The Freedom From Religion Foundation’s closely watched federal challenge over illegal partisan politicking by churches just got a green light from U.S. District Judge Lynn Adelman of the Western District of Wisconsin.
Adelman’s decision will allow FFRF’s historic challenge to continue to discovery, so that the public may learn the facts regarding IRS inaction over church politicking.
The court decision came five days after a coalition of mostly evangelical organizations overtly urged Congress to repeal prohibitions against partisan pulpit politicking.
FFRF, a national state/church watchdog with more than 19,000 members nationwide, sued the Internal Revenue Service last December over its lack of enforcement of its own policies prohibiting churches from endorsing from the pulpit. As Adelman observed, “A condition of this [501(c)(3) tax] exemption is that the entity not participate in or intervene in any political campaign on behalf of, or in opposition to, any candidate for public office.”
Adelman issued a decision and order on Aug. 19 denying the IRS motion to dismiss FFRF’s challenge: “The Foundation has standing to seek an order requiring the IRS to treat religious organizations no more favorably than it treats the Foundation.”
Adelman added: “If it is true that the IRS has a policy of not enforcing the prohibition on campaigning against religious organizations, then the IRS is conferring a benefit on religious organizations (the ability to participate in political campaigns) that it denies to all other 501(c)(3) organizations, including the Foundation.”
The IRS sought to suppress the lawsuit, claiming FFRF lacked standing to sue, and that the U.S. is barred by sovereign immunity from being sued. Adelman rejected both claims, noting FFRF itself is a 501(c)(3) and is alleging “disparate treatment,” and that “it is the IRS’s own policy that is causing the alleged unequal treatment.” FFRF is not asserting a “generalized grievance but rather its own, particularized interest in receiving equal treatment.”
Adelman noted “the IRS does not dispute that this court has the raw power to issue an injunction preventing the IRS from continuing to follow a policy of favoritism toward religious organizations.”
FFRF Co-President Annie Laurie Gaylor blasted the recommendations by last week's evangelical report, closely aligned to the Evangelical Council for Financial Accountability, which is “committed to helping Christ-centered organizations.”
Participating members include those connected to the usual theocratic groups, including the Liberty Counsel, Alliance Defending Freedom, the Christian Legal Society, Campus Crusade for Christ and the U.S. Conference of Catholic Bishops, with a few token non-Christian groups thrown in.
“If churches — even along with all other 501(c)(3)s — were allowed, despite their privileged tax-exempt status, to endorse candidates and engage in partisan politicking, the result would make Citizens United look like child’s play,” Gaylor added.
FFRF is also in federal court suing over preferential treatment of churches, which do not file annual statements of financial accountability with the IRS, unlike all other 501(c)(3)s. It is also awaiting a decision over its federal lawsuit challenging the parish exemption, in which clergy are uniquely gifted with the right to be paid through “housing allowances,” and to deduct those allowances from taxable income. The stated purpose of the exemption when enacted by Congress was to reward clergy for fighting “godlessness.”
“The time for a free ride for churches is over,” Gaylor said. “The rest of us pay so much more in taxes because clergy pay so much less. If these churches — which are accountable to no one in government yet get so many favors — are allowed to engage in tax-exempt politicking, it would be the ruination of our democracy.”