There is actually an IRS training manual
which suggests that even when a pastor speaks from the pulpit, if the endorsement
is labeled personal, it will not automatically cost the church its exemption. In
any event I am hard pressed to see why members of the clergy are differently situated
that the President of People For or the ACLU or the Federalist Society who face
identical restrictions. Even before Smith the Court had held that the Free
Speech rights of churches were not greater than those of secular groups. Minnesota
State Fair case).
Marc Stern
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Friday, June 04, 2004 10:22
AM
To: Law
& Religion issues for Law Academics
Subject: Re: Gay Activists
Threaten Church Tax-Exempt Status
I was making
only Marty's point (ii). As to his point (i), If the church wants to buy
media time for political ads, it can do that through the 501(c)(4) affiliate as
well as anyone else.
But if the
pastor, or the rabbi, or the archbishop, wants to urge his faithful to support
the candidate that is more willing to feed the hungry, it is not remotely the
same to have that message come from Joe Doaks at the 501(c)(4) affiliate.
And if the religious leader wants to speak on this issue from the pulpit, or in
a pastoral letter, it doesn't help to put him on the payroll of the 501(c)(4)
affiliate for 10% of his time. I think that lawyers for churches -- at
least those who pay attention to the periodic warnings from the IRS on this
issue -- believe that if the religious leader of the church speaks, his speech
will be attributed to the church itself and not to any affiliate. The
bottom line is that the rule censors pastors in the pulpit, and that is a
constitutional problem.
At 02:12 PM 6/3/2004 -0400, you wrote:
I'm a bit unclear on one part of Doug's post. Are you
saying, Doug,
(i)
that the church is differently situated because, unlike secular nonprofits, it
can't (or realistically won't be able to) set up an affiliate through which to
engage in political speech (if so, why is that true?), or, alternatively,
(ii)
that for some reason the partisan political speech of the spiritual leader is
qualitatively "very different" -- in a way that should matter for
statutory or constitutional analysis? -- from the partisan political speech of
her nonreligious counterpart?
- Original Message -
From: Douglas
Laycock
To: Law
& Religion issues for Law Academics
Sent: Thursday, June 03, 2004 12:10 PM
Subject: RE: Gay Activists Threaten Church Tax-Exempt
Status
I agree
that the absolute limit on candidate advocacy is a problem. Of course it
is a problem for all other non-profits as well, and the usual solution is to
set up a political affiliate. The one other way in which churches are
differently situated is the speech of the clergy. When the church
addresses a moral issue, including the positions of competing candidates on
that moral issue, it is very different for the spiritual leader to make the
statement versus the head of the 501(c)(4) affiliate making the
statement. I agree with Marty's analysis of current law, but the restriction
on the speech of the clergy is a constitutional problem.
At 10:52 AM 6/3/2004 -0400, you wrote:
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The
"susbtantial" limit on lobbying does provide ample breathing room for
most religious institutions, including any bona fide house of worship I could
imagine. And there's probably no limit on religious groups' advocacy re
moral issues, where the advocacy isn't also lobbying.
But there's no such
latitude re advocacy for candidates, and we are, after all, in an election
year. So I expect that the candidate part of the limit will be asserted
frequently in the months to come, and it could well represent a meaningful
threat.
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]]On
Behalf Of marc stern
Sent: Thursday, June 03, 2004 9:44
AM
To: 'Law
& Religion issues for Law Academics'
Subject: RE: Gay Activists Threaten Church Tax-Exempt
Status
There really is nothing
to the threat. Churches are free to take stands on political issues provided
they do not spend a substantial amount on these activities. The late Dean Kelly
obtained an internal IRS memo which indicted that insubstantial was between
5-20% of an organization s budget. The document was informal and would not bind
the IRS, but it describes a fairly safe harbor. Non-church groups can opt for a
different and more predictable set of rules, but at the behest of churches
which then insisted that the governme
