White Paper on IRS 'Gag' Order

2008-12-03T18:04:00.000-08:00

REVENUE CODE "GAG" ORDER AS APPLIED TO CHURCHES:

CONSTITUTIONAL "DOUBLE TROUBLE"

I. INTRODUCTION

Free speech--the hallmark of freedom in America--is denied to an important segment of our society. Churches and other charities jeopardize their tax-exempt status simply by engaging in the "wrong" type of speech. Their ability to influence legislation is sharply curtailed, and they are absolutely forbidden to endorse or oppose a candidate for political office. Political speech is at the heart of the First Amendment protection. First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 776-777 (1978). A major purpose of the First Amendment was to protect the free uninhibited discussion of governmental affairs, including candidates for office. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 346 (1995); Buckley v. Valeo, 424 U.S. 1, 14-15 (1976). But charities are speechless unless they go to the extra trouble of forming one or more separately incorporated entities to exercise their constitutional rights.

Corporate status is not the issue. Political discussion is essential to our democracy, and "this is no less true because the speech comes from a corporation." First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978). The source of speech--corporate, association, or individual--does not determine its inherent worth. Id. at 777. Moreover, the U.S. Supreme Court has acknowledged that "churches as much as secular bodies and private citizens" have the right to take positions on public issues and to advocate legal or constitutional positions. Walz v. Tax Commission, 397 U.S. 664 (1970).

The Revenue Act of 1934 added the following requirement for tax-exempt status under IRC § 501(c)(3): "no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation." In the case leading to this legislation, the Second Circuit rejected the exemption application of the American Birth Control League, because this organization distributed propaganda to the public and legislators urging the repeal of laws preventing birth control. Slee v. Commissioner, 42 F.2d 184 (2nd Cir. 1930); cited in Christian Echoes National Ministry, Inc. v. U.S., 470 F.2d 849, 854 (10th Cir. 1972). Just 20 years later, in 1954, Congress added the absolute prohibition against participation in political campaigns--an unconstitutional "gag" order that survives to this day. As applied to churches, the restrictions also violate the Free Exercise Clause and are thus doubly offensive to the Constitution.

II. THE IRS REGULATIONS PLACE AN UNREASONABLY HIGH COST ON THE RIGHT TO FREE SPEECH.

The legislature is "constitutionally disqualified" to determine the subjects on which persons may speak and the particular speakers who can address a subject. First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 784-785 (1978). The legislature may not direct business corporations to "stick to business" in their speech, nor may it suppress the speech of "other corporations, religious, charitable or civic." Id. at 785. Such selective silencing is especially suspect where it grants an advantage to one side of a debatable public issue. Id. at 785-786.

Tax-exempt entities allegedly have a way out. They can create separately incorporated entities--one under §501(c)(4) for lobbying, and another as a §527 "political action committee" (PAC) for political campaign involvement. But the government has no good reason to chill core political speech by erecting such expensive roadblocks.

A. The government has no rational--let alone compelling--interest in curtailing the rights of churches to speak about moral issues in the political sphere.

Political speech is entitled to the highest level of protection--the antithesis of the tax law's "gag" order:

When a law burdens core political speech, we apply "exacting scrutiny," and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest.

McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 348 (1995); see also FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2664 (2007) (law that burdens political speech must be narrowly tailored to achieve a compelling government interest)

Where there is doubt, the First Amendment requires courts "to err on the side protecting political speech rather than suppressing it." FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2659 (2007).

Preaching from the pulpit is also highly protected. Murdock v. Pennsylvania, 319 U.S. 105, 109 (1943). Even the dissent, while disputing protection for sales of religious goods, affirmed that the First Amendment applies to "prayer, mass, sermons, sacrament." Id. at 132 (emphasis added).

Churches are associations of religious believers who come together to worship and impact their world. Association in the political sphere facilitates effective advocacy. The First Amendment guards the right to associate with others to advance a common political cause. Buckley v. Valeo, 424 U.S. 1, 15 (1976). Association is a basic constitutional right closely linked to free speech. Like speech, the right is not absolute, but interference must be justified by a sufficiently important state interest. Id. at 24.

