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As you may recall, the conservative Alliance Defense Fund is holding a “Pulpit Initiative” on Sunday, September 28, during which some number of chergy will endorse, oppose, or otherwise engage in partisan political activity from their pulpits in order to challenge the federal law forbidding non-profits from engaging in such activity on pain of losing their tax exemptions. Today’s Washington Post quotes ADF attorney Erik Stanley (writing to a couple of UCC pastors on the other side) to the effect that clergy enjoy a “constitutional right to speak freely from the pulpit” and that IRS rules “stifle religious expression.”
The simplest way to deal with the IRS rules would, of course, be to just change the law. But efforts to do that went nowhere when the Republicans were in charge of Congress, and they’re certainly not going anywhere in the near future. So how plausible is the constitutional challenge? Not very. The IRS rules do not prevent pastors from exercising their right of free speech or from freely exercising their religion. What they say is that non-profits like churches don’t get to play politics and at the same time take advantage of the state’s willingness not to tax them. Non-profits, including religious institutions, have no constitutional right not to pay taxes; the state, by waiving their taxes, subsidizes what they do and say. And, as Marc Stern wrote in the last issue of Religion in the News, the Supreme Court “has repeatedly held that a failure to subsidize speech does not burden speech under either the speech, religion, or due process clauses of the Constitution.”
The Pulpit Initiative is, in other words, legally vacuous. Whether it helps a little to mobilize the GOP’s conservative base is another question.