The Freedom from Religion Foundation, American Civil Liberties Union and Americans United for Separation of Church and State filed a joint federal lawsuit July 23 on behalf of FFRF member Douglas Marshall, contesting the ban of a “reason station” in a city hall atrium where the city has allowed a “prayer station.”
Since 2008, the city of Warren, Mich., has allowed Tabernacle Church, a Church of God congregation, to set up the prayer station, in which volunteers distribute religious pamphlets, pray with passersby and promote their religious beliefs. The lawsuit doesn’t seek to remove the prayer station but asks the court to order the city to treat believers and nonbelievers equally.
When Marshall, a Warren resident, asked to set up a reason station in April for two days a week, he was denied a permit. According to the lawsuit, filed in U.S. District Court for the Eastern District of Michigan, Marshall and other volunteers who operate the reason station would offer philosophical discussions with people who express an interest in secularism.
Upon receiving news of the lawsuit, Fouts told The Associated Press: “The city has certain values that I don’t believe are in general agreement with having an atheist station, nor in general agreement with having a Nazi station or Ku Klux Klan station.” He added that a reason station “will not contribute to community values or helping an individual out.”
In his rejection letter, Mayor James Fouts wrote: “To my way of thinking, your group is strictly an anti-religion group intending to deprive all organized religions of their constitutional freedoms or at least discourage the practice of religion. The City of Warren cannot allow this.”
“Our Warren member simply wants the same access to the atrium that has been granted to others, including those who operate the prayer station,” said Annie Laurie Gaylor, FFRF co-president. “Regardless of one’s viewpoint, there’s no legally justifiable reason to deny Douglas Marshall his First Amendment rights.”
Dan Korobkin, ACLU of Michigan deputy legal director, said, “Once the government opens public space for use by private groups, it cannot pick and choose who can use the space based on the content of their message or whether public officials agree with that message. The city cannot allow speech supportive of religion and reject speech supportive of atheism.”
“The city has an obligation to serve all members of the community equally, regardless of their faith or their lack of faith,” added Alex Luchenitser, Americans United associate legal director.
“The government can’t simply silence private speakers whenever it dislikes their message,” said Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief. “Nobody should be excluded from their own city hall based on what they believe, or don’t believe.”
In addition to Korobkin, Luchenitser and Mach, Marshall is represented by Ayesha Khan of Americans United, Rebecca Markert and Patrick Elliott of FFRF and Michael Steinberg, Kary Moss and William Wertheimer of the ACLU of Michigan.
To read the legal complaint and motion for preliminary injunction:
The Freedom From Religion Foundation and the Internal Revenue Service are poised to resolve FFRF’s closely watched federal lawsuit challenging the IRS’s non-enforcement of anti-electioneering restrictions by tax-exempt churches. The expected settlement would be a major coup for FFRF, a state/church watchdog and the nation’s largest freethought association, now topping 21,000 members.
FFRF and the IRS filed an agreement July 17 to dismiss the lawsuit voluntarily, after communications from the IRS that it no longer has a policy of non-enforcement against churches. However, the agreement is being disputed by an obscure Milwaukee-area church, Holy Cross Anglican Church, which is intervening in the case and is represented by the Becket Fund for Religious Liberty.
The settlement would allow FFRF to voluntarily dismiss its lawsuit “without prejudice,” meaning FFRF can renew it if the IRS reverts to its previous inaction. As of press time, District Judge Lynn Adelman of Milwaukee, hadn’t ruled on the agreement.
“We’re proud that FFRF’s litigation should ensure that the IRS will now resume enforcing the law, and go after churches which abuse their tax-exempt privilege by attempting to illegally influence the outcome of elections,” said FFRF Co-President Dan Barker. “Otherwise, churches will become unaccountable PACs, congregations could turn into political wards, and donations to the collection box could be used for political purposes. FFRF’s litigation will help safeguard our democratic election process.”
FFRF sued in November 2012 based on the agency’s reported moratorium on enforcing the electioneering restrictions against churches and religious organizations. No 501(c)(3) entity, including churches, may retain tax exemption if it endorses political candidates.
Yet the IRS had no procedure in place to initiate churches examinations, after a Minnesota district court invalidated the IRS’ prior procedure in 2009. Church groups began to openly engage in politicking at annual organized events such as “Pulpit Freedom Sunday.” An IRS official publicly reported in 2012 that the IRS had an ongoing moratorium on making church tax examinations.
