WASHINGTON — The Constitution forbids restraint of speech. Nevertheless, clergy claim the Internal Revenue Service has a tool that restrains what gets preached from the pulpit.

It’s called fear.

“The IRS threatens the life of the church,” said Daniel Blomberg, legal counsel for the Becket Fund for Religious Liberty.

Blomberg represented Milwaukee’s Holy Cross Anglican Church and its pastor, Rev. Patrick Malone, in a high-profile, three-party lawsuit that also included the IRS and the Wisconsin-based Freedom From Religion Foundation (FFRF v. Koskinen). The FFRF wanted a federal court to force the IRS to penalize churches and clergy that tell members how they should vote.

The suit was dismissed in July at the urging of the plaintiff, the FFRF, after Holy Cross joined the suit with a motion to intervene.

“The IRS wants clergy to know one thing in no uncertain terms: ‘If you say certain things at certain times that make politicians uncomfortable, we can take away your tax-exempt status,’” Blomberg said. “‘We can take away deductions from people who fund the church, and we can come at the church and church leaders personally.’”

It’s tough talk from the IRS, but the agency has never followed through. The threats, Blomberg insists, are hollow and unenforceable — a lesson he believes the IRS may have quietly taught the FFRF after Holy Cross joined the suit.

IRS officials did not return calls from the Register.

The IRS uses its website, letters and literature to warn church leaders against telling their flocks how to vote. The agency bases its position on a 1954 update to the tax code known as the Johnson Amendment.

Initiated by then-U.S. Sen. Lyndon B. Johnson, the late Texas Democrat who became president, the law purportedly prohibits tax-exempt organizations from endorsing or opposing candidates and, some argue, public-policy positions.

James Davidson, emeritus professor of sociology at Purdue University, explained in the Review of Religious Research how Johnson crafted the amendment to protect himself from two secular nonprofits that openly campaigned against him with claims he was soft on communism.

 

Website Warnings

The IRS website warns: “All section 501(c)(3) organizations are absolutely prohibited 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 agency doesn’t stop with warnings against direct endorsements. It also tells nonprofits how expression of policy positions may cause them harm.

“Voter education or registration activities with evidence of bias that (a) would favor one candidate over another; (b) oppose a candidate in some manner; or (c) have the effect of favoring a candidate or group of candidates will constitute prohibited participation or intervention.”

A variety of guidelines published in the 30-page IRS pamphlet “Tax Guide for Churches and Religious Organizations” ostensibly determine which nonprofit speech is allowed. Blomberg said no one can make sense of it.

“There isn’t a clear rule saying you can say this but not that,” Blomberg explained. “If you’re a pastor, you can’t be sure unless you just don’t say anything at all. That’s how most of them respond. They steer clear of politics and public policy entirely.”

Blomberg calls it a “chill effect” that enables the IRS to achieve restraint at the pulpit without imposition of consequence or force. Though many secular nonprofits are overtly political, the Freedom From Religion Foundation pressures the IRS to threaten churches.

The organization has complained to the IRS for years about ministers and priests who preach against abortion, claiming they establish a bias in favor of pro-life candidates. Its director, Annie Laurie Gaylor, has direct ties to a nonprofit that advocates abortions, pays for them and openly applauds support of pro-abortion candidates.

“Groups like the FFRF want to silence Christian conservatives,” Holy Cross pastor Rev. Malone said. “They don’t like anything we stand for. We declare Christ as Lord of all, which means no one else gets to be lord of all. So they want the IRS to silence us.”

 

FRRF Double Standard?

No longer satisfied with the IRS’ intimidating de facto “chill effect,” the Freedom From Religion Foundation sued to exact enforcement of the threats on churches and clergy.

“We sued to compel the IRS to follow its own rules,” Gaylor told the Register.

In addition to heading FFRF, Gaylor serves on the board of directors of the Wisconsin-based Women’s Medical Fund, which raises money to pay for abortions.

Though Gaylor wants churches punished for urging pro-life voting, the Women’s Medical Fund — a 501(c)(3) — subtly praised support of pro-abortion candidates in a 2012 Thanksgiving appeal fundraising letter.

“We knew you would be helping those political candidates who support abortion rights, but now it is time to remember the very needy Wisconsin woman who may have access to abortion but does not have the funds to pay for one,” wrote fund administrator Anne Nicol Gaylor, Annie Laurie Gaylor’s mother.

“We abide by the law. We support the law,” Annie Laurie Gaylor said of the Freedom From Religion Foundation, ending the conversation when asked about her association with nonprofit support of pro-abortion candidates.

