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Is the IRS Failing to Uphold the Separation of Church and State?

The Freedom From Religion Foundation claims churches engaging in electioneering are getting a free pass on audits.

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The Freedom From Religion Foundation (FFRF) is suing the IRS because it says the IRS has suspended auditing thousands of churches and is failing to enforce a ban on church electioneering.

The suit, filed Wednesday with the U.S. District Court for the Western District of Wisconsin, claims that there is evidence the IRS is not doing enough to prevent churches and religious institutions from directly and “blatantly” engaging in political messaging which, the suit says, is a violation of the Establishment Clause of the First Amendment and, interestingly, of the FFRF’s equal protection rights.

As evidence for this, the FFRF points to remarks made by Russel Renwicks of the IRS’ Tax-Exempt and Government Entities division, wherein Renwicks said the IRS has suspended tax audits of churches.

“We are holding any potential church audits in abeyance,” Renwicks is quoted as saying by Bloomberg in an October piece. The piece goes on to clarify that there may be a “few” cases of “egregious” electioneering but “even those are in abeyance until IRS finalizes rules.”

An IRS spokesperson has since said that Renwicks misspoke.

“The IRS continues to run a balanced program that follows up on potential non-compliance, while ensuring the appropriate oversight and review to determine that compliance activities are necessary and appropriate,” said spokesman Dean Patterson.

The FFRF says it is unconvinced and is prepared to prove that the IRS may not have audited churches since 2009. It points to a number of very recent cases to further support the suit.

The group charges that evangelist Billy Graham’s ministry engaged in blatant electioneering when it took out a number of advertisements urging fellow believers to vote with biblical principals in mind. Just days before, Graham and his son had met with the Romney campaign to discuss said principles.

Other cases include that of Green Bay Bishop David L. Ricken who wrote to churchgoers warning that if they voted for candidates who supported abortion or marriage equality, they “could be morally ‘complicit’ with these choices which are intrinsically evil.” He went on to say, “This could put your own soul in jeopardy.”

The FFRF also sent a letter over Bishop Robert Morlino of Madison, Wis., who reportedly wrote in a Nov. 1 article that there were some “non-negotiable” political topics. He said, “No Catholic may, in good conscience, vote for ‘pro-choice’ candidates [or] . . . for candidates who promote ‘same-sex marriage.’”

Yet in this case and several others, the IRS has failed to respond, even so far as investigating the alleged acts.

The IRS’ perceived failure to enforce the electioneering ban amounts to giving churches and religious organizations preferential treatment over other non tax-exempt groups like the FFRF, the suit argues.

“Churches and religious organizations obtain a significant benefit as a result of being non-exempt from income taxation, while also being able to preferentially engage in electioneering, which is something secular tax-exempt organizations cannot do.”

The FFRF contends that as many as 1,500 clergy may have also violated electioneering restrictions on Sunday, October 7, 2012, when they held ”Pulpit Freedom Sunday.”

However, a lawsuit is precisely what was wanted by the group behind the event, the Alliance Defending Freedom (which, before re-branding, used to be the notorious anti-gay, anti women’s rights Alliance Defense Fund).

Reports the Washington Times:

Erik Stanley, legal counsel for the Alliance Defending Freedom, said a lawsuit is exactly what his group was looking for when it launched the Pulpit Freedom Sunday initiative in 2008 to challenge the Johnson Amendment, the part of the tax code that requires nonprofit groups not to engage in political speech as a condition of that status.

Still, he doesn’t think this particular case will go far.

“I think the lawsuit itself really borders on frivolous. I don’t know how the FFRF can claim they’ve been harmed by the IRS’ refusal to enforce the Johnson Amendment,” Mr. Stanley said. “But, on the chance it does, then we will seek to protect those churches.”

The Johnson Amendment refers to a 1954 change in the U.S. tax code which prohibits tax-exempt organizations from endorsing or opposing political candidates. The ADF, however, says it infringes religious organizations’ freedom of speech.

As such this case, as well as being used as evidence that the IRS has not moved to investigate church politicking, could be an important test case for the Johnson Amendment which is seen as highly important in preserving a separation between Church and State.

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