The tax laws at issue impose unreasonably harsh penalties on the exercise of basic constitutional freedoms: political speech, religious speech, and related associations. People may still lawfully speak and associate in churches, but is there any compelling reason to silence them in the political realm unless they forfeit the benefits of tax-exempt status? What is the rationale, and could it be accomplished in some less onerous manner?

One Tenth Circuit case several decades ago suggests that the tax regulations are needed to guarantee "that the wall separating church and state remain high and firm." Christian Echoes National Ministry, Inc. v. U.S., 470 F.2d 849, 857 (10th Cir. 1972). But the Supreme Court has suggested that it is the tax exemption that achieves this purpose:

The [property tax] exemption creates only a minimal and remote involvement between church and state and far less than taxation of churches. It restricts the fiscal relationship between church and state, and tends to complement and reinforce the desired separation insulating each from the other.

Walz v. Tax Commission, 397 U.S. 664, 676 (1970)

The tax regulations potentially increase the involvement between church and state by requiring the government to parse religious speech that intersects current political issues. If a church lost its exemption because of political speech, it would have to begin filing federal income tax returns and its involvement with the government would escalate.

A landmark Supreme Court case illustrates the type of compelling interest that might justify denial of tax-exempt status. Bob Jones University was denied exemption because of the school's racially discriminatory policies. The Court held that racial discrimination in education is so contrary to public policy that the university could not be viewed as a "charitable" entity conferring a public benefit. Bob Jones University v. United States, 461 U.S. 574, 579 (1983). The government had a compelling interest in eliminating such discrimination. But there is no public policy that precludes churches from speaking out on political issues. On the contrary, the availability of separate § 501(c)(4) and PAC entities is evidence that churches have a constitutional right to such speech.

An interesting federal appellate case balances the interests of military chaplains in determining the content of their sermons against several government interests, including a politically-disinterested military, good order and discipline, and the service members' right to participate in the political process. Rigdon v. Perry, 962 F.Supp. 150, 162 (D.D.C. 1997). Although these interests were admittedly compelling, they were outweighed by the chaplains' right to preach. Id. at 162. Similarly, churches and pastors must be free to speak and preach without government interference, even about current political issues, legislation, and candidates. Moreover, the anti-lobbying restrictions at issue in Rigdon were impermissible content regulations because they prohibited "a particular class of speech--speech in which a chaplain urges a congregant to contact Congress on pending legislation." Id. at 164, n. 14.

Charitable contributions are tax-deductible, but political contributions are not. This is a possible basis for the regulations. But even if the government has a reasonable interest in assuring compliance with the laws governing contributions, is it justified in regulating pure speech, where no expenditures are involved? And if there are expenditures, is this the least restrictive means of accomplishing the state's interest?

B. Compliance with charitable contribution laws could be achieved by restricting the right of churches to give money to political candidates or causes, without restricting their right to speak on those issues.

A small church in New York generated considerable litigation in the early 1990's when it paid for two full-page ads urging Christians to vote against Clinton because of his stand on moral issues. The ad included the following:

This advertisement was co-sponsored by the Church at Pierce Creek, Daniel J. Little, Senior Pastor, and by churches and concerned Christians nationwide. Tax-deductible donations for this advertisement gladly accepted. Make donations to: The Church at Pierce Creek. [mailing address].

Branch Ministries v. Internal Revenue Service, 211 F.3d 137, 140 (2000) (emphasis added)

This case highlights a key point. The Church at Pierce Creek advertised the tax-deductibility of donations for its ad. Since political contributions are not deductible, this fundraising appeal allowed an end-run around the tax laws. Deductible charitable contributions were used to fund non-deductible political activities.

But are the IRS regulations narrowly tailored to achieve the government's valid interest in tax law compliance? Lobbying and campaign intervention sometimes require money, but not always. Where "speech itself" is involved, and especially where that speech is "related to the process of governing," the government must show that its regulation is carefully drafted "to avoid unnecessary abridgment." First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 786 (1978).

Courts have repeatedly justified the tax regulations as a means to avoid government subsidy of political activities:

Petitioners are not being denied a tax deduction because they engage in constitutionally protected activities, but are simply being required to pay for those activities entirely out of their own pockets, as everyone else engaging in similar activities is required to do under the provisions of the Internal Revenue Code.

