Every time I talk about Pulpit Freedom Sunday, I inevitably get a comment from an audience member that goes something like this, “You know, if churches just unincorporated, they wouldn’t be subject to the IRS,” or “Because churches aren’t required to apply for tax exemption, they aren’t subject to 501(c)(3) of the tax code.” People have told me that churches have willingly gagged themselves in exchange for tax exemption and that they should just unincorporate or give up their exemption letter from the IRS and they could then be free to do what they want. Behind these questions and statements lies an admirable heart for the independence of the church. But these also demonstrate a fundamental and potentially dangerous misunderstanding of the law.

This misunderstanding has been propagated in different ways through the years in movements, booklets, and websites. The basic argument is that churches are free and if they don’t incorporate or ask for tax exemption from the government, then the IRS can’t regulate them or force them to pay income taxes (or do anything else for that matter).

This view is wrong under the law as it exists today. But in order to understand this, we need to take a few steps back. Churches are unique in that they enjoy a special status under the tax code. Normally, to be considered exempt from income taxes, an organization must apply for an exemption from the IRS and demonstrate that it meets the requirements to be considered one of the exempt categories of section 501(c) of the tax code. Every organization that does not fall within one of the exempt categories of section 501(c) of the tax code is considered taxable.

But churches are different. Under section 508(c)(1)(A) of the tax code, churches are exempt from applying to the IRS for tax exempt status. Thus, churches are automatically exempt from income taxes under the federal tax code without first applying to the IRS for recognition of exempt status.

This is where the misunderstanding comes in. Some think that this unique status of churches under the tax code means that churches are not regulated by the tax code at all.  This view is wrong.  The bottom line is that whether or not a church applies to the IRS for recognition of tax exempt status or chooses not to do so, they are still subject to the tax code.

Cases have dealt with this issue. In Taylor v. Commissioner of Internal Revenue, the United States Tax Court agreed that, under section 508(c)(1) of the tax code churches do not have to apply for tax exempt status and are considered automatically exempt. But the court also stated, “Nothing in section 508(c)(1) relieves a church from having to meet the requirements of section 501(c)(3).”  Basically what the Taylor court was saying is that churches are still subject to the restrictions in section 501(c)(3) of the tax code even if they never apply to the IRS for recognition of tax exempt status.

In a similar case called Universal Life Church v. Commissioner of Internal Revenue, the Tax Court stated:

Section 508(c) exempts various organizations, including churches from the notification requirements of section 508(a). Thus while most organizations claiming tax exempt status under section 501(c)(3) must inform the Commissioner of their application for exempt status… churches need not make such a notification.

Despite this, the Tax Court went on to hold that this unique status does not prevent the Commissioner of the IRS from auditing a church.

The upshot of these cases is that even though churches are not required to apply for a tax exemption from the IRS, churches are still subject to the restrictions in section 501(c)(3) of the tax code. That means all churches are required to abide by 501(c)(3).  And if you think about this logically, it makes sense.  The way the federal tax code works is to begin from the assumption that all organizations are taxable unless they meet an exemption from taxation specified in the tax code.  Thus, for a church to be considered exempt from taxation, it must meet a specific exemption under section 501(c) of the tax code.  The specific exemption that churches fall under is section 501(c)(3).

And this is where the problem arises because the restrictions on churches in 501(c)(3) are unconstitutional. The passage of the Johnson Amendment in 1954 added a restriction to 501(c)(3) that allows the IRS to censor a pastor’s sermon from the pulpit.  That’s what Pulpit Freedom Sunday is intended to address. It doesn’t help for churches to hide their heads in the sand and pretend like the tax code doesn’t apply to them. Instead, churches should stand and boldly confront the unconstitutional restriction and regain the right of pastors to speak freely from their pulpits without any restriction.  If you are a pastor, visit our website and sign up to participate in Pulpit Freedom Sunday.

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I recently explained the importance of the Supreme Court’s decision affirming a church’s right to control whom it employs as a teacher in its religious school in a post you can read here. Unfortunately, the vital protection this case provides for religious freedom has largely been lost on the mainstream media. Instead, they’ve often focused on how this decision may affect teachers at religious schools. One AP article went so far as to assert that a teacher of Jewish Studies at a Jewish school should be seen as a “teacher whose subject is religion, not a religious teacher.” In the context of a religious school, this is completely at odds with the concept of religious freedom.

