I am a three-a-day shul-goer who has never heard a rabbi endorse a political candidate from the pulpit or seen a partisan statement posted in the facility. A synagogue is a place to promote Judaism, not politics. Like most rules, this one has an exception, it being when a candidate is overtly anti-Semitic or hostile to Israel. In such a situation, the powerful likelihood is that I and other attendees would not have to be prompted.
This brings me to the emerging, yet so far feeble, effort of a small number of conservative Christian clergy to challenge Internal Revenue Service rules mandating the loss of tax-exempt status by religious bodies if the pulpit is used for political endorsements. For all of the fire and brimstone of these passionate religious leaders, few have stepped forward, I imagine because most are fearful of the consequences. As often happens, money trumps conscience.
Predictably, the clerical announcement has drawn the ire of the New York Times and other fierce but selective proponents of free speech. In an angry editorial that also castigated Senator Obama for being receptive to faith-based initiatives, the Times viewed the challenge to the IRS as a threat to church-state separation. Echoing what is certainly the dominant “Jewish” sentiment, the Forward was even more forward in bemoaning the dangers that will befall the Republic. Relax ye faithful defenders of faithlessness. Our Constitution is not under siege.
I say onward Christian soldiers. As for our flock, in an earlier front-page article the Forward inadvertently gave credence to the challenge to the IRS rules by reporting on a conference call arranged by Rabbi David Saperstein of the Religious Action Center of Reform Judaism between an IRS representative and about 150 Jewish leaders who are chomping at the bit to endorse Mr. Obama without endangering the precious tax-exempt status of their affiliations. To borrow from the rhetoric of those who criticize the Orthodox for excessive legalisms, the conference call was an inquiry into how many angels can dance on the head of a pin. The focus was on how Jewish and other clergy, as well as other non-profits, can enter the political thicket and be partisan without putting at risk their tax exemptions. An example is the following asked of the IRS man: “Can a rabbi endorse on his personal blog?”
One question that didn’t have to be asked concerned the familiar tactic of endorsements in publications being accompanied by the relevant affiliation, with an asterisk in small type pointing to the disclaimer in even tinier type at the bottom of the page, “For identification purposes only.” According to the IRS, this is kosher, as are a fascinating array of cues, winks, hints, nuances, suggestions, etc. that are described in the agency’s tax guide for “Churches and Religious Organizations.”
Any legal arrangement that is chock full of holes and loopholes as is the tax code on this issue should be suspect. Because enforcement is determined nearly always by subjective factors, there should be added reasons for concern. Liberal, as well as conservative, clergy have been knee-deep in partisan activity for eons and certainly this was true of Reverend Martin Luther King and his church, as well as scores of Black churches and religious officials. Our society benefitted enormously from their advocacy. If a redneck sheriff is up for re-election, I would hope that Black clergy would be in the forefront of the campaign against him. The primary obligation must be to eschew selective enforcement based on ideological preferences.
The claim is made that tax-exempt status is a trade-off, with nonprofit groups being given a significant benefit in return for their foregoing partisan activity. This is a seductive argument, based, however, on a flawed appreciation of the centrality of the First Amendment in our democratic scheme. There is no trade-off because free speech is not the consequence of a bargaining process in which our government can tell the nonprofits, “We will give you this, if you give up that.” Free speech is constitutional bedrock and while in emergency and very limited circumstances it can be curtailed, it can never be forfeited. The separation clause in the First Amendment is not at war with the free speech clause.
Indeed, church-state separation may insulate the clergy and religious groups against governmental action that seeks to restrict what might be said from the pulpit or in another religious setting because free speech is fundamental and not a gift from the IRS or Congress. Tax exempt status cannot be employed as a bully pulpit to coerce silence.
The Supreme Court has not ruled on this issue, but lower courts have upheld the IRS rules and tax experts generally believe that should the Christian clergy be punished by the IRS and then appeal to the courts, the result will be the same. This is the view of Marc Stern, the respected general counsel of the American Jewish Congress. My bet is in the other direction, given how the Supreme Court when it was less conservative than it now is invalidated legislation restricting campaign contributions. The present composition of the High Court may tip the judicial scales in favor of the clergy. Perhaps the American Civil Liberties Union and other customary champions of free speech will join in the challenge.
To repeat: I do not believe that politics and religion are a good mix. When they are entwined, religion is reduced from what should be its spiritual heights to an enterprise that too often is not accompanied by good motives or good deeds. As a matter of constitutional right, however, the clergy are invested with the same freedoms that the rest of us have and that includes speech that we do not like.