The exemption loss lie
At several Oregon churches the last few Sundays, worshipers have been asked to sign a petition for a state constitutional ban on same-sex marriages.
"The campaign has raised questions about how far churches can go to promote ballot measures without jeopardizing their tax-exempt status, which carries some limits on political activity," writes James Mayer of The Oregonian. Later in the story Mayer goes into more detail:
About 1,000 churches are involved in the petition drive, said Ray Cotton, pastor of New Hope Community Church in Clackamas and an organizer of the Defense of Marriage Coalition.
Cotton said tables are set up in the church foyer and people are encouraged to sign the petitions after the service. About 1,000 people signed May 30, he said, the first serious effort to get signatures.
[Basic Rights Oregon communications director Rebekah] Kassell said her group is monitoring the political activity of the churches working to get the initiative on the ballot.
"Talking about the issue is one thing," she said. "Actively collecting signatures, launching a political organization and gathering funds to defeat or support a ballot measure, that's something else."
The risk for churches is the loss of their federal tax-exempt status as nonprofits. Federal laws prohibit tax-exempt churches from supporting or opposing candidates for office. The laws do allow some lobbying on legislative matters, which include ballot measure signature drives. Lobbying cannot exceed an "insubstantial" share of the church's overall activities. The law doesn't define the term. One court said churches can devote less than 5 percent of their activities to lobbying without jeopardizing their status, though another court said more than 20 percent would endanger it.
Thanks to Mayer for including those numbers, which are far too often left out of media reports that generalize about tax regulations on churches' political involvement. But tax law is a complicated thing, and the numbers aren't as cut and dried as they may first appear. For starters, a church doesn't only exist on Sunday mornings. Let's say the average congregation has three full-time staff (it may be more, but there are an awful lot of small churches out there). Does Oregon have many small congregations where the staff are spending six hours a week pushing for this amendment (and other legislation) as part of their jobs?
Ah, someone might say, but it's not only paid staffers; volunteers count, too. That's true, but do you think that after you count all of the hours that church volunteers spend each weekteaching Sunday school, leading Awana, practicing for the worship team, running the soup kitchenyou'll find that parishioners spent 20 hours out of every 100 for an entire year campaigning for this amendment and other legislation?
Setting up tables in the church foyer to attract referendum signatures clearly passes the 5 percent test, even if the effort is announced during services. (By the way, if someone can demonstrate that the gay marriage issue directly affects the operation of the churchnot a big stretch, since most people marry in churchesthen the church wouldn't even be held to the "insubstantial" rule.)
Suggesting that churches are jeopardizing their tax-exempt status by allowing such an activity is an antidemocratic scare tactic. A canard. A lie. (For more, here's the American Center for Law and Justice's helpful backgrounder and the IRS's own "Tax Guide for Churches and Religious Organizations.")
Loosening the regulations on pulpits and politicsor tightening them?
What the tax code clearly demands is that churches not "participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office." A measure recently introduced in the U.S. House of Representatives would amend the code to make sure that pastors could make political statements as private citizens, and would allow up to three "unintentional violations" of the candidate endorsement rule a year.
House Speaker Dennis Hastert (R-Ill.) got the House Ways and Means Committee to add the text to the American Jobs Creation Act of 2004, explaining to The Washington Post that it aims to "meet the concerns" of Rep. Walter B. Jones Jr. (R-N.C.), author of last year's failed Houses of Worship Political Speech Protection Act.
Jones also introduced that bill this year, but it won't get out of the House Ways and Means Committee. Jones's bill goes much further than the Hastert text, called the Safe Harbor for Churches provision since there's no "three strikes" rule. (Weblog can't link to the Safe Harbor text directly, so click here and scroll down to "Sec. 692."). Jones's bills simply allow all political speech in the "content, preparation, or presentation of any homily, sermon, teaching, dialectic, or other presentation made during religious services or gatherings."
While Jones's bill received wide support among politically conservative religious organizations, there's hardly a peep from such groups this time around. And bad news for Hastert: The one peep so far is negative. A letter from Richard Land, head of the Southern Baptist Convention's Ethics and Religious Liberty Commission, is quoted in today's Washington Post as opposing the Safe Harbor provision. The bill's language, Land is quoted as writing to House Republican leaders, is "loose enough that it could be interpreted to broaden the restrictions" on pulpit politicking instead of loosening such restrictions. "This is a case in which the cure is worse than the disease," Land said.
Exactly what Land opposes about the bill is not reported by the Post, but a spokesman for Jones's office explains that the congressman's opposition to the provision is based on the penalty section. The bill, the spokesman explained to the Post, "could increase Internal Revenue Service scrutiny of churches by creating a graduated set of penalties for violating the rules on political activity. At present, he said, the IRS must make an 'all or nothing' decision: Either strip a church's tax exemption or leave it alone."
An article in today's Washington Times suggests that the ACLJ supports the Safe Harbor text, but isn't clear (the article is already outdated, since it doesn't include Jones's opposition).
Here's the political reality: When there's not broad support from the constituency a provision is supposed to mobilize, when there's active opposition from the other side of the aisle, and when it's criticized by the congressman it's supposed to "meet the concerns" of, that provision is as good as dead.
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