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The Alliance Defense Fund (ADF) held its "Pulpit Freedom Sunday" this week. The annual event encourages pastors to "preach from their pulpits … about the moral qualifications of candidates seeking political office." The event encourages pastors to stand up against tax regulations that, according to the ADF, unconstitutionally regulate pastor speech.

However, in practice, pastors are free to speak out on candidates.

The ADF event is part of its Pulpit Initiative, a larger legal strategy to change tax law—not the way the IRS implements it. This strategy, ironically, needs the Internal Revenue Service (IRS) to start punishing pastors so that the ADF can sue to have the IRS stop punishing pastors.

As non-profits, churches cannot participate in political campaigns for or against a candidate for office. The so-called Johnson Amendment limits nonprofits' involvement in electoral politics. The ADF considers the Johnson Amendment to be unconstitutional.

But in the U.S., it is not enough to believe that something is unconstitutional; one needs a victim. The ADF is conducting a classic test case strategy. The ADF cannot sue to change tax regulations unless it represents a client who has been harmed by the law.

This is the reason for Pulpit Freedom Sunday: to find a victim whose case can be used to change the law.

According to the ADF, "The goal of the Pulpit Initiative is simple: have the Johnson Amendment declared unconstitutional—and once and for all remove the ability of the IRS to censor what a pastor says from the pulpit. ADF is actively seeking to represent churches or pastors who are under investigation by the IRS for violating the Johnson Amendment by preaching biblical Truth in a way that expresses support for—or opposition to—political candidates."

In other words, the ADF is goading the IRS into the church speech regulation business. If the IRS takes the bait and begins punishing pastors, then the ADF can use a resulting case to try to overturn the Johnson Amendment.

The ADF is not looking for just any case. Pulpit Freedom Sunday does not promote actual campaign activity—it is a time for pastors to speak about the morality of candidates. According to the ADF, the event is "only related to what a pastor says from his pulpit." It is "not about voter guides, candidate appearances, or other 'political' activities." If the IRS starts punishing pastors for mere words, then there would be a very strong case on both freedom of religion and freedom of speech.

ADF senior legal counsel Erik Stanley said that only churches should decide if it is inappropriate for pastors to speak from the pulpit about candidates.

"ADF is not trying to get politics into the pulpit. Churches can decide for themselves that they either do or don't want their pastors to speak about electoral candidates. The point of the Pulpit Initiative is very simple: the IRS should not be the one making the decision by threatening to revoke a church's tax-exempt status. We need to get the government out of the pulpit," said Stanley.

But to get them out of the pulpit, the IRS first needs to get into the pulpit. The IRS does state in its guide for churches that the following hypothetical circumstance would be illegal:

Example 4: Minister D is the minister of Church M, a section 501(c)(3) organization. During regular services of Church M shortly before the election, Minister D preached on a number of issues, including the importance of voting in the upcoming election, and concluded by stating, "It is important that you all do your duty in the election and vote for Candidate W." Because Minister D's remarks indicating support for Candidate W were made during an official church service, they constitute political campaign intervention by Church M.

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October (Web-only) 2011, Vol. 55

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