The Court of Appeals in the Hosanna-Tabor case made a similar argument (which was thankfully rejected by the Supreme Court). It opined that the teacher who sued the religious school wasn’t a minister because she spent six hours a day teaching secular subjects like math, social studies, and music.  Only an hour or so was spent on exclusively religious instruction. The fact that the teacher also lead weekly chapel services, taught a 30-minute religion class four days per week, lead prayer three times per day, and taught a morning devotional was considered to be largely irrelevant.  So the school was prohibited from firing the teacher, even though she violated church teachings regarding mediation of disputes among believers.

The appeals court (and the Associated Press) failed to recognize something even Christians sometimes forget – our biblical worldview and Christian principles affect all aspects of our lives.  That certainly includes how we teach our children all subjects – even those that don’t appear to be “religious” – such as music and social studies.  It even includes math, as demonstrated by the great mathematicians Sir Isaac Newton and Rene Descartes. And it certainly includes religious classes like Jewish Studies at a religious school that has as its purpose inculcating the religious theology and values of a particular religion.

Saying the Hosanna-Tabor case undermines the rights of teachers is like saying the desegregation case Brown v. Board of Education wrongly ignored the rights of teachers who wanted to only teach certain kids. The larger, more important, principle of elimination of racism – or protection of religious freedom in this case – is being missed. Thankfully, all nine Justices of the Supreme Court aren’t influenced by the misguided opinions of the Associated Press.

The Washington State Legislature is considering passing a bill that would allow same-sex couples in the state to “marry.”  This bill is the latest, of course, in the homosexual agenda’s march to abolish the definition of marriage.  Normally a bill legalizing same-sex “marriage” would be bad enough.  But this bill goes a step farther and poses a clear and present danger to the religious freedom of churches.  Section 7 of the SB 6239 says the following:

Consistent with the law against discrimination, chapter 49.60 RCW, no religious organization is required to provide accommodations, facilities, advantages, privileges, services, or goods related to the solemnization or celebration of a marriage unless the organization offers admission, occupancy, or use of those accommodations or facilities to the public for a fee, or offers those advantages, privileges, services, or goods to the public for sale.

Let me break down this legalese.  What this bill says is that if a church rents out its facilities for non-members to use for weddings, then it will be forced to allow a same-sex couple to use its facilities for a same-sex “marriage” ceremony.  Many, if not most churches, will rent their facilities to members of the public who want to use the church building to get married.  Most churches will generally ensure that the people who are using the facilities are not going to use them in a way that is inconsistent with the church’s religious faith and mission.  But the State of Washington is considering forcing churches to open their sanctuaries to same-sex “wedding” ceremonies.

Lest you think this is an isolated occurrence, a judge in New Jersey recently ordered that a church must allow its facilities to be used for same-sex “wedding” ceremonies despite the church’s religious beliefs against such relationships.  The Judge’s rationale in ordering the church to open its facility to same-sex “weddings” was that  the Constitution allows “some intrusion into religious freedom to balance other important societal goals.”

All of this might sound surprising and troubling – and it is.  But for those who understand the inherent and unavoidable conflict between the radical homosexual agenda and religious freedom, the Washington Legislature’s bill and the New Jersey church case are simply sad reminders that we face a culture and a society increasingly willing to trample religious freedom in the name of sexual liberty.  Consider Chai Feldblum, President Obama’s appointed head of the Equal Employment Opportunity Commission (the EEOC).  Ms. Feldblum heads the agency tasked with eliminating discrimination in the workplace.  When she was asked what should happen “when push comes to shove, when religious liberty and sexual liberty conflict,” she admitted, “I’m having a hard time coming up with any case in which religious liberty should win.”  For those like Feldblum, the New Jersey judge, and the Washington State legislators in favor of SB 6239, the church’s freedom to follow its own religious beliefs simply do not matter.  As the New Jersey judge put it, the Constitution allows “some intrusion into religious freedom to balance other important societal goals.”  Put simply, religious freedom takes a back seat to sexual liberty.

