Originally published on Forbes.com Feb 23rd, 2014
The Freedom From Religion Foundation has several cases going against the IRS. There is a recent development in my least favorite. That would be Freedom From Religion Foundation v Koskinen in the Western District of Wisconsin. The issue in this case is that the IRS, according to FFRF, is pretty much ignoring the political activities of churches. Some churches have been like daring the IRS, or maybe even double daring, if not triple dawg daring the IRS to do something about it.
The dare is called Pulpit Freedom Sunday. It is scheduled for October 5th this year. Pastors commit to give political sermons, in effect, daring the IRS to do something about it.
Here is the deal. Imagine you are John Koskinen, IRS Commissioner. You are supposed to collect over two trillion dollars. You’ve got 90,000 people working for you, but only about 20,000 are actually involved in enforcement – revenue agents, revenue officers, etc. They are mostly trained as accountants. How much will you bring in from having some accountants listening to sermons to see how political they are?
Something close to zip, bupkus or maybe nada. How much tsoris do you generate from the exercise? It will make Teapartygate look like a picnic. Seems pretty sensible to me to pass on the issue, but the Freedom From Religion Foundation is not content to let this particular sleeping dog lie.
The main defense, so far, has been that FFRF does not have standing. The latest development is that somebody has asked to intervene in the case. That would be Father Patrick Malone of the Holy Cross Anglican Church. I have to tell you, I hear Malone – Holy Cross, the next word that pops into my head is not Anglican, but that is probably a Central Massachusetts prejudice.
The Holy Cross Anglican Church, formerly St. Edmund’s, was the first parish in Wisconsin to leave the Episcopal Church to join the Anglican Communion. If you don’t follow these things, suffice it to say that this would put them on the conservative side. Holy Cross holds its services at St. Mark’s Lutheran Church in Milwaukee. To this day the English monarch holds the title “Defender of the Faith” thanks to a book that Henry VIII wrote explaining how wrong Luther was and, of course, it was Henry VIII that started Anglicanism, so it is good to see that people get over these things eventually.
At any rate, the reason they meet at the Lutheran church is because the Episcopal Diocese won the lawsuit about the church property. Holy Cross has a budget for 2014 of $81,370 including a rector’s housing allowance of $15,000 – likely giving Father Malone a dog in one of FFRF’s other fights with the IRS (Judge Barbara Crabb ruled in November that Code Section 107(2) which would exempt that housing allowance from income tax is unconstitutional).
It makes you wonder how Holy Cross can afford to get involved in this lawsuit. I doubt the IRS could get 10 grand out of totally blowing up Holy Cross’s exempt status so Father Malone would probably be left to tell his flock how to vote as often as he wanted if enforcement resources are allocated in any sort of rational manner.
As it turns out, Holy Cross Anglican’s intervention is being backed by The Becket Fund which according to its 990 grossed $2,684,403 in the year ended September 30, 2011. The Becket Fund is pretty ecumenical in its quest to defend religious liberty. Among its cases were that of a Jewish prisoner wanting Kosher food and a Sikh woman who thought she should be able to carry a ceremonial dagger on the job. She was working for the IRS.
Judge Lynn Adelman’s decision to let Father Malone intervene is pretty confusing. The IRS and FFRF are not arguing about whether churches should be able to go about politicking and maintain their exempt status. The IRS is denying that it gives churches a free pass on the issue. Who knows? Maybe if there were a couple of hundred thousand revenue agents, they would swamp the pews on October 5 and the exempt status rejections would start to flow. Of course, they still might not get to the Holy Cross Anglicans in the Lutheran Church. If they did, though, Father Malone could have his day in Tax Court.
If the Foundation prevails, it will not obtain an order requiring the IRS to immediately investigate whether Father Malone and Holy Cross have violated § 501(c)(3)’s electioneering restrictions. Rather, because the IRS does not have infinite resources and must exercise discretion in choosing which tax-exempt entities to investigate, it is uncertain whether the IRS, if compelled to enforce the electioneering restrictions against churches, would ever take any action against Father Malone or Holy Cross.
The movants contend that the IRS’s enforcing those restrictions against churches and religious organizations would violate the Establishment Clause. So if the Foundation prevails, a cloud would be cast over the movants’ argument that the Establishment Clause prevents the IRS from enforcing the electioneering restrictions against churches and religious organizations. The movants should be permitted to intervene in this case for the purpose of protecting their argument.
The FFRF case against the IRS that has the greatest significance, in my mind, is the one about requiring churches to file Form 990. It appears that Holy Cross Anglican is pretty transparent in its finances already, so they might not be sweating that one too much.
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