On June 16, a year and a half after filing suit, FFRF received its first information from the IRS indicating it no longer has a policy of non-enforcement against churches. FFRF’s counsel, Richard L. Bolton, also discussed the policy with the Department of Justice, and on June 27, FFRF was apprised that the IRS has a procedure in place for “signature authority” to initiate church tax investigations or examinations.
Complicating the practical effect for now of the settlement is the global moratorium currently in place on IRS investigations of any tax-exempt entities, church or otherwise, while Congress conducts its probe on IRS tea party policies.
The intervening church filed a motion insisting: “FFRF should not be in a position to drop this lawsuit and file an identical lawsuit (and again put the Church’s interests in jeopardy) a week, a month, or a year in the future.” The Becket Fund has asked the federal court to dismiss the suit “with prejudice,” so that FFRF could not renew its challenge if the IRS reverts to taking no action on violative churches.
On July 29, FFRF filed a response making it clear it will only dismiss if “our agreement has teeth,” said FFRF Co-President Annie Laurie Gaylor, “to ensure that we can resume the suit if anti-electioneering provisions are not enforced in the future against rogue political churches.”
Alliance Defending Freedom, which has proclaimed Oct. 5 as Pulpit Freedom Sunday this year, filed a Freedom of Information Act request after learning of the July 17 agreement, insinuating that the IRS was withholding information.
Contrary to the intervenor’s contention, “there is nothing strange, collusive, or concealed here,” noted the IRS in a July 22 motion filed with the court.
Over the last few weeks, there have been numerous media outlets and news organizations reporting misleading and factually inaccurate information about FFRF’s joint dismissal of the FFRF v. Koskinen lawsuit. FFRF would like to set the record straight.
What was FFRF’s lawsuit about and what happened?
FFRF sued the Internal Revenue Service (IRS) in late 2012 to compel it to enforce its own regulations barring tax-exempt 501(c)(3) nonprofits from engaging in partisan political activity. FFRF had reason to believe that the IRS was not enforcing these regulations against churches or other religious organizations.In fact, a theocratic legal society, the Alliance Defending Freedom, is the chief sponsor and promulgator of “Pulpit Freedom Sundays,” in which it urges churches to openly flout the law and endorse from the pulpit. Many such churches have directly “turned themselves in” to the IRS to test the law.
In July 2014, FFRF agreed to voluntary dismissal of its case because recent clarifications by the IRS have remedied its concerns. FFRF is satisfied that the IRS does not at this time have a policy specific to churches of non-enforcement of its anti-electioneering provisions.
Doesn’t this mean the IRS is targeting conservative churches?
No.There is no change in federal law or IRS regulations; rather, the tax code is being enforced evenhandedly. There will be no impact or effect on any law-abiding 501(c)(3) groups, including churches. All that the IRS intends to do now is to follow an already existing objective process for enforcing electioneering restrictions in a way that ensures no nefarious targeting of any organization occurs.
Does this settlement prevent pastors from commenting on social issues, such as same-sex marriages, abortion, contraceptive coverage, etc.?
No. FFRF specifically challenged the IRS’s purported policy of “non-enforcement of the electioneering restrictions” as to churches and religious organizations. Section 501(c)(3) of the Tax Code prohibits all nonprofits — including churches and other religious organizations, and FFRF — from intervening in political campaigns as a condition of their tax-exempt status. This means these organizations are strictly prohibited from participating or intervening, directly or indirectly, in political campaigns on behalf of or in opposition to any candidate for elected public office.
Is FFRF targeting conservative churches because it disagrees with their political views on social issues?
No. Some news organizations and commentators have stated that FFRF is “targeting” conservative churches. This is simply untrue. Since 2006, FFRF has sent more than 50 letters to the IRS. asking for investigations into situations in which FFRF believes the tax code was violated. FFRF has acted on complaints from the public, who believe the law is being violated. FFRF letters to the IRS. about possible violations are made without regard to political affiliation or allegiance. For instance, in the 2012 election, FFRF sent a letter to the IRS regarding a pastor at a church in North Carolina who urged his congregation during worship services to vote for President Obama.
Furthermore, as a 501(c)(3) nonprofit organization, FFRF cannot take any partisan action. FFRF aligns itself with no political party.
Did FFRF withdraw the case because the IRS. agreed to “monitor” specific churches?