It’s not too late to stop this radical attack on religious freedom.  As one court put it, the freedom of religion contained in the First Amendment is our “first freedom.”  The Washington State Legislators in favor of SB 6239 need to be reminded of this fact by a vocal populace that is tired of having sexual liberty foisted on society at the expense of religious freedom.  Speak Up now before it is too late.  And stand with ADF as we fight these battles in New Jersey and elsewhere.

Doug Napier has a Christian Post column out today that looks at how the repeal of DADT has played right into the hands of homosexual activists, and how, ironically, even though “Don’t ask, Don’t tell” has been done away, we still can’t ask.

The column can be viewed here

After DADT was stripped away last year, the military entered 2012 in a whole new world. It’s one in which the dismantling of DADT has actually provided homosexual activists the momentum they needed to step up and try to fashion not just the military in their own image, but other related agencies and associations as well.

Earlier, Kevin Theriot blogged about the Supreme Court’s decision in EEOC v. Hosanna-Tabor.  The case was a phenomenal win for religious freedom and has far-reaching implications.  In analyzing the opinion, one important implication is that the Supreme Court has announced heightened protection for the internal affairs of a church and for situations that affect the faith and mission of the church.

In a court decision from 1990 called Employment Division v. Smith, the Court allowed the government greater latitude to restrict the free exercise of religion.  The Court held in Smith that if a law was neutral as to religion and if it was generally applicable to all people, then the government was allowed to burden the free exercise of religion.  The Smith case marked a drastic departure from the Supreme Court’s earlier precedents which uniformly held that any law, even if that law was neutral and generally applicable, could not burden the free exercise of religion unless the law was justified by a compelling governmental interest that was advanced in the least restrictive means available.  This test is the strongest test available under the constitution.  In applying this test over the years, the Court candidly acknowledged that the test was strong medicine and that many laws burdening the free exercise of religion did not meet this test and were invalidated because they violated the Free Exercise Clause of the First Amendment.

Critics of Pulpit Freedom Sunday frequently cite to Smith and say that the Johnson Amendment is a law that is neutral and generally applicable so churches have no valid legal argument that the Johnson Amendment violates the Free Exercise Clause.  The Hosanna-Tabor decision changes that analysis, though.  In Hosanna-Tabor the Supreme Court retreated some from its analysis in the Smith case.  It stated: “Smith involved government regulation of only outward physical acts.  The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.”  Essentially, the Supreme Court created a “church exception” to the Smith case.  This means that a law that may in fact be neutral and generally applicable will now have to meet the pre-Smith compelling interest standard if it interferes with internal church matters that affect the faith and mission of the church itself.  The Supreme Court, in effect, broadened and strengthened the Free Exercise rights of churches.

This is good news for pastors chafing under the unconstitutional restriction of the Johnson Amendment.  What affects the faith and mission of the church itself more than a governmental restriction on a pastor’s sermon from the pulpit?  By allowing the government to punish pastors for preaching a certain way from the pulpit, we are allowing the government to drive and change the faith and mission of the church itself.  By allowing the IRS to declare certain topics to be off-limits or to prohibit the application of biblical truth to elections and sermons, we are allowing the government to dictate what the faith and mission of the church is and how it should be applied and proclaimed from the pulpit.

The Hosanna-Tabor case means that the IRS will now have to demonstrate a compelling reason for restricting a pastor’s sermon from the pulpit.  They cannot do so.  In fact, there is no legitimate reason for the Johnson Amendment.  And if you take a moment to understand the history behind the adoption of the Johnson Amendment, you’ll understand just how true that is.  Hosanna-Tabor is one more indication that the Johnson Amendment is unconstitutional and should be struck down at the earliest opportunity.

Pastors should be encouraged by the Supreme Court’s recent decision.  Now is the time to seize the opportunity and reclaim the right of pastors to speak freely from their pulpits without fearing governmental censorship or intimidation.  If you are a pastor, please sign up now to be a part of Pulpit Freedom Sunday.  For everyone else, forward this to your pastor and encourage them to sign up for Pulpit Freedom Sunday as well.  Standing together, we can and will make a difference.