Freepreach.org - Protecting the Free Expression of All Religious Traditions
Cases
This page is devoted to relevant legal decisions that affect the ability of ministers to preach freely from the pulpit, without fear of official reprisal. Currently, there is a dearth of such precedent, but we expect new challenges to be raised in the coming years. The primary case, Branch Ministries v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000), and its implications in this area of law, is discussed in detail below. The Becket Fund for Religious Liberty was counsel in Rigdon v. Perry, 962 F. Supp. 150 (D.D.C. 1997), another case explicated here. Future cases will be added as the courts hand them down.
Branch Ministries v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000)
Well aware that Section 501(c)(3) is on shaky constitutional ground when enforced against the political speech of religious organizations, the IRS has chosen its legal battles very carefully. Specifically, the IRS waited for an extreme case of church electioneering before litigating the issue fully in court.
The government's patience paid off in Branch Ministries v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000).Four days before the 1992 election, a church in upstate New York took out full-page ads in two daily newspapers with national reach, USA Today and the Washington Post, specifically urging citizens not to vote for a particular candidate by name, and asking for "tax-deductible donations" to cover the cost of the ad.
Surprising almost no one, when the issue finally reached the courts, the federal district court both found a violation of 501(c)(3)'s absolute ban on "intervention in a political campaign," and rejected the church's constitutional challenge to the particular application of the ban. The U.S. Court of Appeals for the District of Columbia Circuit affirmed. It remains the only Court of Appeals to have reached this conclusion.
Since then, however, the IRS has touted the decision as virtually a blanket authorization to enforce the limits of 501(c)(3) with constitutional impunity against the political speech of churches. But because the facts of Branch Ministries are so exceptional, the decision is unlikely to be repeated or applied broadly.
Specifically, what the court found to be "intervening in a political campaign"--running full-page ads in two national newspapers four days before an election, specifically naming a candidate, urging readers to vote against him, and soliciting donations in support--says very little about what elsemay fall within that legal category.
What about the kind of speech or conduct that an ordinary, socially engaged, bona fidehouse of worship might actually consider undertaking in connection with an election? For example, what about a minister preaching from the pulpit to his or her own congregation--even about particular candidates and voting--rather than in a newspaper ad to society at large? Is that also "intervening in a political campaign"? Branch Ministriesdoes not resolve that question.
The constitutional reasoning of Branch Ministries also has narrow application. To begin with, the church challenged enforcement of the 501(c)(3) limits by alleging a Free Exercise violation, selective prosecution, and viewpoint discrimination. Yet Branch Ministries simply does not address significant other constitutional harms—including the regulation’s injury to freedom of association principles and its conditioning receipt of tax benefits on the church relinquishing its constitutional rights.
In addition, the court's reasoning could easily be limited to its facts. The church argued that it should not be forced to choose between receiving a government benefit (the tax exemption), and violating its religious beliefs. The Branch Ministries court rejected that argument, but only because the particular church never claimed that refraining from running the ads would violate its religious beliefs. See 211 F.3d at 171.
One can easily imagine a case where a house of worship does believe it has a religious obligation to run ads like these. What result under the Free Exercise Clause? Once again, Branch Ministries leaves that question open.
It is worth noting that, even though the church in Branch Ministries ultimately lost in court, it did not lose its tax-exemption permanently. To the contrary, the court specifically noted that "the impact of the revocation is likely to be more symbolic than substantial. . . . [I]f the Church does not intervene in future political campaigns, it may hold itself out as a 501(c)(3) organization and receive all the benefits of that status." Branch Ministries, 211 F.3d at 142. In other words, once the church stopped running political ads during election time, it automatically regained its tax-exempt status as a church. Id. at 172.
Rigdon v. Perry,962 F. Supp. 150 (D.D.C. 1997)
The Becket Fund successfully sued the Pentagon over its gag order that barred military chaplains from preaching about legislation during sermons. Two military chaplains-a Catholic priest and an Orthodox Jewish rabbi-who desired to join the effort supporting H.R. 1122 (the Partial-Birth Abortion Ban Act of 1997) argued that the gag order violated their First Amendment rights under the Free Exercise Clause, the Free Speech Clause, and the Religious Freedom Restoration Act, 42 U.S.C. 2000bb, et. seq.
The court agreed with The Becket Fund and held that the gag order was unconstitutional:
What we have here is the government's attempt to override the Constitution and the laws of the land by a directive that clearly interferes with military chaplains' free exercise and free speech rights, as well as those of their congregants. 962 F. Supp. at 165.
In particular, the court rejected all of the arguments advanced by the government to support their censorship of speech from the pulpit. For example, the government argued that it was not an important part of the plaintiffs' religion to urge their congregations to contact Congress about particular moral or political issues. The court soundly rejected that argument, holding that it was not the role of the government "to determine whether encouraging parishioners to contact Congress [about a particular issue like] the Partial Birth Abortion Ban Act is an 'important component' of the [plaintiffs'] faiths." Id. at 161.
Moreover, the court held that "[e]ncouraging parishioners to contact Congress" about legislation addressing moral issues related to religious faith "appears to be no less important to the [plaintiffs' faith] than other religiously-motivated activity courts have held to be important enough to a religion such that its prohibition amounts to a substantial burden." Id.
The government then argued that the chaplains' contemplated speech was "not religious" but merely "political." The court rejected this argument also, holding that "it is not the role of this Court to draw fine distinctions between degrees of religious speech and to hold that religious speech is protected but religious speech with so-called political overtones is not." Id. at 164.
Finally, the court held that any interests advanced by the government for their censorship policy were "outweighed by the . . . chaplains' right to autonomy in determining the religious content of their sermons." Id. at 162.
It is imperative to note that these same interests would likely be asserted by the government in the private freedom-to-preach context as well, and similar reasoning to reject such would apply. To summarize the holding: The State cannot interfere with the right of religious leaders to preach from the pulpit on political issues, even if those ministers are in the military.