A growing force of attorneys, clergy and nonprofit leaders view the rules — those Gaylor wants enforced against churches — as affronts to the First Amendment’s prohibition of government interference with speech and the free exercise of religion.

Rev. Malone counts himself among clergy who openly defy IRS prohibition of political speech.

“If the IRS had its way, I would not teach against abortion,” he said.

The pastor participates in Pulpit Freedom Sunday each fall, a nationwide event sponsored by the Alliance Defending Freedom.

On Pulpit Freedom Sunday, about 1,500, mostly evangelical, clergy violate the Johnson Amendment with their homilies or sermons. They sign a petition that questions government’s authority to regulate speech. In speaking with the Register, Gaylor mentioned the event as a major reason she filed suit.

 

Legal Complexities

Blomberg said some clergy want the IRS to “either put up or shut up,” as enforcement would at least create an opportunity to defeat the Johnson Amendment in court. But it’s not likely they’ll “put up” and give a pastor his day in court. So far, Blomberg said the IRS has not revoked the tax exemption of a church because the minister instructed his assembly during a religious service about a religious duty to vote a certain way.

The dim prospect of enforcement, and therefore the lack of opportunity for a robust defense, inspired Rev. Malone to get involved in FFRF’s lawsuit. A motion to intervene, he believed, provided the best opportunity to tell the court about his need to oppose abortion from the pulpit.

“It’s wrong for a federal agency to tell a minister what he can and cannot say in his house of worship,” Blomberg said. “It’s as protected as speech gets, and I think the IRS knows it.”

Rev. Malone’s intervention in the Freedom From Religion Foundation’s lawsuit oddly sided with the IRS — the agency that has threatened an aspect of his ministry for years — by challenging the plaintiff’s demand for enforcement. His motion explained that FFRF’s action, if successful, would force the IRS to punish him and other clergy who tell the faithful to vote pro-life.

“Father Malone and the Church seek to protect their statutory and constitutional rights against the imposition of such punishment and therefore oppose FFRF’s lawsuit,” the motion explained.

It explained the minister’s duty to preach in a way the FFRF opposes.

“Anglican teaching requires Father Malone to preach to the Church about what it means to be a follower of Jesus Christ … without censoring any part of Scripture,” the motion stated.

Rev. Malone told the Register he has a duty to advocate justice in society, which includes preaching sermons that support politicians who protect unborn children.

Blomberg said Rev. Malone’s legal strategy was a bit of a “double-edged sword.” It argued against enforcement, even though enforcement could lead to the Johnson Amendment’s demise. Because enforcement isn’t likely, Rev. Malone believed much could be gained from a motion that confronted the court, the IRS and the FFRF with First Amendment protections believed to defend churches from censorship.

Gaylor insisted Rev. Malone’s intervention wasn’t the reason she dropped the suit. Rather, she said IRS officials promised to work harder to punish political speech in churches.

A June 27 IRS letter, written before the dismissal, told the Justice Department about 99 churches that warrant “high-priority examination” for electioneering.

“We dismissed without prejudice so we can reopen it if the IRS does not follow through,” Gaylor said. “This gives some teeth to our agreement to dismiss.”

But even the Freedom From Religion Foundation’s legal agreement to the dismissal concedes the IRS may have trouble enforcing threats against political speech in churches, even if the agency tries.

“The IRS is believed to have globally suspended enforcement of the electioneering restrictions as to all tax-exempt organizations,” FFRF’s motion states. “The global moratorium is not specific to churches, but arises from concern regarding the IRS’ enforcement practices in general.”

 

A Thaw in the ‘Chill Effect’

Regardless of any promises the IRS made to the FFRF, Blomberg believes Gaylor and her attorneys came to understand the dangers of a genuine challenge to the IRS code.

“The FFRF tried to force the IRS to enforce its code,” Blomberg explained. “But a church intervened to defend the Constitution, which is the law that should prevail in court. This put the Johnson Amendment on the table. The IRS wants to continue chilling speech, and so does FFRF. So they worked together to get this dismissal. They both needed out. If the code actually gets enforced, churches will be able to defend themselves and will likely win. If that happens, the IRS’ threats have no effect, and the IRS and the FFRF lose their chilling effect — the only control they have on the pulpit.”

And Rev. Malone believes the “chill effect” will begin to thaw as clergy realize the IRS cannot control expression. He hopes his intervention will help spread the message far and wide.

“The involvement of the Becket Fund representing me showed the IRS and the FFRF how serious this case would be for them if it went any further,” Rev. Malone said. “The First Amendment trumps a politically motivated amendment to the tax code.”

Wayne Laugesen writes from Colorado.