“The groups that have resorted to scare tactics repeatedly speak out of both sides of their mouths. On the one hand, when people of faith speak out about moral issues in public, they are accused of attempting to force their religion upon others; but when they speak of moral issues in church, they are accused of engaging in politics. The Jeffersonian ‘wall of separation’ doctrine has been twisted in an attempt to silence people of faith not only in the public square, but also in their churches. This attitude is an unofficial but outspoken bias against people of faith."
The James Madison Center for Free Speech, Alliance Defense Fund, Family Research Council, Focus on the Family and Concerned Women of America are concerned about, focused on and determined to defend free speech, including free speech for pastors targeted for intimidation by secular extremists.
Pastors have rights too, they need to know them and these organizations decided to declare them clearly, concisely and authoritatively.
The result is a well-researched joint educational letter detailing the rights of pastors, priests and rabbis to speak on pro-life (and other) topics during the 2008 elections: “Constitutional Protections for Pastors: Your Freedom to Speak Biblical Truth on the Moral Issues of the Day.”
The reason for the letter: to permit pastors, priests and rabbis to speak out comfortably on issues like abortion during the elections without jeopardizing the tax-exempt status of their church or synagogue. (Misleading information had been generated by far left organizations such as the Americans United for Separation of Church and State.)
Prominent pro-life attorney James Bopp: "The letter assures pastors and churches that they have constitutional rights to express their views on a broad array of social issues as well as allow parishioners to sign petitions in support of moral positions."
Mr. Bopp condemned deceptive efforts to "silence the voices of churches and pastors on critical social issues" and clarified that “[c]hurches and pastors have First Amendment rights and should not be intimidated into silence on the great moral issues of the day by threats of legal action."
"Churches and pastors may lawfully engage in a number of activities as permitted by Federal law," Mr. Bopp concluded. "Reading this joint letter is the first step for pastors and churches in understanding those activities and making sure that their voices are heard.”
I am setting the textm of the letter forth below so that everyone can read it and anyone concerned that his or her pastor, priest, minister or rabbi is unaware of it can provide it conveniently.
“As the 2008 elections approach, various groups have launched intimidation tactics in an effort to silence churches and pastors about the great social and moral issues of our time. Churches and pastors need clear guidelines for permissible political activities to answer to these attacks. In response to that need, Alliance Defense Fund, The James Madison Center For Free Speech, Focus on the Family, Concerned Women for America, and Family Research Council are providing these guidelines’ to ensure that pastors and churches are not silenced during this next campaign cycle. In addition, the Alliance Defense Fund and the James Madison Center are prepared to respond free of charge to inquiries by churches, pastors and priests on permissible political activities through informal e-mails, telephone advice and legal opinion letters.
“Recently, we have seen groups like Americans United for Separation of Church and State send misleading letters to churches through its so-called ‘Project Fair Play’ in an effort to muffle the voice of churches and pastors on critical social issues. Sometimes churches are even threatened with the loss of their tax-exempt status, and bogus complaints are filed with the Internal Revenue Service, occasionally leading to IRS investigations? Thus, the remote possible loss of tax-exempt status is used by those hostile to people of faith to chill their right of free speech and to silence them in their own churches.
“The groups that have resorted to scare tactics repeatedly speak out of both sides of their mouths. On the one hand, when people of faith speak out about moral issues in public, they are accused of attempting to force their religion upon others; but when they speak of moral issues in church, they are accused of engaging in politics. The Jeffersonian ‘wall of separation’ doctrine has been twisted in an attempt to silence people of faith not only in the public square, but also in their churches. This attitude is an unofficial but outspoken bias against people of faith.
“Such tactics are not new. They have been tried time and again, and have consistenty failed. For example, in 1996, 1998 and 2000, pro-homosexual activists targeted churches that supported a proposition in California that defined marriage as being between one man and one woman. In one mailing, activists sent out some 80,000 threat letters. See Erik J. Ablin, The Price of Not Rendering to Caesar: Restrictions on Church Participation in Political Campaigns, 13 Notre Dame J. L. Ethics & Pub. Pol’y 541, 557 (1999). These would-be censors failed to suppress Christian speech—the California measure ultimately passed and no church had its tax-exempt status revoked. Churches and pastors must not allow these tactics of hate and intolerance to succeed in 2008.
“By this letter, we assure you that churches and pastors have broad constitutional rights to express their views on a broad array of social issues such as marriage, abortion, and homosexual behavior. Furthermore, other activities such as allowing parishioners to sign petitions in support of traditional marriage are almost undoubtedly permissible under federal tax law. In the same way, the First Amendment to the United States Constitution most likely prevents states from demanding that churches register as ‘political committees’ or report ‘contributions’ when the churches merely preach about issues or allow petitions to be signed at their facilities.
“If you are contacted by any government official or private activist group on such issues, please call either the Alliance Defense Fund or the James Madison Center immediately. Attorneys will promptly review your situation and make every effort to defend your church’s legal rights to speak freely in support of important social and moral issues. Below we briefly discuss the relevant law.
