The IRS Needs to Pay Attention to Pulpit Freedom Sunday 2016

In just over eight months, we'll be voting for our new president. Irrespective of who's on the ballot--and, for that matter, irrespective of who ultimately wins--one thing is for certain: in seven months or so, a bunch of church-goers are going to hear their spiritual leader endorse a candidate.

Sometime during the month leading up to the presidential election,[fn1] the ADF will sponsor its annual Pulpit Freedom Sunday, an act of civil disobedience by churches[fn2] and an attempt to challenge the campaigning prohibition in court.

Basically, in 1954, Congress added a short phrase to section 501(c)(3) of the Internal Revenue Code. That phrase prevents an organization from qualifying for a tax exemption unless it

does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.

The ADF believes that this campaigning prohibition is unconstitutional, at least as applied to churches. So for the last eight years, it has encouraged pastors to flout the rule, to include an explicit endorsement of a candidate in their sermons leading up to Election Day, and then to send a copy of the sermon to the IRS.

During the last presidential election, more than 1,500 pastors apparently participated. And how many churches lost their tax exemptions? None.

The ADF has organized Pulpit Freedom Sunday deliberately to create a test case that it can take to the courts. It expects the courts to strike the campaigning prohibition down as unconstitutional. But it's not just the ADF that wants the test case: Americans United for Separation of Church and State also wants the IRS to enforce the campaigning prohibition. 

Clearly, the two groups think the case will turn out differently. Which is right? It's unclear. Scholars (including me!) have argued extensively about whether the prohibition is constitutional as applied to churches. But the question has only been adjudicated once, by the D.C. Circuit. The D.C. Circuit upheld the prohibition as constitutional, and, for whatever reason, the church didn't appeal to the Supreme Court.

Note that, for various procedural reasons, nobody has standing to challenge the prohibition unless and until the IRS revokes a church's exemption.

Why hasn't the IRS acted until now? Probably because there's really no upside to revoking a church's tax exemption; it's not going to significantly increase the government's revenue, and it would likely be unpopular at best in a world where politicians run against the IRS as a central part of their platform.

But at some point, the reticence becomes too much, as it has here: in 2012, the Freedom From Religion Foundation sued the IRS for not enforcing the prohibition, and eventually settled with the understanding that the IRS would eventually start enforcing it.[fn3] 

And, as I lay out in my recent University of Colorado Law Review article, now's the time. Pulpit Freedom Sunday has reduced the search costs to nearly nothing--pastors send their sermons in to the IRS. I mean, the IRS has to actually look at the sermons, because there's no guarantee that participating pastors fully understand how to violate the campaigning prohibition. (Check out this sermon, for instance: the pastor makes a strong case for religious involvement in politics, but churches aren't prohibited from being involved in politics. Just from endorsing or opposing candidates, which the pastor doesn't do here.)

So what should the IRS do? It should announce, today, that is will revoke the tax exemption of every church that endorses or opposes an candidate for political office as part of Pulpit Freedom Sunday. Then it can sit back and wait for the sermons to arrive, follow through, and get ready to litigate.

That way, both the ADF and Americans United will be happy, and we can have closure on the constitutional status of the campaigning prohibition, at least as applied to religious organizations.

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[fn1] I'm pretty sure that I read that the ADF is expanding Pulpit Freedom Sunday this year to encompass the whole month of October, but I can't currently find anything that gives a date or dates.

[fn2] Also, presumably, synagogues and mosques and other religious organizations. But honestly, the ADF seems to be thinking Christian-centric, with its choice of Sunday as the relevant day.

[fn3] BTW, though this has nothing to do with this post, isn't the perma.cc thing awesome? The link is already broken, but the University of Colorado Law Review has given it a permanently-findable home.