FFRF did not withdraw its suit pursuant to any agreement to “monitor” sermons and homilies for proscribed speech with which FFRF disagrees. As the court documents state, FFRF withdrew the case because it “is satisfied that the IRS does not have a policy at this time of non-enforcement specific to churches and religious institutions.”
Is FFRF “out to suppress free speech rights”?
No. As a defender of the First Amendment, FFRF respects the free speech rights of any individual or organization. Tax-exempt 501(c)(3) nonprofit organizations are afforded a special privilege in our country. If an organization chooses to be tax-exempt under 501(c)(3), it forfeits the right to engage in political campaign intervention. Churches and other religious organizations are free to engage in electioneering if they so choose, but they cannot abuse their tax-exempt privilege and remain tax-exempt.
Doesn’t a dismissal mean losing a case?
No. When parties settle a case, the case must be removed from the court’s docket. The dismissal is a procedure for doing so. FFRF’s case was dismissed “without prejudice” meaning FFRF can refile if the IRS fails to enforce the law.
— Written by FFRF Senior Staff Attorney Rebecca Markert
The Freedom From Religion Foundation is asking Oklahoma Attorney General E. Scott Pruitt to stop his smear campaign against FFRF, the nation's largest association of atheists and agnostics.
As part of an Aug. 5 records request to the Internal Revenue Service and the U.S. Department of Justice related to FFRF's recently settled suit against the IRS, Pruitt said:
"At the intersection of those two fundamental rights [free speech and free exercise] lies the right of religious organizations to encourage their members to engage in the political process in a manner consistent with the core tenets of their religions. The Freedom From Religion Foundation is unabashed in its desire to destroy that right, and the fact that this organization has now entered into an agreement with the IRS — an agreement that they call 'a victory' for their cause — is alarming."
In FFRF's Aug. 7 letter to Pruitt, Co-President Annie Laurie Gaylor said: "I write to correct your disparaging and unwarranted mischaracterization of our organization, which works not to 'destroy' the First Amendment but to uphold the law and the Constitution."
"FFRF agreed to voluntary dismissal of our case because recent changes by the IRS have remedied our concerns," Gaylor added. "FFRF is satisfied that the IRS does not at this time have a policy specific to churches of non-enforcement of its anti-electioneering provisions. As you are undoubtedly aware, there is an appropriate blanket ban against any and all 501(c)(3) nonprofits from engaging in political action, specifically such as endorsing political candidates."
Since agreeing to settle the suit July 17, FFRF has encountered a lot of misconceptions about the suit, the settlement and the law, which went into effect in 1954. FFRF is not "targeting" churches, Gaylor said.
"No tax-exempt 501(c)(3) nonprofit, church or otherwise, may lawfully engage in partisan, political action. Tax exemption is a privilege, not a right, granted by the government to certain categories of nonprofits in exchange for abiding by certain reasonable rules. Entities that wish to reap that major privilege must earn it, including by a ban on electioneering. Churches of course remain free to endorse any political candidate they want — but if they choose to electioneer, they choose to lose their tax-exempt privileges, just like every other partisan, politicking organization."
Pruitt also made some wildly misleading claims on the issue Aug. 5 on Fox News' "The Kelly File" with guest host Shannon Bream.
Gaylor called Pruitt's claim that FFRF “is unabashed in its desire to destroy [a First Amendment] right" unfortunate, ignorant and possibly slanderous. "Please cease and desist making untrue statements that damage our organization’s reputation and irresponsibly sensationalize and distort the simple facts of this case."
To clarify the issues, FFRF has put together an FAQ, which can be read here.
The Freedom From Religion Foundation has taken action against a well-publicized violation of the Civil Rights Act by a restaurant in Winston–Salem, N.C., which is offering a 15% discount to customers “who pray over their meals.”
Mary Haglund, owner of Mary’s Gourmet Diner, has reportedly offered the “Praying in Public” discount for four years. But when a Christian radio station posted an image of a customer’s receipt on its Facebook page, the story went viral.
FFRF Staff Attorney Elizabeth Cavell promptly wrote a letter yesterday (Aug. 4), informing Haglund, daughter of a missionary, that “it is illegal for Mary’s Gourmet Diner to discriminate, or show favoritism, on the basis of religion.”
With more than 21,000 members, including over 500 in North Carolina and an active state chapter, the Triangle Freethought Society, FFRF is the largest national association of freethinkers (atheists and agnostics), which acts as a state/church watchdog.