Cammarano v. United States, 358 U.S. 498, 513 (1959)

The limitations in Section 501(c) (3) stem from the Congressional policy that the United States Treasury should be neutral in political affairs and that substantial activities directed to attempts to influence legislation or affect a political campaign should not be subsidized.

Christian Echoes National Ministry, Inc. v. U.S., 470 F.2d 849, 854 (10th Cir. 1972) (emphasis in original)

Both tax exemptions and tax deductibility are a form of subsidy that is administered through the tax system.... Congress chose not to subsidize lobbying as extensively as it chose to subsidize other activities that nonprofit organizations undertake to promote the public welfare.

Regan v. Taxation With Representation, 461 U.S. 540, 544 (1983)

It is true that the government may choose to subsidize one particular viewpoint but not another. Id. at 548-549; Commissioner v. Sullivan, 356 U.S. 27, 28 (1958). But these regulations reach far beyond the avoidance of subsidies. Even if no funds are expended, churches are absolutely precluded from merely speaking to endorse/oppose political candidates, and they are severely restricted in attempts to influence legislation.

Tax-exempt organizations do have the option to form separately incorporated § 501(c)(4) affiliates to exercise their free speech rights while ensuring that tax-deductible contributions do not finance substantial lobbying. Regan v. Taxation With Representation, 461 U.S. 540, 553 (1983). They must maintain sufficient records to show that such contributions are not used to pay for lobbying. Supposedly this is "not unduly burdensome." Id. at 544, n. 6. The U.S. Supreme Court admits that if the IRS attempted to limit the ability of charities to control such affiliates, "the First Amendment problems would be insurmountable." Id. at 553.

But smaller churches may not have the resources to form and maintain separate corporations in order to exercise their fundamental constitutional rights to speak about the political issues and candidates that impact their most cherished religious beliefs. Current regulations extend even to a pastor preaching in the pulpit about candidates and laws. The government could properly regulate a church's expenditure of funds without restricting the right to merely speak where no finances are involved. If expenses are necessary, these could be paid privately without the burden of a separate corporation. For example, the Branch Ministries ad could have been funded directly by private individuals rather than using deductible contributions. Its accompanying statement might read like this:

This advertisement was co-sponsored by the Church at Pierce Creek, Daniel J. Little, Senior Pastor, and by churches and concerned Christians nationwide. Donations for this advertisement are gladly accepted, but they are not tax-deductible. If you are interested in making a donation, please contact ____________ for details.

C. The vague IRS guidelines chill protected speech.

Even the fund raising activities of charitable organizations "involve a variety of speech interests" protected by the First Amendment, including the "propagation of views and ideas, and the advocacy of causes." Schaumberg v. Citizens for Better Environment, 444 U.S. 620, 632 (1980). Charitable solicitation is "characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues." Id. at 632. If fundraising enjoys such broad protection for political speech, then surely the First Amendment protects other expression by charitable groups. But the tax regulations sweep far and wide, chilling a broad range of core political speech.

The U.S. Supreme Court has held that "the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application." Buckley v. Valeo, 424 U.S. 1, 42 (1976). Vague laws either trap the uninformed or inhibit protected expression by inducing speakers to steer clear of the forbidden speech zone. The tax regulations at issue are a maze of confusion and uncertainty. Churches who cannot afford legal counsel may find themselves in court if they are courageous enough to speak. Otherwise, some combination of fear and ignorance may lead to unnecessary silence.

Churches may not contribute to a political campaign or raise funds for a candidate. That much is straightforward and encourages compliance with charitable contribution laws. However, other rules are much fuzzier and tend to muzzle a great deal of protected speech:

1. Churches may not make public statements, in an official publication or verbally at a church function, to endorse or oppose a candidate for political office. Individual pastors and church employees can make such statements, but only if they clearly disclose that they speak solely in their individual capacities and not as church representatives. These restrictions implicate pure speech and could easily trap church employees.

2. A church may not allow only one candidate for an office to address the congregation, except in a properly disclosed "non-candidate" capacity with no reference to the candidacy. A church may provide a forum for all candidates to address its congregation, provided there is an appropriate disclaimer prior to each candidate's speech, and no endorsement of any candidate. Again, pure speech is prohibited. The rules discourage allowing any candidate to speak, because the church must either carefully avoid reference to the candidacy and formulate some "other capacity" to introduce the speaker, or be forced to include candidates whose views conflict with the church's religious convictions.

