Tax Law Bans on Political Campaign Speech by Houses of Worship: Inappropriate Government Censorship and Intrusion on Religion

Abstract

To ensure their legitimacy, western liberal democracies depend on the fullest protection for freedom of political and electoral speech. Governments should not interfere with or chill these fundamental rights of democratic participation without sufficiently compelling reasons to do so. In the US, however, despite the majestic protections of the First Amendment, anomalously there remains a large class of nonprofit entities that are statutorily precluded from this type of crucial political involvement, and this exceptional restriction on speech is incongruously based in the federal tax code. In particular, spiritual leaders who feel theologically compelled to speak out on critical moral and political issues of the day risk the tax-exempt status of their houses of worship if they cross an amorphous line into explicit or implicit political campaign speech. Both freedom of expression and religious freedom are at stake, and the tax system is a particularly inapt and inept mechanism for restricting speech and influencing the political activity of houses of worship.