Written by: Eric Wasik
Researched by: Edward S. Bushnell and Kirk Strohman
Edited by: Peter Fehrs and Casey King
Managing Editor: Lauren E. Trent

Every four years an invisible, omnipresent visitor arrives. You cannot escape it. It interrupts your peace as you are watching television in your living room. When you drive to work, it follows you. It is the only thing people talk about around the water cooler.

The presidential election.

It seems like everywhere you go, someone is talking about Barack Obama or John McCain. Traditionally, one could seek refuge from the race for the White House in places of worship. A new attempt to introduce presidential politics into the pulpit, however, has created a controversy that could result in some congregations losing one of their most valuable assets: their tax-exempt status.

Sermons regarding presidential candidates and politics have largely been unwelcome in worship services following the Johnson Amendment of 1954. This provision forbids tax-exempt organizations from participating or intervening in political campaigns. Most religious groups in America are tax-exempt as a result of Internal Revenue Code section 501(c)(3), which frees certain non-profit groups from paying taxes on contributions they receive. The tax-exempt status is meant to encourage Americans to engage in certain valued activities, such as religious expression or the prevention of child and animal abuse. By allowing groups that facilitate these activities to take donations tax-free, we allow them to maximize their potential charitable intake. Congress enacted the Johnson Amendment to give guidance to tax-exempt organizations regarding their political involvements, and campaigning for presidential candidates is not permitted as a tax-exempt activity.

Bill Clinton and the Church at Pierce Creek

As you can imagine, some religious leaders were less than pleased with being told what they couldn’t say to their congregations. One church, the Church at Pierce Creek, challenged the law on the eve of the 1992 presidential election. The Church took out an ad in the U.S.A. Today and the Washington Times urging Christians to vote against Bill Clinton due to his positions on several social issues, including homosexuality and abortion. The ad caught the attention of the IRS, resulting in an investigation and revocation of the church’s tax-exempt status. The Church challenged this action, “alleging that the IRS had no authority to revoke its tax exemption.” At the core of Pierce Creek’s challenge was that, “the revocation violated its right to free speech and to freely exercise its religion under the First Amendment of the U.S. Constitution and the Religious Freedom Restoration Act of 1993.”

The Court of Appeals for the District of Columbia rejected these arguments, holding that tax-exempt status was a “subsidy” granted by Congress. As such, Congress has the right to refuse to fund certain speech. The court quoted an older case, Cammarano v. United States, which held:

“[P]etitioners are not being denied a tax deduction because they engage in constitutionally protected activities, but are simply being required to pay for those activities entirely out of their own pockets, as everyone else engaging in similar activities is required to do under the provisions of the Internal Revenue Code.”

The court also noted that the actual effect of revoking tax-exempt status might not be as severe as the Church argued because a church can reapply for the status if they can show they are no longer in violation of the Johnson Amendment.

Alliance Defense Fund Carries the Torch

Even though the Pierce Creek case occurred 16 years ago, the fight for the right to stump for politicians at church services continues today. In late September, a number of religious leaders preached presidential politics to their congregations, spurred on by the Alliance Defense Fund (”ADF”). Six leaders openly endorsed John McCain’s candidacy and one said Christians could not vote for Barrack Obama. The ADF, a conservative legal aid group, encouraged churches to challenge the Johnson Amendment (like the Church at Pierce Creek did) on the ground that the Amendment violates the Constitution’s protection of free speech and the right to religious expression.

The ADF has stated that the recent church endorsements are test cases to see if the IRS will challenge the churches’ tax-exempt status, with the ultimate goal of having the Amendment deemed unconstitutional. Erik Stanley of the ADF argues that these cases are different than the Pierce Creek case because this religious expression is direct speech to the congregation, not a newspaper ad to the public. The ADF and the churches might not have to wait long to find out if their argument will be successful. Americans United for Separation of Church and State has asked the IRS to investigate the seven churches that endorsed John McCain or argued against Barrack Obama’s candidacy. The churches are not shying away from any investigation, promising to provide audiotapes of the sermons in question. All bets are on a legal battle if the IRS decides to revoke the churches’ tax-exempt status.

So, do these churches have a prayer in the face of the Pierce Creek decision? The court in that case had little patience for the First Amendment and religious freedom-of-expression arguments. What has changed? Besides the makeup of the court, the facts of this case could make all the difference. As the ADF has noted, this case involves direct speech from pastors to their congregations. There is a real contrast between sermon and a newspaper ad. Courts might be reluctant to “interfere” or “intervene” with what is seen as the essence of religious services. Many of the pastors were careful to frame their sermons in the context of who represented the values they believed the Bible supported. The reason being, the more the pastors can point to biblical and religious teaching aspects of their speech, the greater the protection this “religious speech” will receive.

An Uphill Battle?

The churches face an enormous challenge in overturning the Pierce Creek decision. First, several cases have held that the government has the ability to attach conditions to the funds they grant. One such case, Rumsfled v. FAIR, held that the government had the right to restrict university funding depending on whether the school allows the military to recruit on-campus. Although the government isn’t actually giving money to churches, the right to a tax exemption provides a real economic benefit.

Second, in the Pierce Creek case, the Johnson Amendment was judged constitutional because it applies evenly to all non-profit groups and is content-neutral — it doesn’t judge the content of the speech, but restricts political endorsements across the board. Because there is no judgment or restriction based on content, the possible effect on free speech is minimized. The government isn’t making a content-based choice, like supporting Democrats or Republicans; instead, they are merely choosing not to fund tax-exempt entities’ political speech.

The one wildcard — and it is a big one — is that it is quite possible that a court could see sermons as a special form of protected speech because of their religious importance. The Court could rule that the prior holding applying to newspaper advertisements does not afford adequate protection to religious speech. This would be a departure from the Pierce Creek holding and would signal a shift in jurisprudence, but in an election year marked by calls for change, such a departure from prior holdings might be change that some churches could believe in.