3. A church may not endorse or oppose a political candidate, and may not sponsor an advertisement urging voters to vote for/against a particular candidate. Church employees may not engage in campaign activities within the context of their employment. Churches must "disavow" the campaign activities of persons who appear to be acting with the church's authorization. Considerable pure speech is prohibited. An advertisement could be paid for by private citizens and not from donated funds. The requirement to "disavow" could create confusion about the church's views on important issues and also appears to constitute "compelled speech" in violation of the First Amendment.

4. Churches may distribute a compilation of the voting records Congressmen on a wide range of issues, but may not include editorial opinion or structure the guide to imply approval or disapproval of any congressman or his/her voting record. Voter guides may be distributed, provided they do not demonstrate a bias on certain issues. How will a church know whether its guide is "structured" to reflect approval/disapproval or bias? These restrictions also stifle pure speech.

The "no substantial lobbying" criteria for exempt status is another area where unnecessary complexity chills expression. The test is not a set percentage, but a balancing act that considers all of the organization's objectives and circumstances. Christian Echoes National Ministry, Inc. v. U.S., 470 F.2d 849, 855 (10th Cir. 1972). In Christian Echoes, an essential part of the program was "to promote desirable government policies consistent with its objectives through legislation." Id. at 855. However, where does issue advocacy end and lobbying begin? In drawing the line between express candidate advocacy, and ads concerning pending legislative or policy issues, the Supreme Court rejected an intent-based test for as-applied challenges, because that would "chill core political speech." FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2665-2666 (2007). Instead, the Court held that "an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." Id. at 2667. This clear-cut reasoning contrasts with the muddled tax regulations that deter churches from speaking on matters where religion and politics intersect.

The power to regulate a fundamental freedom must be exercised carefully so as not to induly infringe it. A regulation must be narrowly drawn and construed so it does not punish protected expression. Gooding v. Wilson, 405 U.S. 518, 522 (1972); Cantwell v. Connecticut, 310 U.S. 296, 304 (1940). In order to strike a law on the grounds that it is facially overbroad, there must be a realistic danger that the law will significantly compromise the First Amendment rights of parties not before the court. Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984). The political restrictions on church are not narrowly drawn, and they pose a serious threat to the free speech rights of churches all over the country, many of which cannot afford to litigate.

D. The loss of tax-exempt status and monetary coercion--fines, taxes, and fees--are penalties that constitute prior restraints on free speech.

The First Amendment guarantees the right to "discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment." First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978); FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2666 (2007). Prior restraints on free speech are "the most serious and the least tolerable infringement on First Amendment rights." Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976). Any such restraint comes before a court "bearing a heavy presumption against its constitutional validity." United States v. Washington Post Co., 403 U.S. 713, 714 (1971).

The tax regulations at issue restrain the ability of tax-exempt organizations to participate in public discussion and threaten severe penalties for political speech.

It is well established that the government cannot exact a tax on the exercise of a constitutional right.

The exaction of a tax as a condition to the exercise of the great liberties guaranteed by the First Amendment is as obnoxious [citations omitted] as the imposition of a censorship or a previous restraint.

Follett v. Town of McCormick, S.C., 321 U.S. 573, 577 (1943)

Such a tax acts as a prior restraint that tends to suppress the exercise of basic rights. Id. at 575. The power to tax a constitutional privilege "is the power to control or suppress its enjoyment...." Murdock v. Pennsylvania, 319 U.S. 105, 112 (1943). Moreover, as applied to the practices of a religious organization, the cost may be so great as to "deprive it of the resources necessary for its maintenance." Id. at 112. Free speech, like religion, can be unconstitutionally penalized by the government's taxing power. Speiser v. Randall, 357 U.S. 513, 518 (1958).

