Oyez, Oyez!


Taxman.jpgAmericans United (AU), the intrepid watchdog of the Wall of Separation, has emailed a fund raising appeal to help it stop “the Religious Right” from “coercing religious leaders to break the law!” (Exclamation point not added) What’s up? Well, the conservative Alliance Defense Fund (ADF) has designated September 28 as a day for pastors to speak really politically from their pupits, such as by maybe endorsing a candidate. As Suzanne Sataline reported in the Wall Street Journal May 9, the ADF “is hoping at least one sermon will prompt the Internal Revenue Service to investigate, sparking a court battle that could get the tax provision declared unconstitutional. Alliance lawyers represent churches in disputes with the IRS over alleged partisan activity.”
The playacting character of this enterprise, on both sides, is impressive. First, it is beyond silly for the ADF to imply that it will take some concerted effort like this to interest the IRS in opening an investigation. All you need do is drop a line to AU, which more or less single-handedly has, over the past decade, pushed the IRS into its current serious enforcement mode regarding political activity by not-for-profit organizations. Hell, you don’t even need to do that. All you have to do is arrange for someone you know to write a letter of complaint to the IRS along with, say, a recording of, or a YouTube link to the offending sermon.
As to the question of the ban’s unconstitutionality, the Supreme Court has been there and done that twice, in 1972 and 2000. it’s settled law that, as Marc Stern points out in the forthcoming issue of Religion in the News, “a failure to subsidize speech does not burden speech under either the speech, religion, or due process clauses of the Constitution.” Carving out special exceptions for religious free exercise is not exactly the path the Court has been treading since its 1990 Smith decision.
Congress, of course, could change the law and permit not-for-profits, secular as well as religious, to engage in politics as much as they want. But that’s not about to happen. So the most that’s likely to happen is that some pastors will say some things that cross the line, some churches will provoke investigations, and some case will go forward that, in the fullness of time, the Roberts Court will decline to hear. And meanwhile, AU will raise some money.