Can the IRS Silence Religious Organizations

Abstract

In the years following the 2004 presidential election, the Los Angeles Times reported that the Internal Revenue Service threatened revoking the tax-exempt status of the All Saints Episcopal Church in Pasadena because during a 2004 sermon, a church rector stated that he opposed the Vietnam and Gulf wars and that Jesus would have disapproved of the Bush Administration's preemptive war doctrine. The rector did not tell his parishioners who to support in the 2004 election, however. This threat of revoking an organization's tax-exempt status is just one example of the IRS's recent and unprecedented aggressiveness in seeking out violations of the Internal Revenue Code's prohibition on political intervention by Section 501(c)(3) tax-exempt organizations. Indeed, over a hundred organizations are still under review by the IRS for actions they took in relation to the 2004 presidential campaign. A great number of those under review are religious organizations. Under the IRS's application of the limitation on politicking, these religious organizations are treated in the same manner as other Section 501(c)(3) organizations. This treatment, however, fails to take into account religious organizations' special status under the First Amendment. While some scholars have recognized that Section 501(c)(3)'s limitation on political intervention inhibits religious organizations' exercise of religion, they have failed to recognize that the IRS's application of the limitation implicates both free speech and free exercise concerns, making it constitutionally suspect under Employment Division v. Smith, 494 U.S. 872 (1990). This Article challenges scholars' dismissal of a viable First Amendment claim in this context and argues that the IRS regulations applying the Section 501(c)(3) limitation must be more deferential when applied to religious organizations so as not to be vulnerable to invalidation under a Smith hybrid claim.