At the same time, the government is not required to subsidize the exercise of fundamental freedoms, including the activities of religious organizations. Follett v. Town of McCormick, S.C., 321 U.S. 573, 577-578 (1943). A legislature's decision not to subsidize a fundamental right is not an infringement of the right. Regan v. Taxation With Representation, 461 U.S. 540, 540 (1983). Congress has chosen not to subsidize the lobbying activities of exempt organizations as extensively as their other activities. Id. at 544. Moreover, tax exemptions have been deemed matters of "legislative grace," placing the burden on the taxpayer to show entitlement to exemption. Christian Echoes National Ministry, Inc. v. U.S., 470 F.2d 849, 854 (10th Cir. 1972); Dickinson v. United States, 346 U.S. 389 (1953).

But does tax-exempt status really constitute a subsidy? There is conflicting authority, with plausible arguments on both sides. In the context of a sales tax exemption available only for religious publications (struck down on Establishment Clause grounds), the U.S. Supreme Court said "yes":

Every tax exemption constitutes a subsidy that affects nonqualifying taxpayers, forcing them to become indirect and vicarious donors.

Texas Monthly, 489 U.S. 1, 14 (1989)

But the Court, in upholding a property tax exemption available to a wide range of exempt organizations, held that:

The grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state. There is no genuine nexus between tax exemption and establishment of religion.

Walz v. Tax Commission, 397 U.S. 664, 676 (1970)

Either way, Congress has chosen to grant tax-exempt status to religious and other charitable organizations. It is unconstitutional to deny that benefit as a condition to the exercise of free speech or religion. The government may not want to indirectly subsidize political activities through deductible contributions, but it should not deny exempt status for pure speech that involves little or no outlay of funds.

There is substantial authority for the conclusion that an otherwise avavilable government benefit may not be denied as a condition to the exercise of a fundamental right. "...conditions upon public benefits cannot be sustained if they so operate, whatever their purpose, as to inhibit or deter the exercise of First Amendment freedoms." Sherbert v. Verner, 374 U.S. 398, 405 (1963). Liberties of both speech and religion are infringed by placing conditions on their exercise. Id. at 404. A person may not be compelled to choose between exercising a First Amendment freedom and an otherwise available government benefit. Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 717 (1981). Where a tax exemption is denied to those who engage in particular forms of speech, the effect is to coerce them into refraining from the forbidden speech. Speiser v. Randall, 357 U.S. 513, 519 (1958). This deterrent effect imposes a penalty on protected expression. Id. at 518.

The tax regulations on exempt organizations penalize them for engaging in protected expression--core political speech. Loss of exempt status leads to imposition of income tax and/or loss of revenue because donors cannot deduct their contributions. The price of free speech may be so high that it would threaten the very existence of many organizations. These onerous penalties have a chilling impact on free speech and religion, silencing an important segment of the community.

III. THE IRS REGULATIONS INFRINGE THE RIGHT TO FREE EXERCISE OF RELIGION.

The Free Exercise Clause is offended where a government regulation interferes with religious beliefs and practices. Walz v. Tax Commission, 397 U.S. 664, 699 (1970). Current tax regulations stifle religious expression that dares to address moral issues in the political realm.

A. These political speech restrictions are part of a larger phenomenon: "purging the public square" of religious expression.

Religious people apply their convictions and moral values to all spheres of life. Although some religions teach withdrawal from the world, many faiths mandate active involvement. However, courts have increasingly compartmentalized religion by removing it from public life. Prayer and Bible reading are excluded from public schools, and monuments of the Ten Commandments are rarely allowed on public property. Even the common "In God We Trust" on our currency is under attack. The so-called "separation of church and state," intended to protect religion from state interference, now suppresses religious expression. It is no wonder that hardly anyone dares to challenge the tax law restrictions on the political speech of churches.

B. The IRS regulations impose a substantial burden on religious mandates to participate in society and challenge immoral laws.

Religious beliefs intersect some of the most pressing political issues of our day, and adherents cannot remain silent in good conscience. In Rigdon, a federal anti-lobbying statute precluded military chaplains from urging congregants to contact Congress to vote in favor of the Partial Birth Abortion Act. Several chaplains of different faiths challenged the statute based on free speech, free exercise, and the Religious Freedom Restoration Act. Rigdon v. Perry, 962 F.Supp. 150 (D.D.C. 1997). These plaintiffs all maintained that their faiths required them to act. Father Rigdon testified that the "Air Force memorandum issued in June created a conflict of conscience between the demands of [his] faith and [his] desire to conform to military directives." Id. at 153-154. Similarly a Jewish Rabbi stated that "it is impossible, indeed incoherent, to separate moral teachings from Judaism. And when a law is immoral [he] believe[s] that as a Rabbi [he] must not remain silent." Id. at 154. Moreover, the Court could not constitutionally determine whether urging congregants to contact Congress about the pending legislation was an "important component" of any particular faith. Id. at 161.

