John H. Wilson
John H. Wilson is a former Judge of the New York City Criminal Court. He has served as an Assistant District Attorney, and a Public Defender.
Under 26 USC 501( c)(3), Religious, Educational, and Charitable organizations that maintain a nonprofit status are exempt from paying federal income taxes. This exemption is in effect, according to the IRS, so long as the church or religious organization does “not participate in, or intervene in, any political campaign on behalf of (or in opposition to) any candidate for public office.” In fact, the IRS Tax Guide for Churches and Religious Organizations uses the word “must” in describing this prohibition, and not a more permissive word, such as “might” or “may.”
The Tax Guide also specifically states that ” no substantial part of” a Church or Religious Organization “activity may be attempting to influence legislation.” Lobbying by churches and religious organizations is also specifically and unequivocally prohibited.
The rules against influencing legislation and lobbying is the legal basis for the recent move by the Mayor of Houston, Annise Parker, to subpoena the sermons of five pastors of Houston churches. These pastors are affiliated with a movement to challenge Houston’s Equal Rights Ordinance, the so-called “bathroom” law. The pastors are part of a group that believes the law is overbroad, and could lead to men being allowed use of the ladies room. This group has sued the City of Houston, claiming their petition to have the Equal Rights Ordinance submitted to a voter referendum was improperly invalidated by the Mayor.
On initial inspection, the Mayor would seem to be on solid legal ground. If churches are tax exempt, based on their disassociation from political activity, when the pastors of these churches are involved in a movement to challenge a city ordinance through gathering petition signatures, they may have crossed the line, and become involved in prohibited activity. If that is the case, their actions could constitute lobbying, and the sermons given by these pastors, supporting a change in the law, could constitute “activity” intended to “influence legislation.”
Yet, Mayor Parker reversed course in the face of a strong conservative backlash, and withdrew the subpoenas after Fox News host and Baptist Minister Mike Huckabee blasted the Mayor, and encouraged his viewers to send her Bibles.
On the one hand, it’s easy to see where the impulse to defend the pastors’ right to say what they wish from their pulpit comes from. There is a very long tradition of reading the First Amendment’s free speech clause very broadly, and when this concept is coupled with the “separation of church and state,” the average person’s hackles are raised by Mayor Parker’s ham-fisted move.
But let’s go back to our initial analysis – if the pastor’s are challenging the City of Houston’s legislation from the pulpit, aren’t they in violation of their tax exempt status? And doesn’t the government have the right to investigate this violation of the law?
The answer lies in the casual disregard of this prohibition against political activity in church by the left in general, and Democrats in particular.
The Religious News Service recently published an article on line discussing the do’s and don’ts of hosting a political candidate at your church. Entitled “Is it legal for political candidates to speak at a church?” The fourth rule states “Churches may host candidates to speak about the election, but they must do so in a way that is not partisan and gives equal opportunity to all the candidates.”
How is this accomplished? “A church may invite each of the candidates to speak during the worship service and field questions from the congregation. So long as the church doesn’t endorse one of the candidates or show bias against the candidates, this is all legal.”
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This may sound reasonable, but in fact, this is often a rule honored in the breach. In fact, politicians appear at churches across the country at will, without an opponent in sight. This practice is so common, no one raises an eyebrow when a politician appears in church on Sunday morning, sitting right next to the pastor on the pulpit.
For instance, during this year’s gubernatorial election in New York, the Republican candidate, Rob Astorino raised an alarm among leftists by appearing at the Perfecting Faith Church in Freeport, Long Island. The Pastor, Donnie McClurkin, describes herself as “ex-gay,” which drew predictably strong criticism from NYS Assemblyperson Deborah Glick.
But the criticism was not aimed at Astorino for appearing at a church without his opponent being present during an election, nor was any complaint made against the church for hosting the candidate. All Assemblyperson Glick cared about was Pastor McClurkin’s belief in “conversion therapy,” in which a gay person is “converted” to a straight sexual orientation.
It is possible that Governor Cuomo was invited to speak at the Perfecting Faith Church, and being a good left wing Democrat, decided he could not possibly appear at any place that endorses “conversion therapy.” But my right wing readers can think back to any campaign they may have been involved with, and count the number of times their candidate was invited to appear at places like the Jazz Mass at St Peter’s Lutheran Church in Manhattan, or the Christian Community Neighborhood Church on Longfellow Avenue in the Bronx.
In fact, the Christian Community Neighborhood Church boasts having for their pastor, New York State Senator Ruben Diaz. Can you guess which party the good reverend belongs to?
So what was the real problem with Mayor Parker’s subpoenas? Was this really an infringement on the First Amendment rights of these pastors? If they were lobbying for a voter referendum on the Houston Equal Rights Ordinance, or discussing their opposition to that legislation from the pulpit, then no – their churches are tax exempt based on their nonparticipation in politics, and the pastors’ First Amendment rights are not threatened by the Mayor’s subpoenas.
The true issue is the selective enforcement of the religious tax exemption. If Mayor Parker of Houston is going to challenge these pastors on this issue, what’s to stop a conservative mayor from asking for the pro-illegal immigration and anti-fracking sermons given every Sunday at left wing churches? What’s to stop a conservative attorney general from demanding that any church candidate forum actually include all candidates? Why wouldn’t a right wing governor seek an injunction preventing pastors from leading their congregations in anti-war marches?
Nothing – and this is the real reason Mayor Parker pulled back from that abyss. Every now and then, someone on the left realizes that their efforts to suppress dissent can backfire in ways detrimental to their own practices.