Janice A. Oser, Esq.

Pastors participating in an annual project tagged “Pulpit Freedom Sunday” have been challenging the I.R.S. to come and get 'em since the first Pulpit Freedom Sunday in May 2008. In that year, the Reverend James David Manning, who is black, posted a sermon on the Web site of his church, the Atlah World Ministries, calling then Senator Barack Obama a pimp and his mother white trash.

Since then, participating pastors have sent tapes of their sermons on Pulpit Freedom Sunday to the I.R.S., challenging the agency to try to take away their tax exemption. The federal tax exemption is conditioned on their refraining from giving support to political candidates.

So far the I.R.S. hasn’t taken the bait in any big, public, way, although it has started investigations. Typically, such investigations are based on complaints from individuals or groups, such as the group Americans United, which filed a complaint against Mr. Manning.

In July of this year, a group of 13 ministers in Ohio wrote a letter to Treasury Secretary Timothy Geithner to express their concern about “the current inability of the I.R.S. to enforce the federal tax laws applicable to churches,” according to an article in the New York Times (The Political Pulpit,” by Stephanie Strom, September 30, 2011).

Supporters of the politicking pastors are equally vexed at what is perceived to be the I.R.S.'s inaction. According to the Times article, none of the pastors participating in previous Pulpit Freedom Sundays received any response from the agency other than a form letter thanking them for the tapes. A senior legal counsel for the Alliance Defense Fund, a legal alliance of ministries that initiated the pulpit Sunday project, is quoted as saying, “It’s frustrating. The law is on the books but they don’t enforce it, leaving churches in limbo.”

The law in question was enacted in 1954 to implement legislation sponsored by then Senator Lyndon Baines Johnson. It denies the federal tax exemption to all charitable organizations that participate directly or indirectly in a political candidate’s campaign. Johnson was battling at the time with two nonprofit groups that were calling him a closet Communist, and the application of the law to churches may have been an unintended consequence.

The argument is made that denying the federal tax exemption to pastors who provide support in their sermons to political candidates violates their constitutional right to freedom of speech. The U.S. Supreme Court has stated, however, that exemption from tax is a privilege and not a right.

Opponents of electioneering from the pulpit have been known to argue that exempting religious organizations from taxes provides an unconstitutional subsidy to religion, in violation of the prohibition in the First Amendment of any law “respecting an establishment of religion.” There is also Supreme Court precedent, however, for the constitutionality of a tax exemption for religious organizations.

Both the proponents of Pulpit Freedom Sundays and their opponents have expressed impatience with what they see as the failure of the I.R.S. to take action. If or when either side of this debate succeeds in goading the I.R.S. to make a court case of politicking in the pulpit, the case would undoubtedly reach the Supreme Court.

In the Citizens Union case, the U.S. Supreme Court found in 2010 that corporations, whether for profit or not, were “persons” for purposes of the First Amendment, and gave them the go-head to exercise their right to freedom of speech by funding electioneering broadcasts.

It is conceivable that the Court could find it unconstitutional to deprive pastors of their tax exemption if they exercise their right to freedom of speech by giving support in their sermons to political candidates.

Further, although the Court has stated that taxes do not necessarily burden the free exercise of religion, it is conceivable that the Court could rule that denying these pastors their federal tax exemption would also be to infringe on their constitutional right to free exercise of their religion. (The mind boggles at the prospect of gated communities, for instance, organizing themselves as religions and thereby claiming tax-exempt status.)

In any event, if the politicking pastors and their opponents do succeed in getting the I.R.S. into court, the losing side in an eventual Supreme Court case might have cause to ponder the wisdom of the saying, “Be careful what you wish for.”