The federal Civil Rights Act accords all citizens “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation . . . without discrimination on the grounds of race, color, religion, or national origin.” As a place of “public accommodation,” Mary’s Gourmet Diner may not lawfully offer a discount only to customers who pray.
Even if the practice were inclusive of customers who engaged in prayer to all types of gods (e.g., Allah, Zeus, Satan), the “promotional practice favors religious customers, and denies customers who do not pray and nonbelievers the right to ‘full and equal’ enjoyment of Mary’s Gourmet Diner,” wrote Cavell.
“Any promotions must be available to all customers regardless of religious preference or practice on a non-discriminatory basis.”
Declare and share your nonbelief! Although the nonreligious — including one in five U.S. citizens — is a significant segment of the world population, many Americans have never knowingly met a nonbeliever. You can help dispel myths, educate and promote reason by adding your voice, face and message to FFRF's friendly neighborhood freethinker campaign. This is your chance to proclaim you're a freethinker and why. It's working for the gay rights movement. Now it's time for atheists and agnostics to come out of our closet. Many faces make Enlightenment work.
To protect the First Amendment rights of all residents of Warren, Mich., regardless of religious or philosophical beliefs or non-beliefs, the Freedom from Religion Foundation, the American Civil Liberties Union and Americans United for Separation of Church and State filed a federal lawsuit this morning challenging the city’s ban on an atheist booth in a city hall atrium where the city allows a prayer station.
The atrium has been set up by city officials as a public space that can be reserved by a wide variety of groups and individuals, including civic organizations and Warren residents. But the mayor is not allowing an atheist to use space in the atrium because his belief system “is not a religion.”
Since 2009, the city has allowed a local church group to run a prayer station in which volunteers distribute religious pamphlets, offer to pray with passersby, and discuss their religious beliefs with people who approach the station. The lawsuit filed today does not seek to have the prayer station removed, but instead asks the court to order the city to treat believers and non-believers equally.
The lawsuit was filed on behalf of Douglas Marshall, a Warren resident whose request to install a “reason station” was rejected by the city. Marshall wishes to set up a station that is similar in size, structure and function to the prayer station – a folding table and chairs with literature on display and available to the public – except that his station will offer information and opportunities for discussion from a non-religious perspective.
“Our Warren member simply wants the same access to the atrium that has been granted to others, including those who operate the prayer station,” said Annie Laurie Gaylor, FFRF co-president. “There’s no legally justifiable reason to deny Mr. Marshall his First Amendment rights.”
Said Dan Korobkin, ACLU of Michigan deputy legal director: “Once the government opens public space for use by private groups, it cannot pick and choose who can use the space based on the content of their message or whether public officials agree with that message. For instance, Warren officials would not be permitted to grant access to activists supportive of the mayor and reject the applications of activists who are critical of the mayor. The same logic extends to this matter: the city cannot allow speech supportive of religion and reject speech supportive of atheism.”
“The city has an obligation to serve all members of the community equally, regardless of their faith or their lack of faith,” said Americans United Associate Legal Director Alex J. Luchenitser. “Our laws make it clear that our government can’t adopt a rule book that favors one group over another.”
In April 2014, Marshall submitted an application to city officials to reserve space in the atrium for two days a week. According to the lawsuit, filed in the U.S. District Court for the Eastern District of Michigan, Marshall and other volunteers who operate the reason station would offer to have philosophical discussions with passersby who express an interest in a secular belief system.
Less than two weeks after it was submitted, Marshall’s application, although nearly identical to the application submitted by the prayer station volunteers, was rejected by Warren Mayor James Fouts. In the rejection letter, Mayor Fouts writes:
“To my way of thinking, your group is strictly an anti-religion group intending to deprive all organized religions of their constitutional freedoms or at least discourage the practice of religion. The City of Warren cannot allow this.”
"The government can't simply silence private speakers whenever it dislikes their message,” said Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief. "Nobody should be excluded from their own city hall based on what they believe — or don’t believe.”
In addition to Korobkin, Luchenitser, and Mach, Marshall is represented by Ayesha N. Khan of Americans United; Rebecca Markert and Patrick Elliott of the Freedom from Religion Foundation; and Michael J. Steinberg, Kary Moss and William Wertheimer of the ACLU of Michigan.
To read the complaint, click here.
To read the motion for preliminary injunction that was filed along with the complaint, click here.