The IRS is stifling the free speech rights of religious leaders in a world where most Americans understand that the intersection of faith and politics is a well-recognized part of this nation's culture and heritage.
The problem: a 54-year-old federal tax law that prevents religious leaders from truly exercising their constitutionally protected free speech rights when they act in their official capacity as a pastor or head of a religious, tax-exempt organization.
The IRS regulation is clear: tax-exempt organizations may 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. A violation can result in the revocation of the organization's tax-exempt status.
In 1954, then-Senator Lyndon Johnson introduced an amendment that became law that barred tax-exempt groups, including churches, from participating in political activity. Johnson sought political retribution against an opponent who was assisted in his campaign by two non-profit organizations.
Religious leaders are muzzled by the IRS law. While they can speak out for themselves in their individual capacity, they are barred from either supporting or opposing a political candidate in their role as head of a tax-exempt organization.
On one hand, the IRS says it's permissible for religious leaders to discuss important issues of public policy (as they should), but are prohibited from supporting or opposing a candidate who takes positions on those issues. That's absurd. The prohibition makes no sense and has far-reaching implications. It censors pastors in the pulpit. And it turns the IRS, which was originally designed to collect revenue for the general treasury, into the speech police.
Religious leaders not only have a constitutional right to address the moral issues of the day, many believe they have a responsibility to do so. And, pastors should have the ability to speak out from the pulpit and support or oppose a political candidate based on where the candidate stands on the issues.
It's important to remember that this nation has a rich and welcomed history of turning to religious leaders and churches during the debate of the great moral issues of the day. The election sermon was once very common, with pastors acknowledging our religious heritage and addressing key issues of their day. During the Revolutionary era, pastors in the pulpit encouraged dissent and called for freedom - the prelude to the birth of our country - a country that cherishes free speech. That freedom is as important today as it was then. Unfortunately, pastors now risk losing their tax-exempt status if they speak out.
The IRS's enforcing regulations are confusing and bad law and hold that even what it calls coded words like "pro-life" and "pro-choice" can violate the law and result in loss of tax-exemption. It creates fear and intimidation. It's often unevenly applied. And it's simply unfair.
Consider this: The IRS restrictions apply to religious non-profit organizations, but they do not apply to other non-profit groups - including labor unions - whose leadership is free to endorse or oppose any political candidate in their official capacity. The rationale for the difference is that religious organizations are subsidized because the contributions they receive are tax-deductible by the donor. But by that explanation, labor unions are just as subsidized because union dues are deductible as an employee expense.
The time has come to give religious leaders unbridled free speech. Congress is considering legislation to repeal the 54-year-old law targeting churches and tax-exempt organizations.
Such a move won't result in churches or religious organizations being turned into political machines. It will make it easier, though, for religious leaders to speak out clearly about the issues and candidates that shape the lives and affect the future of millions of people of faith.
Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), a Washington, D.C.-based law firm focusing on constitutional law.
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