Religious institutions of the United States literally have the freest speech in the country. Over the past year, we've seen a church that wouldn't allow interracial couples to attend their congregation. Likewise, we have heard about a church that refused to perform a marriage ceremony for a black couple. In our country we have a church whose URL address is godhatesfags.com; and the very same church protests our soldier’s funerals. Religious institutions can even undermine education and science with their own creationism museums. However, they are prohibited in one area, and that is in political speech.
So why can’t religious institutions address our political campaigns? The difference between a church and an individual is that churches have the protection of free speech and pay no taxes. This prohibition lies in the 501(c)(3) status. The law is that “in exchange for the receipt of tax-exempt status, Internal Revenue Code (“I.R.C.”) § 501(c)(3) absolutely prohibits churches and other tax-exempt organizations from campaigning for or against a candidate for public office.”
It is not just churches that cannot endorse a candidate, but any organization seeking tax-exempt status. They give up their political speech in exchange for money. But if you look at corporations and unions, they too have restrictions on their free speech. Corporations may not directly contribute to a candidate from their treasury funds or a business account. However, there is always a loophole. Both corporations and churches have the option to form a 501(c)(4) PAC and they can circumvent the restriction on their political speech and support a candidate. Even though they cannot directly support candidates in politics, they can indirectly show their support.
The 1954 law, pushed by Sen. Lyndon B. Johnson, could be seen as unconstitutional by many. But does it really hurt religious freedom? Perhaps if the IRS enforced it, it could be seen as a violation of free speech. This past Sunday, one thousand churches broke the law to participate in what is known as “Pulpit Freedom Sunday.” They endorsed a candidate from the churches platform, from ‘God’s’ platform. These ‘tax-evaders’ will more than likely never be brought to justice.
Though Pulpit Freedom Sunday is in its fifth year, yet churches have a long history of political involvement. Black Churches have a history of heavily influencing politics since the Civil Rights Movement, yet never had the threat of I.R.C. § 501(c)(3) being enforced. In fact a church’s 501(c)(3) status wasn't actually revoked until the 1990’s when The Church at Pierce Creek in Binghamton, NY took out ads in the Washington Times and USA Today criticizing Bill Clinton’s stance on abortion and homosexuality. An appellate court upheld the law then, saying it violated neither the Establishment Clause nor the Free Exercise Clause of the First Amendment. It was upheld on the grounds that for such burden to be unconstitutional, it must put "substantial pressure on an adherent to modify his behavior and to violate his beliefs". Yet we still have Pulpit Freedom Sundays of which videos of the political sermons are mailed to the IRS, yet the IRS doesn't dare enforce the law. If the IRS would enforce the rule, that would give churches yet another opportunity to pursue litigation and have the rule thrown out as unconstitutional.
The law was created by LBJ to prevent the church from shaping public policy. There is a danger in blindly taking a leader’s free speech as absolute, even more so when it’s a religious leader’s speech. However, if churches can spew rhetoric that rivals Al Qaeda and allow marriages to occur according to pre-Civil war standards, then doesn't that indirectly shape public policy?
On one hand I think churches should be able to be as free as they’d like with their speech, but on the other hand I wonder what it would be like to see churches like Westborough Baptist, among others prosecuted for tax evasion.