One of the problems in Branch Ministries was the failure to allege a "substantial burden" on religion. The Church at Pierce Creek did "not maintain that a withdrawal from electoral politics would violate its beliefs." Branch Ministries v. Internal Revenue Service, 211 F.3d 137, 142 (2000). Instead, "the sole effect of the loss of the tax exemption [would] be to decrease the amount of money available to the Church for its religious practices." Id. at 142. The Murdock dissent criticized the majority for striking down a license tax for door-to-door sales of religious books, because there was no claim that the tax would restrict religious activities. Murdock v. Pennsylvania, 319 U.S. 105, 134-135 (1943). Supreme Court decisions have consistently held that refusal to grant tax benefits does not offend the Free Exercise Clause where religious groups are not prevented from observing their religious tenets. Texas Monthly, 489 U.S. 1, 24 (1989).

But the tax regulations do prevent many churches and congregants from observing their religious convictions. As the Court explained in Rigdon:

If, after an emotional sermon about the "abomination" of partial birth abortion, congregants were to rise from the pews and ask Father Rigdon or Rabbi Kaye what they can do to stop this practice, these chaplains would have to respond, "I cannot say." This muzzling of religious guidance is the direct result of the defendants' viewpoint discrimination.

Rigdon v. Perry, 962 F.Supp. 150, 164 (D.D.C. 1997)

A burden on the free exercise of religion may occur through indirect compulsion when the state conditions receipt of an important benefit on refraining from conduct mandated by religious faith, thus placing substantial pressure on believers to violate their beliefs. Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 717-718 (1981). That is exactly what occurs when IRS threatens churches with the loss of exempt status if they dare to offer religious guidance on moral-political issues and urge believers to take action.

C. Enforcing the IRS regulations entangles the government in parsing the religious speech of pastors in the pulpit.

Courts are normally reluctant to interfere with the internal affairs of churches. They will not, for example, interfere with the ordination and ministerial employment decisions of a church. The Establishment Clause requires that government not be come "excessively entangled" with religion. Lemon v. Kurtzman, 403 U.S. 602, 613 (1971). This protects against the "active involvement of the sovereign in religious activity." Id. at 612, 623; Walz v. Tax Commission, 397 U.S. 664, 668 (1970). But these tax regulations are so far reaching that they require the government to evaluate even the preaching of a pastor to determine the nature of the speech. A court should not assume the role of drawing fine distinctions between speech that is purely religious and religious speech with political overtones. Rigdon v. Perry, 962 F.Supp. 150, 164 (D.D.C. 1997).

The District Court in Christian Echoes (overruled on appeal) had it right. That court held that the First Amendment forbids the government and courts from deciding whether the activities of the ministry were religious or political, and if political, whether substantial. Christian Echoes National Ministry, Inc. v. U.S., 470 F.2d 849, 856 (10th Cir. 1972). The organization published numerous articles attempting to influence legislation by appealing to the public to react to certain issues. Id. at 855. The First Amendment should protect--not penalize--religious organizations that inform and guide their followers on public moral issues.

CONCLUSION

Tax-exempt status is readily available to churches "but for" the oppressive tax law restrictions on free speech, free exercise, and association. Unlike other charities, churches are not even required to complete an exemption application (IRS Form 1023) or file an annual information return (IRS Form 990). The IRS political restrictions disrupt the church's shelter from government intrusion.

Churches and people of faith hold strong positions on public issues: "...religious values pervade the fabric of our national life." Lemon v. Kurtzman, 403 U.S. 602, 623 (1971). Pastors, congregants, and the churches they represent all have the fundamental right not only to religion, but to apply their faith through active participation in the political process. Current tax regulations effectively chill these basic rights by placing an exhorbitant price on their exercise.

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