Is the Internal Revenue Service a threat to religious liberty?
As the IRS continues to come under well-aimed fire for harassing conservative groups, on Friday it secured a final court order formalizing what amounts to a secret agreement to monitor the pulpits of ill-favored churches. The serious danger, as former Justice Department attorney J. Christian Adams told Fox News, is that the IRS will start treating “theology as politics,” and regulate it accordingly.
According to a June 27 IRS letter to the Justice Department, 99 churches merit “high priority examination” for allegedly illegal electioneering activities. The letter was sent in reference to a now-dismissed lawsuit filed by the atheist group known as the Freedom from Religion Foundation (FFRF). The suit originally was a rather broad one, demanding not only that the IRS enforce prohibitions against churches’ endorsing candidates specifically, but also that churches should be “required to file” what it described as “detailed annual information” that would force them (if they are like other nonprofits) to “expend substantial time and resources.”
With the end of the suit, those filings presumably will not be required (though a second suit, on just that subject, remains open). But IRS’s monitoring of alleged electioneering activities could still be quite onerous.
In a 2012 letter to the IRS, for example, FFRF complained that Bishop Robert Morlino of the Madison, Wis., diocese, had dared send out an election-season letter stressing the Catholic Church’s opposition to abortion and homosexual marriage. The letter said that “no Catholic, in good conscience,” may vote for candidates who are “pro-choice,” who support same-sex marriage, or “who would promote laws that would infringe upon our religious liberties and freedom of conscience.”
To FFRF, it didn’t matter that the bishop did not mention a single candidate by name, instead leaving it up to voters to apply this generic, well-established teaching of the Catholic Church. “The Diocese of Madison appears to have inappropriately intervened in a political campaign,” wrote the group’s staff attorney, Rebecca Markert. How? “Those issues are generally what distinguish Republican and Democratic social platforms,” Markert explained. “Likewise, the paragraph about ‘religious freedom and freedom of conscience’ is a clear reference to the current HHS mandate of the incumbent candidate for president, Barack Obama. Though he does not explicitly state, ‘Vote for Romney’ or any other specific candidate, it is clear to the reader that Morlino is urging members of his diocese to vote against President Obama and other Democratic candidates.” The letter concluded with a plea for the IRS to “commence an immediate investigation of the Diocese of Madison.”
Likewise, FFRF asked the IRS to sanction Billy Graham’s ministry for newspaper ads urging voters to consider the same three issues, so “that we will turn our hearts back to God.” (Oh, the horror!)
These FFRF letters are chilling. Indeed, if the IRS actually enforced FFRF’s suggested standards, it would be downright frightening. It would mean that not only that pastors could be forbidden from candidate endorsements but also that they could not even inform their congregants about the real-world tenets of their faith. The traditional bright line between explicit electioneering and the sorts of things FFRF’s letter wants stopped exists for good reason: Freedom of conscience, and of faith practices, is the founding freedom of this nation. If government dares to forbid preachers from mere religious instruction — while the preachers still leave it up to their flocks to apply that instruction according to their understanding and their consciences — then there is nothing to stop government from infringing on other pulpit pronouncements with ever-more-intrusive regulatory strictures.
The standard suggested by FFRF would be far more than a gentle slippery slope toward trammeled religious freedom; it would be an avalanche that buries and then asphyxiates liberty.
Worse, by prohibiting clergy from making pleas for protecting religious liberty at the ballot box, FFRF would make churches the only institutions in America denied free-speech rights on their own behalf. Anybody, from any platform, including a pulpit, should be able to argue for generic support of candidates who support the freedom the speaker is utilizing. But FFRF would trample that — dare I say it — God-given right, by forbidding the church and its personnel from advocating for religious liberty.
So, with all that as background, what exactly did the IRS finalize last week? The atheist group withdrew its suit, so one would ordinarily think that it lost — right?
Not even close: FFRF has been crowing loudly about its “victory.” It asked for its suit to be dismissed “without prejudice” because the IRS was able to assure FFRF, in private discussions, that the agency would indeed take an active role in monitoring churches. That’s what the IRS’s June 27 letter to the DOJ, which specified that 99 churches warrant “high priority examination,” explained.
In fact, the IRS on July 22 filed a motion with the court specifically to deny the request of another church, which had become a party to the suit, for documents pertaining to the “agreement” between IRS and FFRF. In other words, shockingly, the IRS was now taking the side of the atheist group that had nominally sued it. One week later, FFRF filed a motion making clear, as its co-president Annie Laurie Gaylor put it, that the dismissal of its suit applies only if “our agreement has teeth.”
So even though the IRS will now put “teeth” into its monitoring of churches, the general public will not be allowed to find out exactly what those teeth can bite into (according to the IRS’s July 22 motion against release of documents, which the judge granted August 1).
Considering the IRS’s well-publicized penchant for burying or erasing evidence (even from Congress) of its bias against conservative political groups, this secrecy about enforcement teeth in the church-electioneering case should raise concerns from every traditionalist church and faith group.
It has been well documented that the Obama administration and its bureaucratic minions think little of traditional notions of religious freedom. Its recent executive order barring federal contractors — including faith-based groups — from discriminating on the basis of sexual orientation is one more example of this authoritarian impulse.
Congress thus should investigate this IRS-FFRF agreement, to ensure that, in actual practice, it results in nothing nefarious.
— Quin Hillyer is a contributing editor for National Review Online. Follow him on Twitter: @QuinHillyer.