen alike will be watching to see how the IRS responds.

Americans United (AU) is a watchdog group based in Washington D.C. that seeks to protect religious freedoms and educate the American people about the separation of church and state.  Yesterday AU (under the direction of its tax attorneys no doubt) wrote to the Internal Revenue Service — specifically the Director of the Exempt Organizations Division — asking for an investigation of a Catholic Church in Del Paso, TX.  AU claims that the St. Raphael Catholic Church violated the restrictions of Revenue Code section 501(c)(3) that prohibits exempt organizations 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.”  The IRS has authority to revoke an organization’s tax exempt status, forcing them to find tax relief outside the parameters of 501(c)(3).  See the full letter here.

The alleged violation took the form of a printed church bulletin, and this is what was written:

I am asking all of you to go to the polls and be united in replacing our present president with a president that will respect the Catholic Church in this country.  Please pass this on to all of your Catholic friends.

I find it odd that whoever was responsible for including this language in the bulletin appears to have been at least somewhat up to speed on the applicable law.  I say that because the message seems purposely vague, in that it does not come out and name any names.  It appears that an attempt is being made to imply a vote for Romney without coming out and saying it directly. 

However, as we know, the law also prohibits any communications or activities that have the effect of supporting or opposing a political candidate.  Whether this is a message directly opposing Obama or indirectly supporting Romney, it doesn’t matter.  Either one would be a violation.

This church is going to have an uphill battle with this tax problem, assuming it even has a leg to stand on.  I believe the fatal error was that the statement appeared in print because (1) there is physical evidence of the violation, and (2) there is little doubt that the statement was made in some kind of official capacity on behalf of the church.