Atheists Can Sue IRS Over Failure To Enforce Limits On Churches' Political Speech

Nick Wing ("The Huffington Post," August 22, 2013)

The Freedom From Religion Foundation took home an important victory on Monday, when a federal judge in Wisconsin ruled that the group could proceed with its lawsuit over the Internal Revenue Service's alleged failure to enforce a ban on partisan politicking by tax-exempt religious groups.

The IRS had earlier filed a motion to dismiss the case, which the national foundation for atheists and agnostics had filed after the November elections last year. U.S. District Judge Lynn Adelman denied the motion on Monday, writing that the FFRF "has standing to seek an order requiring the IRS to treat religious organizations no more favorably than it treats the Foundation."

Tax-exempt religious organizations, as well as other educational and charitable groups registered under 501(c)(3) of the federal tax code, are prohibited from partisan electioneering. The FFRF suit contends that the IRS is failing to enforce that restriction particularly when it comes to churches, which the group argues constitutes a violation of the establishment clause of the First Amendment. The suit also claims that the alleged IRS inaction undermines equal protection rights by giving preferential treatment to tax-exempt religious organizations over other 501(c)(3) groups, including the FFRF.

Annie Laurie Gaylor, the FFRF's co-president, applauded Adelman's decision in a statement.

“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.”

Adelman's ruling came just days after a commission set up by Sen. Chuck Grassley (R-Iowa) submitted its recommendation to the IRS, urging it to scrap the rules against partisan political speech by religious institutions. The panel of church and nonprofit leaders and legal experts also said that the IRS wasn't currently enforcing those rules.

The FFRF has argued that allowing churches and other 501(c)(3) groups to legally endorse candidates and engage in partisan politicking would be catastrophic. In her statement, Gaylor went as far as to say that such a move would make the Supreme Court's controversial Citizens United campaign finance decision "look like child’s play."

In recent years, religious institutions have taken clear steps to challenge the IRS over political speech. Many tested the agency's willingness to enforce the restrictions last October with a nationwide event dedicated to breaking tax rules and endorsing mainly Republican candidates. The IRS took no action.

The First Amendment generally allows religious leaders to speak on any issue. But candidate endorsements are disallowed as a condition of religious institutions' tax-exempt status, which has saved them $145 billion over 10 years.