“This concise overview summarizes the requirements of the Federal Election Campaign Act and the Internal Revenue Code as they apply to churches and pastors. [One caution — state laws may be more restrictive than these guidelines and, therefore, in applying them to specific situations regarding state candidates or state elections, a local attorney should be consulted. ADF has more than 1000 allied attorneys across the United States to whom we may be able to refer you. Attorneys at the James Madison Center are also available for consultation.] As guidelines, they may not address every situation that you face and should not be construed as legal advice relevant to your specific set of facts. However, churches and pastors may obtain legal advice free of charge regarding your particular situation by contacting the Alliance Defense Fund at 1-800-TELLADF or www.telladf org or the James Madison Center at (812) 232-2434 or www.jamesmadisoncenter.org.
“IRS Tax Exempt Status of Churches
“Almost all churches are exempt under section 501(c)(3) of the Internal Revenue Code on the basis that they are “operated exclusively for religious, charitable. . . or educational purposes. “As a 501(c)(3) exempt organization, a church:
(1) is exempt from paying corporate income taxes;
(2) donations to it are tax deductible on federal tax returns and;
(3) it may expend funds for religious, charitable and educational purposes and an insubstantial amount on lobbying and to promote legislation. [While the term ‘insubstantial’ has not been precisely defined by the IRS, the general rule of thumb is less than 15% of the organization’s total activities or funds.]
“A 501(c)(3) exempt organization, however, may not ‘participate in, or intervene in (including the publishing or distributing of statements) any political campaign on behalf of any candidate for public office.’ Thus, a church may not participate in a political campaign on behalf of or against a candidate by expenditure of its funds or use of its facilities. Still, not all political activity that would influence an election falls under this prohibition.
“Political activities referred to here are activities which influence the election of candidates for public office—most of which are referred to as ‘electioneering.’ Activities which can influence the election of a political candidate are quite broad and range from contributions to a political candidate to activities such as publishing the voting record of incumbents who are also running for reelection. Only some of these activities are considered active electioneering which cannot be done by a church, but many of these activities can be done by a 501(c)(3) organization or its pastors.
“'Active' electioneering cannot be done by a church. Active electioneering involves actions such as endorsements of candidates and expenditures of funds to expressly advocate the election or defeat of a particular candidate for political office. Active electioneering is of three types: (1) a direct contribution, which is a monetary contribution given to a candidate, (2) in-kind contributions, which include giving anything of value to a candidate (such as a church mailing list) or paying for a communication that expressly advocates the election or defeat of a clearly identified candidate made in coordination with a candidate, and (3) independent expenditures expressly advocating the election or defeat of a political candidate made without the knowledge of or consultation with any candidate.
“Issue-oriented speech can also influence elections. Issue advocacy, however, may not be limited by government and may be freely engaged in by churches. Issue advocacy includes the discussion of issues of public concern, the actions of government officials in office and even the positions of candidates on issues. As long as one does not use explicit words expressly advocating the election or defeat of a clearly identified candidate, one is free to praise or criticize officials and candidates with regard to their positions on certain topics.
“Pastors Have Separate Rights
“Individuals, such as pastors or priests, may participate in political campaigns, as long as they do so as individuals, and not in the name of the church. Any individual, including a pastor, may wear different hats at different times and, therefore, be involved in political activity, as long as they are wearing the right hat at the right time and place.
“Pastors and priests, as individuals, have the same rights as all other American citizens to involve themselves in political activity. Pastors thus have much greater latitude to involve themselves in political activities than does a church. Individual pastors can endorse political candidates so long as the endorsement is not on behalf of the Church and it is not made in a way that gives the appearance that the endorsement is made in the capacity of pastor or priest. [The pastor should refrain from declaring his personal support for a candidate while performing official duties (e.g. preaching, using church letterhead, etc.). When endorsing a candidate, the pastor may be identified as a pastor of a particular church for identification purposes only, and must indicate that the endorsement is solely that of the pastor and not the church.]
“Pastors are understandably concerned about the legal effects of political activity on themselves and their churches, but should be aware that they are not required to remain silent and passive. Their voices and views can be exercised publicly so long as the basic guidelines are followed.
“As we approach another election season, it is important that we make it clear that the would-be censors of political speech have sent a confusing, if not misleading message about what can rightflilly be done. We have enclosed a chart of activities that may be considered political activities in the broad sense and have identified those activities which it is permissible for churches and pastors to participate. [These guidelines summarize the general requirements of the Federal Election Campaign Act and the Internal Revenue Code only as they apply to churches and pastors. These guidelines should not be construed as legal advice regarding your particular situation. Churches and pastors may obtain legal advice, free of charge, regarding their particular situation from the Alliance Defense Fund or the James Madison Center.] We hope this will guide you and encourage you to speak the Truth, to be an advocate for the godly principles and family values, and to be salt and light to this generation.”
Attached to the letter is a simple chart of guidelines for political activities by churches and pastors and detailed explanations of individual items.
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.