DARING THE IRS

October 9, 2012

This past Sunday over 1600 clergy participated with their churches in  what has been called "Pulpit Freedom Sunday." This was not the first time this has taken place, but it will go down as the one making the most impact.

These 1600 plus churches were acting in defiance of the Internal Revenue Service (IRS) and endorsing political candidates from the pulpit.  In 1954 the tax code was amended to say that tax-exempt organizations– like churches– are prohibited from making political endorsements, but many are apparently done being silent.

Pastors nationwide preached sermons that analyzed the positions of various political candidates—an exercise in free speech that violates the flawed IRS rule known as the Johnson Amendment.

This Amendment was added to the tax code as a result of the political machinations of future President Lyndon B. Johnson who was running for reelection to the United States Senate. One scholar who studied this extensively concluded that the Johnson Amendment "is not rooted in constitutional provisions for separation of church and state…. Johnson was not trying to address any constitutional issue related to separation of church and state; and he did not offer the amendment because of anything that churches had done."

But since its passage in 1954, the Johnson Amendment has been applied to prohibit what a pastor says from the pulpit concerning candidates who are running for elective office. This means that under current IRS regulations, a pastor cannot say anything from the pulpit that may constitute support for – or opposition to – a political candidate.

The goal of Pulpit Freedom Sunday was to create a court case that will challenge the constitutionality of the rule in court.

But objectors—such as Bloomberg View, as just one example—have made several fundamental errors in their assertion that this is really just all a taxation issue that has nothing to do with free speech.

That editorial admits, “The line between religious belief and political action is often indistinct,” but then states that “pastors demanding government tax preferences for political crusades have clearly crossed it.”

But pastors who participate in Pulpit Freedom Sunday are not engaging in a “political crusade.” Instead, they are simply applying Scripture and theological doctrine to the positions held by the candidates running for office. Pastors have been applying scriptural teaching to circumstances facing their congregations for centuries. This is not “political” speech. Rather, it’s core religious expression from a spiritual leader to his congregants. That kind of expression is at the very center of the freedom of speech and religion protections in the First Amendment.

The real question is this: When has the government ever been allowed to condition any government-recognized status (such as tax-exempt status) on the surrender of a constitutionally protected freedom?

Those who so easily say, “If you want to exercise your right to free speech, just give up your tax-exempt status,” don’t see the obvious problem with that line of reasoning. Are they also prepared to say, “If you want to exercise your right to be free from unreasonable search and seizure, just give up your tax-exempt status” or “if you want to maintain your right against cruel and unusual punishment, just give up your tax-exempt status”?

Just as with those other rights, free speech is a constitutionally protected freedom, not a privilege that the government can grant or revoke while dangling the tax-exempt status of the speaker’s church over his head. That’s why the IRS rule against free speech for pastors should be struck down as unconstitutional.

Another straw-man claim that has been put forth is that Congress created the Johnson Amendment to ensure that churches don’t get a subsidy for political activity. First of all, as is well documented, this is not why Congress created the rule. Then-Senator Lyndon Johnson introduced the rule without debate and got it passed in 1954 with little notice as a means to silence non-profit groups that opposed his bid for re-election. Neither he nor Congress had any intention of applying the rule to churches to silence their religious speech, no matter how much groups like Americans United for Separation of Church and State and the Freedom From Religion Foundation would love for people to believe otherwise.

Secondly, the federal government does not “subsidize” religion when the IRS grants a tax-exempt status to a church. In fact, tax exemption cannot be not a government subsidy unless you believe that no one can actually have their own money and that it all belongs to the government—an idea that the U.S. Supreme Court rejected just last year.

It’s not the case that the church has a bunch of the government’s money and must justify why the government can’t demand it back. No, the government has a duty to justify why it must take money that belongs to its citizens.

And since churches, like most charities, are non-profits that have been outside of the government’s legitimate tax base since the founding of the nation, the government has no automatic right to the church’s money just because its pastor won’t give up his constitutionally protected right to free speech.

Some point to the deduction individuals receive for their church contributions as a “benefit” that justifies suppressing the free speech and freedom of religion of churches. But individuals can also claim a deduction for contributions to other tax-exempt groups, such as veterans’ organizations, who are not subject to the Johnson Amendment. Why should churches be treated any differently?

It is a well known fact that many African-American pastors go so far as to endorse candidates for office from their puilpits. Signs often go up near church property lines with their chosen candidate's name on them and various special interest groups such as MoveON, the NAACP, ACORN, the Southern Poverty Law Center, Centers for American Progress and others often are invited into the black churches to regiater voters and instruct them on how to cast their ballots, mostly by looking for the (D) following the candidate's name. It goes without saying, the IRS hasn't conducted investigations into these situations, nor have stripped these churches of their tax-exemptions.

Some cynics and conspiracy theorists like to point to a handful of church excesses and demand that all churches be burdened with taxes. But that doesn’t wash either. The vast majority of churches are far from “wealthy” and do tremendous good for their communities—often relieving the government and taxpayers of having to provide a whole host of community services. And that’s just one reason why the government has never done taxpayers and all citizens the disservice of taxing churches and charities. Reducing their ability to do good does no one any good whatsoever.

Most troubling of all is the ease with which some who oppose Pulpit Freedom Sunday like to cite the so-called “separation of church and state” while at the same time advocating that the state regulate the speech of the church. No, as America’s founders would have agreed, a pastor is the one who should determine what he says from the pulpit, not the federal government—and that is as it should be.

A rarely quoted passage from the Bible should become the clarion call for clergy who wrestle with whether to go against the IRS. It is Ezekiel 33 wherein the prophet is called by God to be a "Watchman." It is the duty of the watchman to alarm his flock of impending danger. The penalty for failing in this matter is God holding him accountable in the strongest possible way. I believe that this passage applies today. The pastor is the watchman and his warning should be sounded lest his flock be scattered by the enemy.

Today's enemy is the Secular Progressive movement which drives our government more and more into an anti-religious fervor, the likes of which would make one think of the Soviet Union's banishing of religion. If the government is led by those who would destroy Godly traditions and customs with which this nation was founded, then the pastor must warn his people. Even if it means endorsing a candidate and exposing another: The IRS be damned.


We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.