The atheist Freedom From Religion Foundation is demanding – again – that the Internal Revenue Service revoke the tax-exempt status of churches whose ministers express an opinion about a moral issue or a candidate’s position that is deemed political.
The lawsuit against President Trump and IRS Director John Koskinen says any consequent harm to churches is of no concern.
But several pastors and other organizations that would be affected have filed a motion to have the case dismissed.
That request comes from Charles Moodie, Koua Vang, Patrick Malone and Holy Cross Anglican Church, whose arguments were submitted to the U.S. District Court in Wisconsin by the Becket Fund.
“Plaintiff FFRF asks this court to issue an injunction requiring the IRS to penalize internal church teaching, including the preaching of proposed intervenors Rev. Charlies Moodie, Pastor Koua Vang, and Father Patrick Malone to their church congregations, … But since 1871, the United States Supreme Court has repeatedly confirmed that the Religion Clauses of the First Amendment prevent the government from interfering with internal church affairs,” the new brief explains.
In fact, the demand from FFRF itself would undoubtedly violate the Constitution, the brief contends.
“There is a reason that the IRS has never actually enforced its regulations against internal church speech: because it knows it won’t hold up against a First Amendment defense. Even in the context of public governmental religious speech, courts have been clear that ‘government not seek to define permissible categories of religious speech.'”
FFRF tried the same lawsuit two years ago.
At that time, the case ended up being dismissed voluntarily under circumstances that were less than clear.
The IRS withheld more than 10,000 pages of information about its procedures for investigating churches, and another 2,000 pages that were released under a federal Freedom of Information Act case were blacked out.
The Alliance Defending Freedom at that time suggested there needed to be an explanation of what happened in the original FFRF lawsuit and of the IRS’ procedures regarding churches.
“The IRS is not above the law, and Americans deserve to know the truth about the agency’s secret deals with activists,” said ADF Legal Counsel Christiana Holcomb at the time. “The IRS has a legal obligation to explain why it is hiding things or else produce the documents. Its ongoing refusal to follow the law is absurd, particularly since much of we are asking for is information that the IRS has already provided voluntarily to Freedom From Religion Foundation.”
The case arose when it was revealed through the resolution of a lawsuit brought by the Freedom from Religion Foundation that the IRS wasn’t enforcing electioneering restrictions against churches. The case then was dismissed.
At that point, the FFRF claimed the IRS “had put in place ‘protocols to enforce its own anti-electioneering provisions’ and had ‘adopted procedures for reviewing, evaluating and determining whether to initiate church investigations,'” ADF said.
So ADF wanted to know what the protocols are.
“The existence of the secret procedures became known through the agency’s settlement of an atheist group’s lawsuit,” ADF said, citing the settlement of the case FFRF v. Koskinen.
At the time, the IRS “assured the atheist group that it had adopted new protocols and procedures for church investigations in order to end the lawsuit,” ADF said.
ADF had asked that the federal agency release the information that apparently already had been handed over to FFRF.
FFRF boasted of the new IRS plans after the resolution of its own lawsuit. It specifically mentioned ADF’s “Pulpit Freedom” program, and its case asked the IRS to enforce the Johnson Amendment of 1954, which purportedly bars tax-exempt organizations from endorsing or opposing political candidates.
ADF said the amendment authorizes the IRS to regulate sermons and “requires churches to give up their constitutionally protected freedom of speech in order to retain their tax-exempt status.”
ADF’s “Pulpit Freedom” program is designed to encourage the IRS to enforce the Johnson Amendment, prompting a court challenge that could result in the amendment being declared unconstitutional.
The new motion in FFRF’s new case simply asks that the case be thrown out.
Moodie told the court neither the government nor the FFRF should be in the business of editing sermons.
“Moodie is an inner-city Chicago pastor who ministers in a neighborhood plagued by violence, drugs and poverty. He preaches about social and political issues that affect his congregation, including protecting the most vulnerable in society. But for decades, relying on a 1954 law known as the Johnson Amendment, the IRS has ordered churches to censor their sermons on certain issues, and threatened massive punishment if churches don’t toe the line. Legal scholars on all sides of the political spectrum have called the IRS’s intrusive rule ‘indefensible’ and ‘one of the most sweeping violations of the First Amendment in American history,'” the Becket filing said.
In May, President Trump issued an executive order stating that the IRS should not enforce the rules. FFRF then filed its lawsuit to demand that the IRS start enforcing the pulpit speech restrictions despite the executive order.
“Pastors, priests, imams, and rabbis shouldn’t have to get the IRS’ permission just to preach candidly to their congregations,” said Daniel Blomberg, legal counsel at Becket. “IRS sermon censorship is bad for the church and it’s bad for the state. This is one place where a little more separation of church and state would go a long way.”
The new filing seeking that the case be dismissed notes that the constitutional protection for churches’ autonomy “is so powerful that the churches’ and the government’s interest in preserving church autonomy need not be balanced against competing societal interest such as preventing employment discrimination.”
It continued: “Here, there is little doubt that FFRF’s requested injunction against the churches and other houses of worship would violate both the Free Exercise Clause and the Establishment Clause by requiring the government to interfere with the internal affairs of the churches. The content of a sermon preached from the pulpit by a minister to his or her congregation is both a ‘matter of church government as well as of faith and doctrine.'”
In fact, there is “not a single reported case upholding the imposition of such restrictions against churches. And for good reason: granting FFRF’s request here would be ‘forcefully unconstitutional – one of the most sweeping violations of the First Amendment in American history.'”
While the IRS has “extremely explicit regulations” on the issue, it has never yet enforced them.
“Refusing to enforce its own regulations also means that the IRS has not had to defend them,” the filing said.