Since ADF launched the Pulpit Initiative in 2008, critics have attempted to argue that ADF is asking pastors to “break the law.” While there are many good reasons why the Pulpit Initiative is not an attempt to have pastors “break the law,” I want to focus on one primary reason for the Pulpit Initiative strategy and hopefully demonstrate why it is important to follow this strategy to bring about a much-needed change to a very unconstitutional law.
When a citizen of the United States is threatened with enforcement of an unconstitutional law against him, he can file a lawsuit before the law is applied to him and ask the Court to declare it unconstitutional in advance of its enforcement or to issue an injunction preventing the law from being enforced against him. These are called prospective challenges to the law because they seek to have the law struck down as unconstitutional before it is actually applied to the person. The Supreme Court has allowed such challenges for years. In 1974, the Court stated in the case of Steffel v. Thompson that, ”[I]t is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights.”
As lawyers know, there are two ways to obtain prospective relief before a statute is actually applied against their client. One way is through the use of the Declaratory Judgment Act. This act allows for a Court to issue a declaration that a statute is unconstitutional even before it is applied to an individual. The second way is where a court issues an injunction prohibiting the application of a statute to an individual. ADF uses these two statutes frequently to launch challenges to unconstitutional laws or actions of government officials.
So why can’t ADF just file a prospective lawsuit against the IRS asking the Court to issue a declaratory judgment that the Johnson Amendment is unconstitutional as applied to a pastor’s sermon? Or why couldn’t ADF file a lawsuit against the IRS and ask the Court for an injunction to stop the IRS from applying the Johnson Amendment to a pastor’s sermon from the pulpit?
The easy answer to why such a lawsuit would not work is that Congress has prohibited lawsuits against the IRS that seek either a declaratory judgment or an injunction. Hang with me here because this is where things get a bit technical. I’ll try not to bore you unnecessarily with the legalese, but it is important to understand why the Pulpit Initiative strategy is required in order to challenge the Johnson Amendment.
The Anti-Injunction Act is a statute that prohibits certain lawsuits that seek injunctions. The Anti-Injunction Act prohibits a person from asking a court for an injunction in cases involving taxes. Similarly, the Declaratory Judgment Act allows for a court to issue a declaratory judgment except in cases involving taxes. Put simply, both of these statutes together prevent someone from filing a prospective lawsuit against the IRS. The reasoning is that if the courts were open to litigants to challenge the IRS, then everyone would want to sue the IRS. The courts have stated that opening the doors to such lawsuits would prevent the maintenance of a sound tax system. Therefore, Congress has taken the position through these statutes that in cases involving taxes, individuals and groups can only challenge the IRS after they have gone through the IRS administrative process and then challenge the IRS application of the tax code to the taxpayer. This means sometimes that the taxpayer must incur an IRS penalty before he can then challenge the constitutionality of the tax code.
For those of you still awake and reading this, the bottom line is that the only way to have the Johnson Amendment declared unconstitutional is for the IRS to apply it to a specific pastor’s sermon and then to launch a court challenge to that decision. That’s why the Pulpit Initiative strategy is necessary.
If you are a pastor and you are interested in standing together with other pastors to restore your right to speak freely from your pulpit on any and all issues Scripture addresses, then sign up today for the Pulpit Initiative.