Advancing Religious Liberty
5/11/11 at 05:54 PM 0 Comments

Three Years into the Pulpit Initiative – Has the IRS Responded?

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Author: ADF Senior Legal Counsel Erik Stanley

Many of you are aware that in 2008, ADF launched the Pulpit Initiative.  This initiative is intended to restore a pastor’s right to speak freely from the pulpit without fearing any government censorship or control.  Pastors have the right to proclaim biblical truth from their pulpits without having to worry about the government looking over their shoulder and threatening their churches with revocation of tax exempt status if they say something the IRS doesn’t like.

2008 was the inaugural year for the Pulpit Initiative.  Thirty-three churches from 22 different states participated.  The pastors preached sermons that addressed the candidates running for office in light of Scripture, made specific recommendations as to whether a particular candidate was worthy of a Christian’s vote, and then sent recordings of their sermons to the IRS for review.

In 2009, an off-election year, 84 churches participated in the Pulpit Initiative.  Those pastors in states facing elections (mostly Virginia and New Jersey) addressed the candidates for office in the same way the pastors had done the year before.  The other pastors who participated preached sermons about current government officials in an effort to remind their congregants that the Bible has a lot to say about the selection of our national leaders and the morality espoused by those who would lead our country.

This past year, almost 100 pastors participated in Pulpit Freedom Sunday.  These pastors addressed the candidates running for office in light of biblical truth, made specific recommendations concerning how a Christian should vote regarding the specific candidates, and then publicized their participation in Pulpit Freedom Sunday as the pastors in 2008 had done.

So we are three years into the Pulpit Initiative.  How has the IRS responded to the efforts of these pastors to restore their right to speak freely from their pulpits without IRS oversight?

Mostly, the IRS has remained silent.  In 2008, one pastor was audited by the IRS but the IRS dropped that audit soon after it began.  No other church has been audited by the IRS as a result of the church’s participation in Pulpit Freedom Sunday.

The IRS seems to have simply ignored Pulpit Freedom Sunday.  So what is going through the IRS’ collective mind on this issue?  Well, answering that question requires a level of prognostication and insight reserved for the Divine. But I think we can take some educated guesses as to what is going on.

First, the IRS may not be sure how to handle these pastors.  There are a couple of pieces of evidence that may suggest that the IRS is simply unorganized in its efforts to respond to Pulpit Freedom Sunday.  First, several pastors this year who sent their sermons to the IRS received basic form letters thanking them for their “referral” to the IRS of their situation.  The letters are normally the kind of letters the IRS sends out to anyone who refers a possible violation of the regulations. Here is what the letter said:

Dear Reverend___:

I am responding to your letter transmitting your sermon of September 26, 2010.

We maintain an ongoing examination program to ensure that tax exempt organizations continue to meet the requirements for tax-exempt status.  Whenever we receive information about an organization that raises questions about its continued exempt status or compliance with the tax laws, we forward the information to our EO Examinations office in Dallas to determine if it warrants an examination or other action.

The law, however, prohibits us from disclosing the existence of an examination, the results of any examination, or any conclusions from a completed examination (sec. 6103 of the Internal Revenue Code).  Therefore, I cannot comment what action, if any, we may take regarding the information you provided.

If you have additional information about these exempt organizations that you want to submit for our consideration, you should send it to (IRS address in Dallas given:

I hope this information is helpful.

Sincerely,

David Fish, Manager, Exempt Organization Guidance

This is basically a “brush-off” letter saying that the IRS is sending the pastor’s sermon to its Dallas office where they may or may not decide to take any action regarding the sermon.

Second, one pastor received a letter from the IRS’ manager of “Exempt Organizations Guidance” that basically restated the law.  The letter stated:

I am responding to your letter dated October 6, 2010, about political activities.  Under the Internal Revenue Code of 1986 (the Code) all section 501(c)(3) organizations, including churches and religious 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.  Violation of this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes.

The political campaign activity prohibition is not intended to restrict free expression on political matters by leaders of churchs or religious organizations speaking for themselves, as individuals.  Nor are leaders prohibited from speaking about important issues of public policy.  However for their organizations to remain tax exempt under section 501(c)(3), religious leaders cannot make partisan comments in official organization publications or at official church functions.  To avoid potential attribution of their comments outside of church functions and publications, religious leaders who speak or write in their individual capacity are encouraged to clearly indicate that their comments are personal and not intended to represent the views of the organization.

I have enclosed a copy of our Publication, tax guide for Churches and Religious Organizations.

I hope this information is helpful.  If you have any questions, please call….

This letter raises a number of interesting points, but overall I think it may demonstrate a disorganized IRS response to Pulpit Freedom Sunday.  Why did only one pastor get this letter out of the almost 100 who participated?  Why did the letter just restate the IRS regulations on political intervention of churches?  The pastor had sent the IRS a sermon that specifically addressed candidates for office in a Sunday sermon where the pastor was speaking, not in his individual capacity, but as the pastor of the church.  The letter this pastor received doesn’t seem to address the situation, and is just a basic informational letter.

So maybe the IRS’ response is just disorganized.  I’m sure that the IRS is not unique among large federal bureaucracies.

Still, maybe the IRS is still waiting for an opportune moment to respond to Pulpit Freedom Sunday.  As attorneys who practice in the field of federal tax exemption know, the IRS has not been auditing any churches for any reason for the last year or so since their regulations regarding the procedure they use to audit churches were found to violate the law.  The IRS has proposed new procedures to fix this problem.  I testified before the IRS in January, 2010, concerning those procedures and how they should be structured to protect the rights of pastors and churches.  But the regulations have never been finalized and, because of that, the IRS has not been auditing any churches.  The IRS has said publicly that it intends to finalize the church audit procedures in 2011, but no action has been taken on that front as of today.

Finally, maybe the IRS knows it cannot win this fight and so prefers not to fight at all.  There does seem to be a reluctance on the part of the IRS to allow a court challenge to the Johnson Amendment.  Some have privately suggested that the IRS knows it cannot win and so wants to avoid the fight altogether.

All in all, it is difficult to understand the IRS’ lack of response to Pulpit Freedom Sunday.  So where does that leave Pulpit Freedom Sunday?  Well, one thing is certain.  When ADF started the Pulpit Initiative, we committed to remain in it for the long haul and to continue Pulpit Freedom Sunday until it became clear, one way or another, that the IRS was not going to censor anything a pastor says from the pulpit.  If the IRS continues its lack of response, we will just continue to grow Pulpit Freedom Sunday year after year.  If the IRS finally decides to respond, then we will litigate to protect the rights of pastors to speak uncensored and free.

Whether the IRS responds, doesn’t respond, or chooses to wait to respond, we’re not going away.  Protecting the freedom of the pulpit is too important to stop this effort after a few short years.  The Johnson Amendment has been around for 56 years now.  It may take a few more years to see it rescinded, but we’re committed to staying the course until we do.

Pulpit Freedom Sunday will happen again this year on October 2, 2011.  If you know of a pastor interested in participating, they can find more information about the Pulpit Initiative on our website.  And stay tuned for information on how to join with ADF and the courageous pastors who have participated in Pulpit Freedom Sunday in the past.

This post originally appeared here.

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