Pulpit Initiative

Here are some reports, from the Religion Clause blog, of a very interesting election-year issue:

1.

"Sunday's Pulpit Initiative Will Challenge IRS Limits On Non-Profits

This Sunday is Alliance Defense Fund's "Pulpit Initiative". ADF has encouraged pastors to use the day to challenge Internal Revenue Service restrictions on churches (and other non-profits) that preclude them from endorsing or opposing political candidates. Today's Toledo Blade reports on ADF's plans. (I am among those interviewed for the article, and some of my comments on the reasons for the IRS limits are quoted.) An ADF White Paper outlines its arguments against the constitutionality of the IRS provisions, and an FAQ document describes the Initiative as "a strategic litigation plan". ADF says that participating pastors:

will deliver to their congregations sermons of their own that apply Scripture to the subject of candidates for government office. The sermons are intended to restore a pastor’s right to speak freely from his pulpit without fearing censorship or punishment by the government. By standing together and speaking with one voice, it is our hope to recapture the rightful place of pastors and churches in American life.

Some 33 pastors from 22 states will participate according to the Los Angeles Times. Participants will include Rev. Gus Booth of Warroad Community Church in Minnesota and Rev. Wiley S. Drake of First Southern Baptist Church of Buena Park, California. [CORRECTION: ADF has informed me that Drake will not be one of the participants in the Pulpit Initiative.] Americans United issued a release on Wednesday criticizing the Pulpit Initiative, calling it "a Religious Right-led effort to politicize America’s pulpits." The Interfaith Alliance has posted a video titled Pulpit Politics: The Race for Pastor-in-Chief pointing out dangers of endorsements from the pulpit. (See prior related posting.) [Updated]" Link

2.

"More Tax Twists To ADF's "Pulpit Initiative"

Yesterday’s New York Times and a posting by Melissa Rogers point out another legal twist in tomorrow’s Pulpit Initiative sponsored by the Alliance Defense Fund to challenge the IRS rules on political activity by churches.. (See prior posting.) Earlier this month, three former IRS officials who are now lawyers in private practice wrote to the IRS Office of Professional Responsibility (full text of letter) asking it to investigate whether ADF has violated ethical rules binding on lawyers who practice before the IRS. Treasury Department Circular No. 230 provides that lawyers may not suggest to a prospective client that they violate any federal tax law. (Sec. 10.51(7)). ADF has offered to represent churches taking part in the Pulpit Initiative. ADF has also added a disclaimer to its website to prevent its advice being considered a "marketed opinion" as defined in Circular 230. A lawyer can issue a “marketed opinion” only if the lawyer concludes that it is more likely than not that the taxpayer will prevail using the tax advice included in the opinion. (Sec. 10.35)." Link

Freedom of Thought and Belief

The Court often says that freedom of thought and belief are protected by the constitution. But from what? How can a modern democratic government such as ours threaten freedom of thought and belief? We are not a Clockwork Orange kind of society, are we?

One commentator posed something like the following hypothetical:

"Suppose that the government conspired with the TV networks to include subliminal messages urging viewers to 'return the Administration to office' or 'to support laws recognizing same-sex marriage.' Would this action by government violate the First Amendment, or at least a broader principle of freedom of thought, belief and conscience underlying the First Amendment? "

If you think the subliminal messages are unconstitutional, what about more direct invasions of the minds of citizens? May government in Massachusetts require citizens to read a book supporting, say, same-sex marriage? May government in Mississippi require citizens to attend a showing of a documentary describing abortion as a form of unjust, legalized taking of innocent human life? May government require children to show up as a captive audience to be instructed and examined in the government's idea of common beliefs, common values, and common knowledge? In any of the above cases, should it matter if government conscripts its audience not by threat of prison, but by withholding governmental benefits from those who choose not to attend?

If we view the First Amendment as protecting freedom of the mind--of belief and thought--we might find ourselves arriving at some interesting conclusions about the propriety of various governmental programs.

Interesting Case From religion Clause Blog

Texas Court Rejects Establishment Clause Challenge To Ban On Murder of Fetus

In Flores v. State of Texas, (TX Ct. Crim. App., Feb. 13, 2008), the Texas Court of Criminal Appeals rejected an Establishment Clause challenge to the Texas law that defines the killing of an unborn fetus as capital murder. Judges Cochran and Johnson filed a concurring opinion. Texas Penal Code Sec. 1.07(a)(26) defines an "individual" as "including an unborn child at every stage of gestation from fertilization until birth." Sec. 19.03(a)(8) defines capital murder as including the murder of an "inidvidual" under six years of age. Sec. 19.06 excludes from the ban medical abortions or conduct by the mother.

Defendant Gerardo Flores was convicted of murdering his girlfriend's twin fetuses. He argued that the statute criminalizing the murder of a fetus has a religious purpose. The court, however, held that: "Mere consistency between a statute and religious tenets ... does not render a statute unconstitutional.... While some may indeed view a fetus as a human being out of religious convictions, others may reach the same conclusion through secular reasoning or moral intuition unconnected to religion. Moreover, even those who do not view the fetus itself as a person may still want to protect fetal life simply because it represents potential human life."