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Barry, I am sympathetic with the frustration felt by many pastors who try to fully articulate their religious worldviews during the election season while having to censor themselves due to the IRS gag rule. As I have stated before, I believe that the best way to restore unfettered freedom of speech for pastors is to call on Congress to repeal the IRS restrictions on pastors’ speech.
Our law firm does not counsel our church clients to violate the 501(c)(3) rules; we do not have our first contact with them until after they have already been threatened by an IRS letter or a letter from a liberal “watchdog” organization. We represent churches and religious institutions in proceedings initiated by the IRS and, in doing so, raise statutory and constitutional arguments in their defense.
Without getting into privileged attorney-client discussions from the Pierce Creek case, I can say that we thought the court of appeals’ decision provided a blueprint for churches to express their beliefs in a political context through the formation of a separate 501(c)(4) entity. And I can’t say how the Supreme Court would rule in a future case if one gets there (although I doubt one will); it’s always tough to predict, especially without seeing how the law is being applied to the facts of a particular case. The uncertainty of litigation is another reason why a legislative repeal of the IRS gag rule is needed.
In addition, the IRS rules for political speech are different for churches and other religious non-profit organizations than they are for some non-profit organizations, such as 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.
Barry, this is not a conservative or liberal issue – all religious leaders should be able to speak freely about the intersection of faith and government if they desire to do so. Religious leaders of all faiths have a right to speak up for the unborn, the weak, the defenseless, and the unwanted, and they should be able to encourage their congregations to support candidates for office who do the same.
In addition, religious Americans have the same right to voice their opinions and support government actions that are consistent with their beliefs that is enjoyed by other Americans. It is simply offensive to imply that religious believers should just keep their ideas to themselves and let everyone else deal with elections and public policy. The next President and Congress will make countless important decisions on a broad range of issues that will affect every American, and religious leaders should be able to weigh in, if they so choose, on how various candidates will deal with those issues.