Praying for an Explanation?

by Kathryn Jean Lopez

In June of 2009, an IRS agent told the Coalition for Life of Iowa that all the members of its board would need to sign a letter stating that under penalty of perjury they would not picket/protest or organize groups to picket/protest outside of Planned Parenthood. The agent indicated that the Coalition for Life of Iowa’s petition would go through after such a letter was received. Susan Martinek, president of the Coalition for Life of Iowa, testified about this in front of the House Ways and Means Committee earlier this week. The Coalition for Life of Iowa is represented by the Thomas More Society. Sally Wagenmaker, one of their lawyers, talks to National Review Online about some of the cases they’re working on.

KATHRYN JEAN LOPEZ: Did you think someone was mistaken or kidding when you learned that the IRS had asked the Coalition for Life of Iowa about the content of their prayer?

SALLY WAGENMAKER: This was no joke. The IRS required the leader of this organization to respond “under penalties of perjury” and at the risk of losing IRS approval of its tax-exempt status. Prayer is constitutionally protected under the First Amendment, and therefore never could be the subject of any legitimate IRS inquiry about tax-exempt qualifications under section 501(c)(3). The IRS agent asked how prayer meetings could be considered “educational,” which would be one way to qualify for section 501(c)(3) exemption. But given the inherently religious quality of prayer, which is another entirely legitimate way to qualify for 501(c)(3) exemption, this question was completely unnecessary and inappropriate. In addition, the IRS agent asked about the percentage of time spent in prayer groups and to “explain in detail” what occurred at these prayer meetings, as if this humble band of believers were up to something nefarious.

LOPEZ: Did anyone at the IRS ever give an explanation of why an agent would ask for board members to sign a declaration that they would not picket Planned Parenthood?

WAGENMAKER: Not to my knowledge. The organization gave no indication that it would engage in anything but peaceable, lawful activities in furtherance of their First Amendment rights of assembly, free speech, and religious liberty. The IRS agent essentially asked that the Coalition’s participant forfeit these constitutional rights as a condition of favorable tax-exempt status.

LOPEZ: What is Christian Voices of Fort Bend County’s complaint?

WAGENMAKER: They had no complaint except to be allowed to enjoy the same tax-exempt privileges enjoyed by other advocacy organizations (like Planned Parenthood itself) and religious groups, namely to promote their religious belief that life is sacred – even within the womb – and to promote their cause through educational messaging.

LOPEZ: Are there any systemic patterns you’ve observed in these IRS cases?

WAGENMAKER: I keep seeing the IRS use the wrong legal standard in asking about “educational” activities — i.e., advocacy. In the cases I handled from 2009 and 2011, as well as cases I have seen very recently, the IRS keeps asking the applicants to show how they present both views of the pro-life issue – that is, a balanced approach. But that is clearly not the legal standard. In 1980, the federal D.C. Court of Appeals (one step below the U.S. Supreme Court) ruled unequivocally in the Big Mama Rag v. U.S. case that such inquiry is unconstitutional.

Section 501(c)(3) organizations are most definitely allowed to advocate only one side of an issue, and still be counted as “educational.” (Exhibit A: Planned Parenthood). It seems very disturbing to me that the IRS has kept imposing the wrong legal standard at different times and through different IRS offices. This seems to be a systemic problem. Do our U.S. citizens really have to educate the IRS itself about the controlling law? And what about organizations that cannot afford to mount a legal challenge or do not know about public-interest law firms like the Thomas More Society that can help secure their rightful exemptions?

LOPEZ: When did you realize what a big deal this might really be?

WAGENMAKER: When I opened my newspaper and read about the IRS basing its scrutiny of tax-exempt organization on content-based questions and delays. As my clients have experienced, the IRS certainly has the ability to intimidate qualified charities based on the content of their applications.

LOPEZ: What are you learning about government in this process?

WAGENMAKER: The bigger the government, the more harm can result. Our liberties are too precious to allow government intrusion, whether on personal or systemic levels, and particularly when it comes to religious liberty, freedom of speech, and freedom of assembly.

LOPEZ: Has your phone been ringing off the hook with press queries? TV and radio requests?

WAGENMAKER: It has been a busy season. I appreciate the media’s work in exposing the IRS’ shortcomings and raising public awareness of the need for reform.

LOPEZ: Is there any good news in all this?

WAGENMAKER: Plenty. Organizations like the Thomas More Society, for which I serve as special counsel, are on the front lines advocating for people and organizations caught up in religious-liberty and pro-life battles. In addition, with more news emerging about what has happened at the IRS, hopefully reform will come and pro-life organizations like those I represented will be left alone. This is also a great time to seek greater reform. We shouldend the political ban on 501(c)(3)s, which many regard as unconstitutional and contrary to our nations rich heritage of religious liberty, so that the IRS will have even less reason – and ability – to intrude in the areas of free speech and freedom of religion.